Lowering the Bar

Why Dannielynn Gets Everything

For those of you who are closely following the Anna Nicole Smith story, this article by Professor Joanna Grossman clearly sets out the legal reasoning behind Judge Larry Seidlin's "odd," "tearfully delivered," but also apparently correct ruling in the Broward County case.

There is also a link to Judge Seidlin's written and likely tear-stained opinion, in which he notes, among other things, his feeling of wonder that the case ended up in his courtroom.  Ultimately, he concludes, there is no real explanation -- the "dominoes of the universe" simply fell in such a way that he would get his 15 minutes of weepy fame.

Grossman also explains why the baby gets all of Smith's estate.  The short version -- and I should stress that what I knew about wills and trusts was loaded into short-term memory for the sole purpose of taking the bar exam -- is that the bequests in Smith's will (assuming it's even valid) lapsed because her son was the sole beneficiary, and he was already dead.  That means she basically died intestate, and under intestacy statutes the baby is the next-of-kin.  Baby don't have to share with Granny, neither, so there will be one less garish mansion with a huge, dollar-sign shaped pool in Texas for the foreseeable future.

Thus, baby gets the money, and the battle now turns to who gets the baby.  That paternity suit is already raging in California court.  Hopefully, it will be resolved by the results of the poll on this website, in which I am currently leading the second-place candidate, Superstars of the Mexican Wrestling Federation, by a wide margin, with photographer Larry Birkhead tied for third place with Urkel.

Link: FindLaw.com

New Law Punishes Husbands Who Are "Jealous" or "Indifferent"

A law passed this month in Mexico imposes criminal penalties on men who are "jealous" or who are "indifferent" toward their wives.  The law would likely violate the Equal Protection Clause in the U.S. because it applies only to husbands and not wives, but Mexican prosecutors were quoted as saying the disparate treatment was necessary in order to "level the playing field" for women because of domestic violence.

The law apparently is meant to stop abusive treatment before it starts by punishing the allegedly pre-abusive conduct of jealousy, indifference, and/or "lack of love."  But the definitions given of these offenses by the prosecutor were very broad.  Special Prosecutor Alicia Elena Perez Duarte said that men who "phone their wives every half an hour to check up on them, constantly suspect them of infidelity or try to control the way they dress" are committing the "crime of jealousy."  A man who stops talking to his wife, refuses to have sex or tells his wife she is "crazy" to think he is having an affair (even if she catches him having one) would be guilty of "indifference."  The law suggests a penalty of up to five years in prison for these offenses, although individual states will set the punishments.

Thus, under the new law, it appears to be criminal either to call your wife too often or to not call her enough.  Men are used to these kinds of dilemmas, but we typically don't face five years in jail for getting it wrong.

While domestic violence is a serious problem in Mexico (and many other places, of course, such as in a room where you try to tell your wife she is "crazy" to think you are having an affair when she has just caught you having one), the approach taken by this law, at least as Perez Duarte defined it, seems pretty Draconian.  But she reiterated it was necessary to act early because of what the early conduct can lead to -- and the way she described it, it's a pretty darn slippery slope: "If we do not stop this from the beginning," she said, "it turns into beatings, and the beatings turn into more beatings and rape, until it gets out of hand, and whoops, she died."

I'm not making light of the problem, just suggesting the law could devote a little more scrutiny to the links between "we don't talk enough" and "whoops, she died."

Link: Reuters via Yahoo! News.

Lodi Nut Company to Close Gift Shop Due to Terrorism Concerns

The Lodi Nut Company, of Lodi, California, says it will be forced to close its factory gift shop at the end of this month because the cost of complying with Homeland Security regulations is too high.  Terrorists are not yet known to have directly targeted American nuts, but company president Kelly Suess said this week that because the company manufactures food, extensive post-9/11 regulations apply.  "They're trying to protect the entire food chain," Suess said.

The regulations require the company to register with the government, enforce employee ID requirements, and install surveillance cameras and electronic gates, among other things.  Any individual customer wishing to buy from the gift shop would have to register personally at the plant office.  Similar access restrictions have already forced the company to end its program of public tours of the factory, which is sad, although it does not say that much for the overall excitement level in Lodi if Nut Factory tours are fully booked to begin with.

