Lowering the Bar

Final Post of 2009

I am busier than I expected today, mostly because I was apparently the only one stupid enough to actually come into the office on December 31.  But I did want to post one final post of the year, although, as you know, time divisions like "years" and "months" and "tenths of an hour" are wholly arbitrary and so any dividing line or other distinction between them is equally arbitrary.  (Feel free to give me the Nobel Prize for that.  They seem to be easier to get now than they used to be.)  Having said that, I am arbitrarily picking today to treat as the last "day" of the current "year," and if anyone else happens to do the same thing I'm going to drunkenly insist that it is entirely coincidental.

I am not yet doing a "top ten" list, although everybody else seems to have done that already, because even assuming that it made sense to treat 365 1/4 "days" in a row as some sort of unit, it makes no sense to pick the top ten events of that unit until the unit is actually complete.  I mean, what if you publish your list and then ten really great (or, more likely, really stupid or weird) events happen during the last few arbitrary time periods of the unit?  Then what?  Huh?  Then what?!

So I am doing mine next week.

This is consistent (I just checked) with my practice from last year, when I did manage to get the 2008 Lowering the Bar Awards released on January 2, 2009.  Hopefully the 2009 edition will be out next week.  Also, you will be able to see a more complete list of lowlights of the past 12 months by simply turning your eyeballs toward an upcoming issue of The Green Bag law review and letting your retinas collect the light reflected from my article, "A Year of Lowering the Bar," which the Bag will be publishing in what you call "2010."  (Because of the lead time required by the publishers, that year actually runs from October 31, 2008, to November 1, 2009, which I think supports what Einstein and I have been saying about time all along.)

 
"Mr. Underhill actually does not understand my work very
well," said Einstein, "but then I was a f#@%ing genius."  

This is also a perfectly good (if completely arbitrary) time to thank you for reading this blog.  By the time most of you have been bailed out of jail tomorrow morning, the pageview counter for the last 12 months should have hit 920,000.  (It still might hit one million if you crystal-meth users would step it up a bit.  Staying in and reading would be a lot safer than going out there where the spiders are.  Just a suggestion.)  That is about twice what it was last year, and those pages don't view themselves, so thank you very much.  I hope you have enjoyed it.  Also, thanks to those who sent in stories or documents.  You generally (and wisely) wish to remain nameless, but you know who you are.

Finally, I'll leave the warnings about drinking and driving tonight to others who you are more likely to take seriously, but you should also remember that, as frequent readers may recall, that the definition of "vehicle" for DUI purposes has been interpreted very broadly to include, for example, horses, riding mowers, Zamboni machines, motorized beer coolers, and maybe most conspicuously, 40-mph bar stools.  If you must drink and drive, let it be on a Zamboni (top speed 3 mph), I guess, but unless you have one of those handy, don't.

Thanks again and Happy New Year.

Mug Shots of the Year

The Smoking Gun, the nation's top source of remarkable mug shots (among other things), has posted its selections for the top 20 of 2009.

 

 

As you can see, that one is only #10.

Link: The Smoking Gun

Woman Claims She Was Struck by Falling Moose Head

New York resident Raina Kumra has sued the White Slab Palace restaurant in Manhattan, alleging that she was hit by a 150-pound moose head that fell off the wall above her during a party.  The moose head, which sports antlers over three feet across, seems to have been part of the restaurant's Scandinavian-themed design.  (This enabled the New York Post to say that Kumra claims she was "struck by the restaurant's decor.")

"I'm actually a caribou," the beast would have said,
had it been able to speak English and not been decapitated

Kumra's lawsuit, filed in Manhattan Supreme Court last week, alleges that the restaurant "had a duty to provide an environment free from falling objects," and that it violated that duty by being "grossly careless" in mounting the moose.  This allegedly led to the moose coming loose about 1 a.m. on October 4, falling, and striking Kumra on the head.  She alleges that since the moose-head strike she has "lost cognitive skills and suffered chronic neck pain, fatigue, dizzy spells and anxiety from mounting medical expenses," according to the New York Daily News.  She seeks unspecified damages.

Interestingly (or not), Kumra's Twitter feed did go silent for about two weeks after the date of the alleged strike, which may tend to support her claims about the accident.  On the other hand, the tweet immediately prior to that date reads, "Tom igoes pecha kucha on itp projects at the itp reunion was so true!" which may tend to undermine her claims about lost cognitive skills.

Yelp reviews for White Slab Palace do not mention any dangerous conditions and/or the moose, although one reviewer described the bar stools as "slightly treacherous" and another was spooked by a "big ass stuffed bear" that "looked at me funny."

By the way, the phrase "big ass stuffed bear" is one that needs a hyphen, and one of the few in which it really does matter where you put that hyphen.

