Lowering the Bar

This Thing Named to ABA Journal's Top 100 List

The ABA Journal has released its fourth annual list of what it considers the "top legal blogs," and I'm pleased to say that Lowering the Bar is on the list. The blogs are chosen by the editors, who select 100 blogs in 12 different categories.

Lowering the Bar is in the "Fun" category.

You can vote for your favorite in each category at the Journal's website. There is apparently no large cash prize or honorary Darth Vader Partner Desk awarded as a result of winning this vote, but if such an award is added at the last minute I would certainly share it, or at least I am not above pretending to offer to do that in a subtle attempt to get votes. (I am talking about sharing the cash, not the desk. Get away from the desk.)

As always, there are lots of good blogs on this list, and also lots that are not on it, maybe because they have either won before (Legal Juice comes to mind) or have been overlooked at least by the ABA (Popehat comes to mind). I'm not familiar with all the blogs on the list, but here are a few recommendations if you are voting:  

• Court Watch: SCOTUSblog has won before, I think, but is too good not to recommend.
• Law Biz: I don't know these well, but will go with AdamsDrafting because they also hate legalese.
• News: Above the Law and the WSJ's Law Blog are great, but I am also a big fan of Legal Blog Watch, which frequently cracks me up.
• Law Prof Plus: many good ones here, but Tax Prof Blog is perennially good. This week he got in a reference to an attorney who sells "disposable body-gas neutralizers" on the side, and that's good enough to get my vote.
• Torts: NY Personal Injury Law Blog is excellent, and I have used FDA Law Blog and Jackson on Consumer Class Actions as resources. (I also work on class actions, though, so vote for him but hire me.) New blog Abnormal Use is also very good.
• IP Law: Me likee Patently-O, not that I know patent law but because I have researched goofy inventions there.
• Criminal Justice: for Simple Justice, see "has won before, is too good," supra. Also good: Defending People.
• IMHO (Opinion): Jonathan Turley, and I also honor The Legal Satyricon in part for its willingness to drop F-bombs when warranted. It's often warranted these days.
• Niche: fellow Forbes contributor Kashmir Hill, for privacy issues, and Taxgirl, for, um, tax issues.
• For Fun: since LTB is in this category, I will just say that I have now read all of the other six blogs listed and can certify that they are, in fact, fun, and also very well-written. God damn it!
• Legal Tech: Prof. Eric Goldman has more than one good blog, but here's the one they listed, on technology and marketing. If you use an iPhone, iPhone JD is awesome.

Thanks very much to those who nominated this blog, and to the ABA editors for choosing it. And a continuing thanks to all of you. Sometime later this week, Lowering the Bar will record its two millionth page view, which obviously would not be happening if it weren't for you pointing your eyeballs at this blog and using your retinas to collect the photons emitted from it. (By the way, no rush, but I do need to get those photons back sometime. They aren't free anymore, you know.)

Thanks for reading.

NYT: Supreme Court Using More Words, and Making Less Sense, Than Ever

Last week, the New York Times reported that the median length of U.S. Supreme Court majority opinions has more than doubled since 1953, and during the 2009 term that number reached an all-time high of 4,751 words. Adam Liptak wrote that "there is an emerging parallel critique as well, this one concerned with the quality of the court's judicial craftsmanship."

That seems to be a long way of saying "they write crappy opinions."

The criticism is not because the justices (or their clerks) are bad writers, Liptak says, but because the court supposedly "fails to provide clear guidance to lower courts" more often these days, "seemingly driven by a desire for unanimity that can lead to fuzzy, unwieldy rulings." I certainly agree that it often fails to provide clear guidance, but anybody who thinks this is a new phenomenon might want to go read some older cases with all deliberate speed.

I personally would cut the Roberts court some slack on that point, but the increasing number of words being used to say these things is also disturbing. As you can see from the Times graphic --

-- the median length of majority opinions has increased from less than 2,000 in 1953 to over 4,700 in 2009, although the number fluctuated around 4,000 for decades. There was a spike in the early 1970s, and it is tempting to blame that on Vietnam or global warming but it probably had more to do with the makeup of the court. Warren Burger became Chief Justice in 1969, and Justice Blackmun started in 1970. Others are more qualified to opine on whether one or both of those guys were exceptional blowhards, or what other factors might have contributed, but up the numbers went and they have hovered around 4,000 ever since. Until now.