The company has now decided to close up the gift shop too rather than incur the additional expense of complying with security regulations there.  You may still be able to order nuts online or by calling 1-800-WALNUTS, but the gift shop may soon be a thing of the past.  The security threat it posed will be eliminated, at least, but as this picture shows (click to enlarge it), there is still a little work to be done on securing the company's holiday boutique.

Link: Lodi News-Sentinel
Link: Lodi Nut Company
Link: Scott Horst (VP for LoTB Photoshop Operations)

Please Note: Even Elderly Marines Can Kick Your Ass

Luckily, I already had a great deal of respect for Marines, elderly or not, so I didn't need this lesson.  But it's too late for a mugger in Costa Rica who made the very poor decision to try to rob a tour bus full of elderly tourists on Wednesday.  The twelve tourists were on an outing from a Carnival cruise ship when their bus was held up by three men, at least one of whom had a gun.  This is from the Carnival Cruise Lines official statement:

According to witnesses . . . the group of guests were approached by three assailants, one of whom was armed.  The victims struggled with the armed perpetrator, and were able to disarm him.  During this process, the gunman's two accomplices fled the scene.  In the course of disarming and restraining the assailant, he died from apparent asphyxiation.

But according to reports today, the "apparent asphyxiation" resulted from the fact that a 70-year-old former Marine somehow got the jump on the 20-year-old mugger, who was the one with the gun, and killed him with his bare hands.  One report said that the man's neck was broken.  In another report it was the man's clavicle.  Either way, he's dead, and I bet his accomplices still haven't stopped running.

After the battle, the tourists tried to get the mugger medical attention, putting him on their bus and driving him to the local Red Cross, where he was declared dead.  The authorities questioned the tourists and then released them, saying that they had the right to defend themselves after being held up.  The ship left the port of Limon, only slightly delayed.  Carnival says that the group has opted to continue with their vacation plans, which are unlikely to be troubled again by muggers, would be my guess.

Link: AP via SFGate.com

Post-Traumatic-Internet-Addiction Claim is Back in the News

Not sure why this story is popping up again right now -- it may be that the report last December was of a threatened lawsuit, and now it's actually been filed, but you know what?  It doesn't matter.

Because James Pacenza is still claiming that he was wrongfully fired from his job at IBM for (allegedly) visiting an Internet adult chat room at work, on the grounds that he has an addiction caused by Vietnam-related-post-traumatic-stress disorder.  Pacenza says he was subjected to extreme stress while on patrol in 1969 (which may be true), and that his PTSD is relieved only by visiting Internet adult chat rooms (which is less likely to be true).  That is, Pacenza is arguing that he should not have been fired because IBM has a duty to accommodate this disability under the Americans With Disabilities Act.

According to the complaint, filed in federal court in New York, Pacenza alleges that his PTSD caused him to become, at some unspecified date, a sex addict, and "with the development of the Internet, an Internet addict."  (He has not yet added Al Gore as a defendant, but there is still time.)  Pacenza said in court papers, "I felt I needed the interactive engagement of chat talk to divert my attention from my thoughts of Vietnam and death."  IBM seems to think he was using it to divert his attention from the thoughts he was getting paid to think, or at least from the silicon wafers he was getting paid to measure.

Pacenza doesn't deny the chatting (which is wise, since another employee saw it when Pacenza forgot to log off), but he says workers who have other types of addictions are given treatment instead of being fired, an opportunity he was not given.  IBM has said it will be seeking summary judgment next month.

Link: AP via FindLaw.com

Lawyer Victorious After Two-Year Legal Battle Over $3.76

Adam Goodmann's shoplifting conviction was reversed by New Jersey's Appellate Division on February 2, bringing to an end a two-year legal battle that began with a dispute over a $3.76 charge for film developing.

Goodmann was charged with shoplifting in 2005 after he refused to pay Walgreens for a set of prints.  He pointed out that Walgreens had screwed up his order the first time anyway, and that he was entitled to double prints for $5.99.  The store insisted he could only get single prints for $9.75.  The stage was set for a titanic legal battle.