Link: Gothamist
Link: New York Daily News

Cat's Relentless String Harassment Prompts Emergency Call

Given that Americans called 911 this year for emergencies that included missing shrimp, McNugget shortages, and (most recently) an unstoppable Playstation 3, it is somewhat reassuring to know that people in other countries are also defective.

It may be that, like so many other things, we got this from the British.  The BBC recently reported that a woman in Manchester called the emergency "999" service there to report that her cat had been playing with string for two solid hours, and it was "doing her head in."  I don't know this dialect very well, but I think that means the cat was bugging her and after two hours she just could not take it anymore.  I have tried to transcribe the brief clip, but it is worth listening to because with the accent it sounds to me like part of a Monty Python sketch:

 -- Unofficial Transcript --

DISPATCHER: Manchester police, how can I help?

CALLER: Hiya, love.  Um, this is an emergency, it's been goin' on for two hours now.  And it's doin' me 'ead in --

DISPATCHER: What's happening there?

CALLER: Me cat's been playin' with string.

The police released the clip to the media at part of what is apparently an annual (and probably futile) effort to remind people not to use the emergency line for stupid things, especially during the holidays.  The report referred to one other call, in which a man called 999 to say he was stuck on a patch of ice on the street and was too scared to go either forward or backward.  (I guess he was calling to see if he could get a push.)

Police in Manchester said they got almost 1,400 calls in the few days surrounding Christmas, of which only "a fraction" were genuine emergencies.

Link: BBC News

Re: The Underpants Bomber

I was planning to write something like this Christopher Hitchens piece in Slate, and probably would have if anybody involved with my flight home yesterday had refused to let me go to the lavatory, to get up for any reason during the last hour of the flight, to have a book or anything else on my lap during the flight, or any of the other nonsense that we were hearing about over the weekend.  But that didn't happen (at least to me), and he has done a good job of expressing what I was thinking anyway: every time we fail to catch a bad guy, we then punish all the good guys for what he just did, while the next bad guy is coming up with something new to try that we will later be punished for, too.  Most comically of all, we have to pay billions to fund the cost of our own unnecessary punishment!  Ha!

Maybe this is a little harsh.  True, we failed to notice the Underpants Bomber even though he was already on a watch list because his own father had reported him to us as a threat, but we did raise the alarm the next day when somebody on another Delta flight ominously also went to the bathroom.  (He had the stomach flu . . . or did he?  Well, yes he did.)  Oh, also, Ivana Trump got kicked off a plane on Sunday after becoming "belligerent," so maybe the system is working.

Link: Christopher Hitchens, "Flying High," Slate (Dec. 28, 2009).
Link: Xeni Jardin, "Fruit of the Boom," Boing Boing (Dec. 29, 2009) (title of the year?)

Stalin's Grandson Files Another Libel Case

Despite losing a similar case earlier this year against a different newspaper, Yevgeny Dzhugashvili has sued a second Russian media outlet for allegedly defaming his grandfather, Josef Vissionariovich Dzhugasvili, better known to some as Stalin.

Everyone Stalin didn't kill marches in appreciation

The plaintiff previously sued Novaya Gazeta for daring to suggest that Grampa Stalin had been responsible for some deaths while he was dictator of the Soviet Union, but that case was dismissed in October.  In the new case, he is seeking ten million rubles and an apology from a Moscow radio station that aired a program critical of Stalin for allegedly authorizing the execution of teenagers.

The exact number of executions that took place during Stalin's regime is still disputed to some extent, but experts generally agree that, at a minimum, it was a lot.

Link: Reuters

No Christmas Pudding Without a Waiver, Restaurant Says

In olden times, finding a coin in a Christmas pudding was apparently a sign of good luck, but now it is more of a liability concern.

Diners at the High Timber restaurant in central London who ordered the traditional Christmas pudding on Christmas Day got a Christmas waiver form that they were asked to sign before eating the pudding.  Neleen Strauss, the restaurant's owner, said the waiver had been suggested by some of her customers, many of whom are lawyers.  "I thought it was going to be a pain," she said, "but decided to do it to cover my backside."

It does seem a bit odd to deliberately hide a foreign object in something you know people are going to eat, but since this tradition has apparently been around for about five hundred years, by now maybe anybody eating a Christmas pudding should be considered to have assumed the risk of wolfing down a lucky (or unlucky) coin.

Link: msnbc.com

Vatican Declares Papal Copyright

Because of what it referred to as a "great increase of affection and esteem for the person of the Holy Father" in recent years (I assume that's a rhetorical flourish, because I don't recall the public really dumping on John Paul II), the Vatican has declared what appears to be a Holy Copyright in said Father's name, image and symbols.  In a recent statement, the Holy See declared that

it alone has the right to ensure the respect due to the Successors of Peter, and therefore to protect the figure and personal identity of the Pope from the unauthorized use of his name and/or the papal coat of arms for ends and activities which have little or nothing to do with the Catholic Church . . . . Consequently, the use of anything referring directly to the person or office of the Supreme Pontiff . . . and/or the use of the title "Pontifical," must receive previous and express authorization from the Holy See.