And that's just the median length. The article notes that the Citizens United opinion in January (including dissents and concurrences) was over 48,000 words, or about the same length as "The Great Gatsby," which I also didn't read. That puts it ninth on the list, well below the chart-topping Buckley v. Valeo (76,639). But five of the top ten have been unleashed by the Roberts court.

The justices, of course, are not the only legal practitioners afflicted by an inability to cut to the chase. In 2007 I found it remarkable that one firm filed an appellate brief that was 239 pages long and contained 58,922 words. Obviously, that is 1.2 Gatsbys in length and over half the length of Huckleberry Finn. If we insist on burdening judges with that kind of thing, maybe it should not be surprising that they have to use more words to respond.

Sunshine No Longer Free, Says Sun's New Owner

Angeles Duran did not say how much she was going to charge people for using the Sun, but she did confirm that she owns it, that her claim is legally valid, and that she will be charging a fee.  Duran, a 49-year-old Spaniardess, said she had registered her claim with a local notary public and now owned the Sun free and clear.

The document reportedly declares that Duran is the owner of "the Sun, a star of spectral type G2, located in the center of the solar system, located at an average distance from Earth of about 149,600,000 kilometers." So if that's the same star you have been freeloading off all this time, get prepared to ante up.

Another reason not to look directly at this:
now you owe Angeles Duran money.

Duran said she got the idea of staking a claim to the Sun after reading about an American man (probably Dennis Hope) who had registered himself as the owner of various other nearby objects, including the Moon. Duran realized that he had, astonishingly, neglected to claim the Sun itself, and off she ran to her local notary public to seal the deal. She is now the proud owner of what is currently the most valuable stellar object in the universe.

If only you had been paying attention, this could have been you. "I did it," Duran said, "but anyone else could have done it. It simply occurred to me first." And don't think she didn't do her homework before dashing down to the notary public's office. Duran said she is aware that there is an international treaty that precludes ownership of extraterrestrial objects, but said the treaty applies only to countries, not to their individual citizens. "I backed my claim legally," she said. "I am not stupid, I know the law." 

She doesn't.

Not coincidentally, the "treaties-don't-apply-to-citizens" argument is also the one made by Hope about the problem of the 1967 Outer Space Treaty. At least according to a source quoted by National Geographic, namely the International Institute of Space Law, that treaty does indeed apply to private citizens as well as the countries they live in. This has not stopped Hope from selling plots of lunar real estate - or at least deeds saying you own a plot of lunar real estate - to millions of people (including this guy in China) over the past thirty years. But it does mean that neither he nor any of his customers actually own any of it.

On the other hand, said the IISL, it is not always necessary to actually own something in order to make money from it, as long as you have some legal right and the practical ability to do so. Both of those might pose some problems with respect to the Sun, however.

Duran did not seem to have actually nailed down how she would determine who was or was not using her star, or how much they used it, but she does know how she will split up the proceeds. Half will go to the Spanish government, she says, which at least has some experience with exploiting new worlds. Twenty percent would go to the national pension fund, 10 percent to ending world hunger, and 10 percent to "research." (That leaves ten percent for Angeles Duran, as you may have noticed.)

"It is time to start doing things the right way," said the woman who had just filed a claim to the Sun with her local notary public. Duran said she was acting in the time-honored tradition of the entrepreneur. "If there is an idea for how to generate income and improve the economy and people's well-being, why not do it?" Yes, but maybe brainstorm it a little bit first?

Sue Your Illusion

Not only do the former members of Guns N' Roses not get along, Axl Rose even hates the cartoon version of Slash that appears in Guitar Hero III.

Axl sued Activision this week, claiming that it had fraudulently induced him to authorize the use of "Welcome to the Jungle" in Guitar Hero III by promising him that the game would not include Slash or his band Velvet Revolver. It would probably take a team of rock lawyers to untangle the rights issues involved, and I'm certainly not going to try to do it here, but Axl at least claims to have the rights to "Welcome to the Jungle" and says he would never have authorized its use had he known "an animated depiction of Slash" or songs by Velvet Revolver would also appear in the game. 