Goodmann refused to pay and said he was going to take his pictures anyway.  Assistant manager John Evans, defending his turf, said he would call the police and charge Goodmann with shoplifting if he did that.  Goodmann responded, "Do what you can," wrote his name, address, and "will settle this in court" on a piece of paper, and left.  The authorities were duly informed.  Goodmann was convicted in municipal court of shoplifting, fined $150 plus having to pay the $9.75, and also got 10 days of community service.  He appealed.

The Superior Court affirmed his sentence, but the Appellate Division (which is superior to the Superior Court) reversed, noting that the New Jersey shoplifting statute covers the taking of "merchandise."   The pictures weren't "merchandise," it said -- Goodmann took them and they belonged to him.  (Evidently there are a surprising number of cases about the legal status of developed pictures, usually when a professional photographer's pictures have been lost or ruined.  You'll be pleased to know that your amateur photos, according to this court, have no value.)  Walgreens might have a claim as the "bailee" of the pictures, but on these facts, Goodmann wasn't a shoplifter.

Prosecutors said they would not appeal any further.  They declined to estimate how much had been spent on attempts to uphold the criminal conviction in this important matter.

Link: MSNBC.com
Link: New Jersey v. Goodmann

Cross-Dressing Lawyer Held in Contempt, Quits Practicing Law, Then Changes Mind

Last year I reported on Dr. Rob Moodie's heroic struggle against the "male-dominated corruption" that allegedly dominates the New Zealand judicial system, a struggle he has carried out in part by dressing as a woman in court to show his distrust of the controlling male ethos.  "I will now, as a lawyer, be wearing women's clothing," he said then.  "The deeper the coverup, the prettier the frocks."  He also said that he would prefer to be called "Miss Alice" in court.

Here we see him turning heads at the High Court in Wellington last July.  Dr. Moodie was appearing then to answer contempt charges, not based on the dress code but rather on his unauthorized publication of confidential documents.  Dr. Moodie believes the documents prove his claim that the army, not his clients, was responsible for a mysterious 1994 bridge collapse that killed a beekeeper.

The coverup had apparently become much deeper by January 30 of this year, when Dr. Moodie again appeared at the High Court, this time in full Alice-in-Wonderland mode.  According the Boston Globe's report, by this time Dr. Moodie had officially changed his name to "Miss Alice," but the reports from New Zealand did not mention a legal name change.

Last week, the High Court found Dr. Moodie in contempt of court for circulating the documents.  It suspended him for three months and fined him $5000.  After the ruling was announced, Dr. Moodie declared that he would no longer practice law at all, nor would he continue to wear dresses, because he no longer needed to appear "in a 19th-century Alice-in-Wonderland environment that allows pomp, self-importance and deference to the court to eclipse the truth."

After talking that over with his wife, though, he changed his mind.  "Sue made it clear yesterday that she wants me to carry on," he said.  His clients, Keith and Margaret Berryman, said they were not concerned, either, and were still "very positive."  Their case will continue later this year after Dr. Moodie's three-month suspension is up.  He says he will continue to wear dresses, but probably not the Alice outfit.  "I am hoping I'm past Wonderland," he told reporters.  To be honest, I'm hoping he's not.

Link: Boston Globe
Link: New Zealand Dominion Post

Anna Nicole Smith's Will Released

Friday's development in the Anna Nicole Smith story was the release of a will that Smith apparently signed in July 2001, naming her son Daniel as the sole heir.  Daniel was scheduled to begin receiving distributions at age 21, but did not, due to being dead.  Daniel died, oddly enough, at age 20, just before he would have started getting money and just three days after similarly-named newer baby and potential heir Dannielynn was born.  And potential heir Dannielynn may have been fathered by Smith attorney and sex partner Howard K. Stern, who was named as the executor of Smith's estate in the 2001 will.  (Someone else drafted the will, at least, as you can see if you really want to read it.)

But the will may or may not exclude Dannielynn entirely, since it was never updated to include her and it states at one point that Smith was intentionally omitting to provide for any future spouses or children.  The will does instruct the executor of the estate to distribute to the children "sufficient sums for their health, education, and support," but that would not give any of the principal to the baby.  If the will is valid, and with Daniel dead, that may mean that Smith has no living heir at all, and that means the main beneficiary may be Court TV.

