Lowering the Bar

Airport Security Officials Successfully Disarm Toy Soldier

Is it better or worse to know that airport security in other countries can be as stupid as ours? I can't decide.

A Canadian couple that visited the Royal Signals Museum during a trip to the UK said that officials at Gatwick Airport disarmed the souvenir figurine (a soldier with a radio and rifle) they bought at the museum and made them mail the figurine's weapon home separately. The couple said officials became concerned after scanning the box and saw what they apparently thought was a tiny terrorist hiding inside. According to Ken Lloyd, the antenna of the figure's radio set "was individually scanned as suspect" and when the officer conducting the search saw the figure was carrying what she described as a "firearm," she contacted her supervisor.

Though non-functional, the mini-SA80 rifle could
be used by a terrorist to poke someone in the eye

Officials refused to let the Lloyds travel with the three-inch weapon, so Mrs. Lloyd brazenly carried it through the airport to a store where she was able to buy a padded envelope to mail the item back to Canada. Mr. Lloyd found it remarkable that his wife was able to move through the terminal at will despite openly carrying a firearm. "The numerous security people sitting around the concourse didn't leap to their feet as she passed," he noticed. The airport's customer-service department agreed to mail the item for them, after x-raying the envelope.

A museum spokesman quoted in the report said that the museum "takes security very seriously" but that this did seem "more than a little excessive." "It's probably just as well we didn't sell her a toy tank," he said.

Clown Suit

On or about August 9, 2008, [Clown] negligently jumped onto [Plaintiff's] chest causing him to fall to the ground and sustain substantial and permanent injuries to his back. Despite repeated requests by [Plaintiff] for [Clown] to get off his chest, [Clown] refused to do so and [Plaintiff] had to be taken to the emergency room by [clown car].

Well, actually by paramedics, but what fun is that?

The plaintiff is seeking at least $15,000 in allegedly clown-induced damages. See also "Clown Suit Threatened," Lowering the Bar (July 25, 2006).

Law School Websites: Girls Under Trees?

A new report that evaluated 200 law-school websites around the country, and found that the University of Illinois had the best, also noted that over 30 percent of the websites included pictures of students in close proximity to trees, a phenomenon apparently known and mocked in the web-design world as "Girls Under Trees."

Because studies suggest these kinds of images are "filler" that users tend to ignore, the authors subtracted points from sites that exhibited Girls Under Trees.

The report, conducted by Georgetown's Associate Law Librarian Roger Skalbeck and Yale Law School Librarian Jason Eiseman, evaluated websites on a range of criteria, generally selected to measure usability and usefulness of the information provided. Most important: "meaningful page titles," search forms, and basic facts like address and phone number that you would expect to find on any site, but which some actually omitted. (Several, including Cornell and Stanford, didn't provide either -- maybe there you have to be smart enough to find the campus on your own.) More technical issues like whether the site had an RSS feed or a "favicon" were worth fewer points.

"Girls Under Trees" is apparently a well-known phenomenon first mentioned in 2008 by a usability expert named Jared Spool. He was talking about higher-ed websites in general, but others have since pointed out that law schools are no exception to the rule. According to the authors of the report, studies have shown that readers' eyes tend to skip over these kinds of "beautiful campus" images anyway, so they add little while taking up space that could be used for information. Presumably, girls tend to predominate in such images, but the authors did not discriminate. "Points were deducted," they said, "for home pages displaying people (of any gender) under, near, or around trees."

As noted, Illinois came in first, followed by Wayne State, Michigan State, Nebraska, and Chicago. Special congratulations to Michigan State, which made the top five despite getting docked for Girls Under Trees. Bringing up the rear: California Western School of Law and Pontifical Catholic University of Puerto Rico Law School, which tied for 199th place. (To be fair, Pontifical Catholic may have a lousy website, but it has to be on any list of top party schools.)

The report appears in the 2011 edition of the Green Bag Almanac and Reader, where, coincidentally, the second annual Year of Lowering the Bar also appears, or will shortly appear. You should read them both.

Assorted Stupidity #12

• It's Dennis Kucinich vs. the Longworth House Office Building cafeteria, in a battle to determine who should pay for injuries allegedly suffered when Rep. Kucinich bit into a sandwich wrap and encountered an olive pit. Kucinich alleges that he sustained "serious and permanent dental and oral injuries" from the 2008 incident, although somebody has already dug up a C-SPAN video recorded five days later in which Kucinich appears to be able to give a speech without any trouble.