According to the Wikipedia page devoted to Axl Rose's feuds and rivalries, Axl really has not gotten along too well with other rockers. (In other news, there is a Wikipedia page devoted to Axl Rose's feuds and rivalries.) He supposedly once called Scott Weiland (Stone Temple Pilots, Velvet Revolver) a "fraud," among other insults, which led Weiland to call Rose a "frightened little man who once thought he was king" and who had an "unoriginal, uncreative little mind." (Two years later, Weiland apparently could not really remember what that was all about, which I guess is not that surprising.) Rose has also said that he considers Slash "a cancer, better removed and avoided," so it appears there is still some work to be done in repairing that relationship.

Rose is demanding $20 million in damages he says he suffered due to Activision's alleged "web of lies and deception."

Dance Troupe Mistaken for Terrorists

On November 17th, the Lincoln Tunnel was closed for nearly an hour while police chased a group of people dressed in camouflage who were seen running through the tunnel. Officers of the FBI-NYPD Joint Terrorism Task Force as well as armed Port Authority police sped after the suspects, finally catching them as they neared the Manhattan end of the tunnel and forcing them to their knees at gunpoint.

Turned out the dramatic operation had protected New York from the onslaught of eight 16-year-old dancers who were trying to make it to a TV appearance.

The eight teens, part of a dance troupe known as "Ladies of Envy," were supposed to appear on a BET show but got worried they would miss the show when they got stuck in traffic. They decided to get out of their cars (leaving their adult chaperones behind) and run through the Lincoln Tunnel in a desperate effort to get there on time. Port Authority police sped after them and called in the Joint Terrorism Task Force, which led to the dramatic roundup of the terrified teenage dancers.

After they managed to explain the situation, the authorities offered them a ride to the studio but they didn't make it in time. It wasn't clear how long the incident delayed them, but the tunnel was closed for a full 45 minutes.

I guess if your anti-terror training program involves watching a couple episodes of "24," this was a textbook operation. But it seems fairly obvious that if a squad of terrorists did try to infiltrate Manhattan or any other urban area, they would not dress in camouflage to do it, and would not be sprinting.

It just struck me that I am writing about how these authorities vastly overreacted to an unlikely security threat at the same time that the TSA is insisting on the right to look in our underpants.

Quit Bothering Superman, Judge Tells LAPD

Superman has won yet another battle against evildoers, but this time he went to federal court instead of the Hall of Justice to get help.

This matter comes before the court on a Motion for Preliminary Injunction filed by the plaintiffs .... Plaintiffs are various individuals who adopt the personas of, and dress as comic book movie characters such as Wolverine, Batman, Superman, Catwoman, Iron Man, the Joker, and Transformer [sic], and perform on Hollywood Boulevard. Plaintiffs allege that the City of Los Angeles and individual officers of the [LAPD] have impermissibly arrested and threatened Plaintiffs with arrest while Plaintiffs were in costume on Hollywood Boulevard in violation of Plaintiffs’ First Amendment rights.

Superman was busted for loitering on July 8, a few days after Wolverine, Catwoman and two Batmans were arrested for allegedly "blocking the sidewalk" in violation of the municipal code. None of them were convicted of anything and it isn't clear whether they were even charged. (It also isn't clear whether Iron Man, the Joker or the unidentified "Transformer" also got in trouble, or if those were just some other comic book characters that the judge had heard of.) They sued, alleging that they have the right to "solicit donations" on public sidewalks, and that the LAPD was unconstitutionally targeting them. The judge agreed and granted the injunction.

He noted that, on the one hand, plaintiffs' activities could be classified as "performance art," long recognized as protected expressive activity. On the other, the government seems to have made little effort to justify its crackdown on the Super Friends.

[A]lthough costumed performance may not be a traditional form of speech, it is without doubt a protected one.... In sum, the court is persuaded that Defendants have not shown a compelling government interest in keeping costumed performers off Hollywood Boulevard.