Also, I left out another contender in the baby-daddy contest: Alexander Denk, Smith's former bodyguard.  Denk told Larry King this week that he (Denk, not Larry King) could be the father.  I think that brings it to six, with two alternates, but I'm starting to lose count.

Link: CNN.com

PTO Refuses to Register "Obama Bin Laden" Trademark

Earlier this week, the U.S. Patent and Trademark Office informed Alexandre Batlle that it would not register the proposed trademark "OBAMA BIN LADEN," which of course conflates the names of presidential candidate "Barack Obama" and non-presidential-candidate "Osama bin Laden."  Batlle had hoped to use the trademark to market a variety of stuff.

The PTO also told Batlle that it was considering taking away his right to use his own last name if he doesn't take steps to fix the seriously jacked-up spelling he is currently using for it.

Three reasons were given for the refusal to register "OBAMA BIN LADEN."

First, the mark would be "scandalous" under 15 U.S.C. sec. 1052(a).  For this purpose, a mark is "scandalous" if it is, for example, "disgraceful," "offensive," "disreputable," or "calling out for condemnation," determined according to a "substantial composite of the general public . . . in the context of contemporary attitudes."  I'm sure we could come up with a lot of other things that should apply to, but for the purposes of trademarkery it was enough to point out that bin Laden is a terrorist and so his name is now "scandalous and is not registrable."

Second, the mark was found to "falsely associate" the proposed service with Barack Obama and Osama bin Laden.  Note that this was not a finding that they were falsely associated with each other.  The PTO was saying it was concerned that one or both of them might be falsely associated with the proposed service (e.g. selling T-shirts) because both are "so famous that consumers would presume a connection."  Not sure who would presume that bin Laden is in the T-shirt business, but I guess you never know.

Third, "the record does not include the written consent of Barack Obama and Osama bin Laden" to the use of their names.  "To overcome this refusal," the examiner wrote, "the applicant must therefore submit written consent from the two individuals."

Hey, Mr. bin Laden?  Hi, nice cave.  Look, sorry to bother you -- I was wondering if it would be okay for me to use your last name for this refrigerator magnet?  A refrigerator.  It keeps -- never mind.  It would be on shirts too.  See, your name is sort of like this other guy's, who is running for President, and -- yeah, I think it's hilarious too.  If you could just sign this form, then I could get a trademark.  Of course I'd be splitting the profits with you.  Okay, 60-40 for you.  I understand.   Okay, if you put it that way, 95-5.  Hey, thanks a lot.  If I could just get your address for the royalty checks --

Batlle says his cousin's wife is a trademark lawyer and that she may appeal the decision for her.  "I'm thinking about it.  I think I should get some credit for all of this," he said, "this" apparently referring to his outstanding cultural contribution to humanity.

Link: The Smoking Gun
Link: Miami Herald

Batman Eludes Phoenix Police

The Associated Press reported on Wednesday that three Phoenix-area schools were put "on lockdown" after a middle-school student reported seeing a person dressed as Batman run across the school grounds, jump over a fence and disappear into the desert.  The student described the allegedly caped crusader as being 6 feet 3 inches tall and possibly male.  "We're assuming it was male," said a police spokesman, "although they did have a mask on."  Authorities locked down the middle school and a nearby elementary school and high school while they searched for Batman, but though they "combed the desert" near the schools, Batman had vanished.

Here are some things we may or may not be able to learn from this story:

1. Phoenix police will do pretty much whatever middle-school students tell them to do;
2. Phoenix police are unclear as to the best way to determine whether a suspect is male or female, and are not so good with pronouns, either;
3. Phoenix has a procedure for putting elementary schools "on lockdown"; and
4. We are probably not controlling our borders all that well if we can't find somebody running through the desert in broad daylight dressed as Batman.

The spokesman tried to downplay the latter problem, however.  "It's just one of those interesting little stories that we looked into but we couldn't find anyone," he said.  Well, they did have a mask on.  But hey, don't admit failure yet.  Asked in December about a similarly interesting little story, combing the desert for Osama bin Laden, Homeland Security Adviser Fran Townsend flatly denied that we have "failed" to find him.  "I don't know that I view that as a failure," she told CNN.  "It's a success that hasn't occurred yet."

That's the spirit.

Link: AP via SFGate.com