• Congratulations to Madina Salamova, the Russian whose book about her experience as an illegal immigrant in Norway led to her being named "Norwegian of the Year" by a news magazine there. The book was widely acclaimed, but unfortunately was also evidence that she was an illegal immigrant. Salamova was arrested last week and is likely to be deported.


• What's worse than a lawyer calling an accident victim in the hospital to try to drum up business? Doing it over one thousand times in a 90-day period. Slight mitigating factor: it wasn't the same patient every time.


• In the latest effort to remove all risk (and fun) from every aspect of American life, two states are considering laws that would limit the use of phones and iPods while walking. The Arkansas bill, for example, would prohibit the wearing of headphones "while on, parallel or adjacent to a street, road, intersection or highway." (Guys, I'm pretty sure that if I were "parallel" to a road or street, I would be lying down and so not especially dangerous to others. I'm probably resting, so leave me alone.) The law would generously allow pedestrians to listen with one ear, though. "You might not get the full effect of the Boston Symphony Orchestra with one ear," said an Arkansas legislator, "but you at least will be aware of your surroundings." Guess what? Now the Boston Symphony Orchestra hates you, too.


• Speaking of stupid people who lack awareness even with both ears free, the woman who walked into a fountain while texting also turns out to have a criminal record including six theft convictions and one hit-and-run. She is likely facing six months of house arrest, with electronic monitoring, on the most recent charges. That might keep her out of the local fountains, but hopefully there are plenty of things around the house for her to run into.

Filing Instructions Too Hard, Says Supreme Court Justice

On Monday, Clarence Thomas admitted that he had routinely failed to disclose information about his wife's employment, as he is required to do by federal law, but said the failure was inadvertent.

Thomas, who as you may recall is an Associate Justice of the U.S. Supreme Court, said he didn't understand the filing instructions for the form.

Thomas was reacting to criticism from (among others) the group Common Cause, which noticed the omission from forms required by the Ethics in Government Act. On Monday, he sent eight letters to the judicial branch's Committee on Financial Disclosure, each referring to a particular year or years and each stating only: "It has come to my attention that information regarding my spouse's employment . . . was inadvertently omitted due to a misunderstanding of the filing instructions. Please amend my report [accordingly.]" (Note the use of the passive voice: "Information . . . was inadvertently omitted" by who -- the maid?)

Here's the form for 2009, prior to the amendment. The misunderstanding came in part III.B, which asks for the sources of "Spouse's non-investment income." Thomas checked the box next to the word "NONE." If there are separate instructions for this form, I haven't been able to find them online. If not, these instructions really do not seem that complicated.

But maybe the laws underlying the form are complicated, and Justice Thomas was just overthinking things. Let's see.

• "Persons required to file" the disclosure form . . . nope, it includes "the Associate Justices of the Supreme Court." 5A U.S.C. §§ 101(f)(11), 109(10). He's one of those.


• Spouses . . . no, says each report must include "the source of items of earned income earned by a spouse from any person which exceed $1,000 . . . ." 5A U.S.C. § 102(e)(1)(A). Did Mrs. Thomas earn more than $1,000 in any particular year? Yes, almost $700,000 in the last six years. That's more than $1,000 (and also more than "none").


• Wait - maybe "income" only means amounts paid in the type of money used at the time the Constitution was adopted!  -- No, seems to mean all kinds of income.  5A U.S.C. § 109(7). 

Well, it still seems pretty straightforward to me. I'm not saying these laws are in plain English, but you know what? If you are going to be on the Supreme Court, you really can't claim to have trouble with the meaning of "none."

By the way, this is a nonpartisan criticism, as I will demonstrate by noting that I said the same kind of thing about Tim Geithner after he claimed he was confused by tax laws at a time when he was hoping to be confirmed as Secretary of the Treasury. See "Tax Returns Are Hard, Says Federal Reserve Bank President," Lowering the Bar (Jan. 21, 2009).

In a statement, a representative of Common Cause said he found Thomas's explanation "implausible."

Court: No Cause of Action for Gun-Safety Instructor Who Shot Himself

Hypothesis: One who announces while giving a gun-safety demonstration that he is "the only one in the room professional enough to carry this Glock 40" will shoot himself in the leg with that Glock 40 shortly thereafter.

Research Protocol: Examine cases in which a gun-safety instructor has made statements substantially similar to the foregoing and record the number of such cases in which a leg-shooting occurred.

Results: Research revealed one such case in which such a statement was made.  A self-inflicted leg-shooting occurred in that case almost immediately. Hypothesis proven.