This is certainly not the first time heroes have been hassled in Hollywood.  See, e.g., "Nobody Tells This Wookiee What to Do," Lowering the Bar (Feb. 6, 2007). On the other hand, they aren't always acting heroically, such as in May when Spider-Man was arrested for punching somebody. Of course, he does that a lot, but this may have been a tourist instead of a nemesis.

More Things "TSA" Might Stand For

It looks like my claim to "Trouser Search Administration" is safe, but as this video shows, there are so many other good alternatives I won't get too excited about that one in particular.

Given some of the increasing number of reports of horrendous conduct by TSA gropers, "Too Stupid for Arby's" might be unfair to Arby's.

New York, Florida, Whatever

The ad to the right appeared in a Law360 newsletter that was circulated today.

Phillips Lytle is a New York firm, and so possibly the intended message is that even if you are in, let's say, Florida, Phillips Lytle can help you with your New York state legal matters. But it does at least look like you should consider having someone else help you with your geographical matters.

The firm itself is perfectly well aware of what New York looks like, as this map on its website, which shows the firm's six New York locations, makes clear. According to the website, the firm was born in New York and has been operating there for 170 years, in fact.

Maybe the ad itself was outsourced?

In any event, the point is that no matter where you are, or think you are, Phillips Lytle can help you with your New York state legal matters.

 

"I'm the Next President," Says Guy Who Will Never Be President

Alvin Greene, formerly the Democratic nominee to be the next senator from South Carolina, predicted this week that he would be the next president of the United States. He seemed undeterred by either his loss in the general election or by the fact that when he made this prediction he was about to walk into a courtroom to enter a plea on obscenity charges.

Greene said on November 10 that he was "seriously considering" running in 2012, and a local Democratic Party official confirmed that someone had called to ask about the filing fee. A week later, Greene said at the Richland County Courthouse that he was indeed planning to run. If that counts as a formal announcement, he might be the first candidate to do this just before going into a plea hearing.

Greene was indicted earlier this year after a student at the University of South Carolina said he approached her in a dorm computer room, showed her some dirty pictures, and suggested they go to her room. (This is creepy but I think is especially shocking only because it didn't happen at a fraternity.) He was charged with violating a state law that makes it a felony to "knowingly disseminate obscenity," which might or might not be constitutional as applied but is virtually never enforced.

To put this in some context, the same chapter criminalizes "fornication," hilariously defined as "the living together and carnal intercourse with each other or habitual carnal intercourse without living together of a man and woman, both being unmarried." (Apparently if you don't live together, it's not fornication unless it gets to be a habit.) Further, woe betide those who would pursue, in the process of said Intercourse, ye abominable crime of Buggery:

Whoever shall commit the abominable crime of buggery, whether with mankind or with beast, shall, on conviction, be guilty of felony and shall be imprisoned in the Penitentary for five years or shall pay a fine of not less than five hundred dollars, or both, at the discretion of the court.

S.C. Code 16-15-120. And what better way to deter buggery than a prison sentence?

Anyway, to get back to Alvin, whether or not he should go to jail for this it does not look too good on a resume. But, again, he was not deterred, as he made entirely clear.  "I'm the next president," he told a reporter. "I'll be 35 ... just before November, so I was born to be president. I'm the man. I'm the man. I'm the man. Greene's the man. I'm the man. I'm the greatest person ever. I was born to be president. I'm the man, I'm the greatest individual ever."

The greatest person ever pleaded not guilty and asked for a jury trial, which a prosecutor said would take place early next year.

Plaintiff Claims Potential Landlord Tracked Her in Motorcade

From the San Francisco docket:

Jacqueline J_____ v. Milena Talian; Bobby Bogan; Mission Bay Housing Ptnrs LP; Fillmore
Marketplace LP; Related Mgt. Co. LP, No. CGC-10-505164 (San Francisco Super. Ct. filed Nov. 8, 2010)

Civil rights lawsuit. The plaintiff was tracked, followed and stalked by daily foot patrols with dogs and by a motorcade including trucks and motorcycles after she applied to rent an apartment.  In Pro Per.

I had to fill out a pretty long rental application a while back, but it looks like these tenant-background checks have really gotten out of control.