I guess this poses yet another dilemma for American Catholics, who would be allowed under U.S. law to engage in certain "fair use" of the Holy Father's name or image and so forth, but who presumably will now have to get prior express permission for this from the Vatican's legal department.

By the way, if you happen to be traveling for the holidays, don't forget that snow globes containing an image of the Holy Father (or anything else, for that matter) are not permitted through TSA checkpoints.  You are not allowed to have one now anyway, of course, at least not without express permission, but if you choose to flout the will of the Lawyers of the Successors of Peter, leave your pope globe at home.

Link: Catholic News Agency
Link: Boing Boing (also source of the photo)

911 Caller Declares Parenting Emergency

Police in Roxbury, Massachusetts, said that an exasperated mother called 911 on Saturday, saying she could not get her 14-year-old son to stop playing "Grand Theft Auto" and go to sleep.  Angela Mejia said she woke up at 2:30 a.m., hours after telling the boy to go to bed, and saw the light on in his bedroom.  Sure enough, he was in there communing with Satan by playing the video game against her wishes.  Apparently believing she had no other options, Mejia called police, who were able to talk the boy down and tuck him into bed.

Mejia appeared to blame the makers of "Grand Theft Auto" for her inability to control her son.  "I would never buy that kind of video [game]," she told the Boston Herald.  "No way.  I called [911] because if you don't respect your mother, what are you going to do in your life? . . . I want to help my son, but I can't find a way."

Well, here's one way - don't let him have a Playstation in his room.  Here's another - if he does have one, unplug it and physically take it out of the room.  Or, if what you don't like is "Grand Theft Auto," push the button (it looks like an arrow) on the top of the machine.  A flat silver thing will come out that you should then take to your priest for the appropriate ceremony.  That's three ways right there, each of which should be tried by you before calling 911.  Seriously, I have more sympathy for the lady who called 911 when McDonald's ran out of McNuggets than I do for this one, but that might be because I like McNuggets and am not a huge fan of "Grand Theft Auto."  (Have him try "Borderlands" and he will forget all about GTA.  A possible fourth strategy, and also a solid endorsement of my possible parenting skills.)

Surprisingly, Lawrence Kutner, the author of a book called "Grand Theft Childhood," did have sympathy for Mejia (who, to be somewhat fair, is a single mother dealing with four kids).  "Clearly, it's a very, very rare situation for someone to call the cops," he said, suggesting he does not know about the McNugget lady, among others.  He admitted her call was an "extreme" reaction but claimed to understand her frustration with game addiction.  Much more surprisingly, a police spokesman also downplayed the use of 911 for child-control purposes.  Officer Joe Zanoli said the call over video-game obsession "was a little unusual, but by no means is it surprising -- especially in today's day and age when these kids play video games and computer games."

My (unscientific) review of the comments to this story on the Boston Herald's website suggests that a rather large majority of people do find it surprising and even irresponsible.  But not everyone does.  One commenter wrote, "child services must be called and intervene since the mother allowed an ultra violent video game into her state funded apartment."  My question is, where are the hyphens in that household?  If children are being exposed to that kind of grammar abuse, I'm calling child services myself.

Link: Boston Herald

One Possible Class-Action Defense Strategy: Disappear and Live in a Tent

In class-action cases we generally recommend removing to federal court if possible, moving to dismiss, and then swiftly taking class representatives' depositions if the motion is not successful.  There are other strategies, however.  Here's one that we could not officially recommend, but which has been at least temporarily successful.

Let's say, just speaking hypothetically, that you are a doctor who has been accused of performing dozens of unnecessary operations to get the insurance money.  This may have troubled you as you were conveyed to and from surgery each day in your chauffeur-driven limousine, but if so, since you were earning possibly $200,000 a week you are able to unwind by taking ten days off every month to (for example) cruise the Aegean in your 79-foot yacht.  On one of those trips, coincidentally scheduled after two class actions have been filed against you and you have been indicted for insurance fraud, you then, let's say, vanish overboard, abandon your family, make your way to the Alps and live in a tent at 6,000 feet for several years.  In some circumstances, this might be something you want to consider.

One of a Number of Options

Again, we would go with the motion to dismiss.  That is especially true if you feel you may not be able to stay vanished, for example because (again speaking hypothetically) you have a tendency to make friends with mountain guides who know people in the local Carabinieri police unit.  You might think that a mountain guide, of all people, would be able to keep a secret, but you are likely to be wrong.

Link: The Guardian