I realize that normally you would set up a controlled experiment to test something like this; you might have, say, 200 gun-safety instructors and have half of them make the statement and half not make it, and then compare the percentage of leg-shootings in each group. But an experiment like that would probably be unethical, dangerous, and not likely to produce funny results. So existing data will have to do.

The case in question is the case of Lee Paige, the former NFL player and DEA agent who managed to shoot himself in the leg during a gun-safety presentation in Tampa in 2004. He sued -- not over the shooting per se, but rather because a video clip of the incident was leaked, widely broadcast, and resulted in him allegedly becoming the "target of jokes, derision, ridicule, and disparaging comments." (Well, not allegedly -- he was, including on at least one legal-humor website.) Paige argued that the leak was the DEA's fault and sued the agency on various theories including one asserting the federal Privacy Act. A judge dismissed Paige's case on December 29, 2010.

The video had been recorded by an audience member, who turned it over to the DEA during the investigation. In the video (which you can see, and should, at The Smoking Gun), Paige indeed made the statement above while displaying an unloaded Glock 40, which turned out to be a loaded Glock 40 as he then accidentally demonstrated about three seconds later. He does not seem to have been badly wounded, because he actually tried to go on with the demonstration, even having an assistant bring him another gun to use. We'll never know what would have happened next, because the audience wisely decided not to stick around to find out.

While there were likely a number of problems with the case, the judge granted summary judgment on the grounds that (even after many depositions) Paige could not prove how the video clip had gotten out, and even if he could have, the leaked information was not "private" because the incident took place in front of 50 parents and children (who at least did learn an excellent lesson in gun safety). Case dismissed.

This might provide some lessons for Fountain Lady, who showed up on Good Morning America the other day to complain about the leak of the video showing her walk into a mall fountain while texting. But if she wasn't smart enough to realize that going on TV was the one way to be sure people would recognize her as the lady in the video (and the fountain), she's not likely to learn anything from this.

Have a Safe Workout

From a report of new filings last week:

Chom P. v. YMCA of The East Bay, Case No. RG11-556438 (Alameda County Super. Ct. filed Jan. 18, 2011).

Premises liability action where the plaintiff fell while attempting to dismount a treadmill at the Oakland YMCA.

For future reference, please be aware that the mount and dismount are likely the two points of maximum risk when using a treadmill, except possibly for the part when the treadmill is actually moving.

"Radical Times Call for Radical Measures," Says Lawyer Who Dropped His Pants

I also need to give the ABA Journal credit for its headline, "Lawyer Says Dropping His Pants Was Educational Rather than Sexual."

The lawyer, who has pleaded not guilty to public indecency, reportedly exposed himself to two 19-year-old men at a cafe he founded, which the Akron Beacon-Journal described as a "Christian outreach center for troubled teens." (Pretty good mugshot at that link, too.) According to one of the young men, the lawyer talked to them about his own troubled childhood and other "sad, dark things." Eventually, he asked them whether they thought he could make them "think differently." When they asked what he meant, "[h]e stood up and pulled his pants down." That probably did make them think differently, but it also made them call 911.

The lawyer seems to have freely admitted the pants-dropping, and in fact said that doing so is part of a "mentoring program" he has developed for his work with at-risk youth. Yes, it may seem unusual, he said, but "[r]adical times call for radical measures. . . . We're not afraid to do what it takes." I guess not.

He did not explain just how this type of mentoring is helpful to the young people involved, but that may be part of what his attorney has advised him not to talk about. "There is more to the story that I would like to tell," he was quoted as saying, but "I've been advised not to." That was good advice, my friend, because let me tell you, you've already said way too much.

Still, he contended that all would be made clear once the facts came out. "There are two sides to the story," he said. "I would ask that no one rush to judgment before hearing the other side." Well, I think we've already heard it, but I'm more than willing to listen further.

Woman Who Fell Into Fountain While Texting Threatens to Sue

"Do not text and walk," pleaded the woman who went headfirst into a shopping-mall fountain this week after doing exactly that. She was on Good Morning America apparently trying to spare other texters the same terrible fate, not because she had been injured but because she was embarrassed after the video made it onto the Internet:

 

She is also, of course, threatening legal action:

 

There is not much I can say about her attempts to explain the fall itself -- it's better if you just listen to her try. She does say at the outset that she "had nothing to grab onto," which might be an attempt to blame the mall for not putting up a railing. But her real complaint is that mall employees, who you can hear laughing hysterically in the background of the surveillance video, put the video on YouTube and it has since gone viral. Rather than having a sense of humor about it, though, she lawyered up and went on GMA to blame everybody but herself. (Congratulations to her attorney, who does a remarkable job of keeping a straight face during the interview, which is more than George Stephanopolous could do.)

As someone who has walked into a lamppost while looking out at San Francisco Bay, smacking into it hard enough to break my sunglasses and start a small trickle of blood running from my temple, I can confirm that this is the sort of an event you very much hope nobody saw, let alone caught on video. But if it does happen, a lawsuit is not the right response. (I briefly considered suing the Bay for being an attractive nuisance, but I was still dazed at the time.) The right response is to assume someone is watching and immediately make fun of yourself in hopes that you may seem like less of a tool.

For example, if you were to, let's say, walk into a lamppost, you might want to pause (to show that you understand the gravity of what just happened), and then lay down in front of the lamppost with your arms and legs splayed out in some ridiculous manner (to show you know it was stupid). Then consider (1) reenacting the event several times at a slower speed, (2) staggering around like a zombie for a while, and/or (3) picking up a nearby two-by-four (if any) and beating the lamppost as if to punish it for attacking you. Certainly other options may be available.

But don't get a lawyer and go on Good Morning America. This is publicity you don't want, and can have a number of adverse effects, including showing that you are humorless and also making your identity (not apparent from the video) known to the whole world.

Should the lawsuit succeed, of course, I will be looking up the statute of limitations for lamppost assault and unintentional infliction of emotional distress.

Women's Suffrage: a "Costly and Dangerous Experiment"?

After I noted that a U.S. Supreme Court justice had said in an interview that the Equal Protection Clause of the Fourteenth Amendment doesn't apply to women (hint: it wasn't Ginsburg, Kagan or Sotomayor who said this), someone wrote me to ask why, if it was intended to apply to women, it took another amendment to guarantee women the right to vote.

For one thing, an amendment might be proposed even if existing law arguably did create or protect a particular right, just for the purpose of getting people to stop arguing about it. After all, that's basically the reason the Bill of Rights was proposed in the first place, over the objection of men like Hamilton who thought it was unnecessary and potentially too limiting. But it was passed, and since that day, as you know, there have been no arguments at all about any of the rights listed in it.

Another potential problem was that the Fifteenth Amendment had specifically prohibited denying the vote to any citizen "on account of race, color, or previous condition of servitude." That could be, and was, read to imply that denying the vote on account of sex was totally cool. That didn't preclude the states from allowing women to vote, and many of the states did. But many didn't, thus the need for another federal amendment -- according to some.

All of which is really a lead-in to this item, said to have been published in 1915, which shows that at least some women didn't want the right to vote, because, they said, they did not want the "burden of politics" thrust upon them by the enemies of civilization:

Clearly, women's suffrage was a diabolical plot by Feminists, Socialists, Organized Labor, and worst of all, the Mormons; it was bravely opposed, however, by the Men of New Jersey.

Turns out the "Women's Anti-Suffrage Association" was not made up entirely of men, as I had assumed. This book of "Anti-Suffrage Essays" contained comments by some female anti-suffragists -- they were gloating about the defeat of the bill mentioned in the flyer -- and included essays by both women mentioned in the flyer (and some who, scandalously, even used their own first names). One wrote that women are simply "not fitted for government either by nature" or experience, and in fact that "[i]n all departments where the law is to be applied and enforced, woman's nature forbids her entrance." That was not quite consistent with Mrs. John Balch's statement that the female membership of the Association was made up of "not only the very large group of homemakers," but also some women lawyers, who I guess had missed the memo about practicing law not being in their nature.

According to the Library of Congress, there were indeed women lawyers at the time. The first woman to be admitted to a state bar was Belle Mansfield, admitted in Iowa in 1869. The first African-American woman was admitted to the D.C. Bar in 1872 without objection, not because D.C. was enlightened but because she applied under the name "C.E. Ray" and the committee assumed she was a man. (The descendants of those people now work for the Department of Homeland Security.) And there were some in Massachusetts, although according to one of them (writing in 1890), not very many:

And this was so short a time ago, — for the woman lawyer in the abstract has not yet attained her majority, — that the novelty of her very existence has scarcely begun to wear off, and the newspapers publish and republish little floating items about women lawyers along with those [about] the latest sea-serpent . . . .

My sense is that things are somewhat better now for women lawyers, though obviously there is still a lot of room for improvement. Sea-serpents still get no respect at all, but that will have to be a fight for another day.