Lowering the Bar

Assorted Halloweenish Items

• SKELETONS: Police say they don't suspect foul play after the CREEPY discovery of human bones in the roots of a giant oak tree in Connecticut that was toppled by the recent storm. Even if they did, there wouldn't be much they could do because the CREEPY bones are believed to be 200-300 years old. (Or a little more, if you count the time they were inside someone.) The area was once used as a cemetery, including in the 18th century during a smallpox epidemic, so the current theory is that a couple of people took the opportunity to be buried there and wait 250 years to CREEP ME OUT on Halloween 2012. CREEPY pictures can be found at the links above.

• As you may have noticed, for some reason I find this ÜBER-CREEPY.

• SCARY COSTUMES: A truck driver in New Hampshire said he was "surprised" late Tuesday night when a naked clown hopped into his truck and asked if he wanted to have sex. The headline ("Naked clown accosts trucker at rest stop") is a little misleading because although the man does did work as a clown, he was not dressed as a clown (or as anything else) during the incident. A state trooper who responded to the trucker's call said that the clown threw "items" believed to be narcotics out of his car before pulling over, and that to his surprise several dozen clowns then poured out of the tiny car. (No, there was just the one.) The report also contains this sentence: "A search of [the clown's] vehicle resulted in the seizure of several sex toys, Halloween masks and head lamps."

• Of course I also find that CREEPY, but somehow less so than the skull in the tree. Aiiieeee!!

• CREEP (getting a beat-down): A person who should be terrified right now for more sensible reasons is the scammer behind isanybodydown.com (do NOT go there), who's currently being pummeled by Mark Randazza of The Legal Satyricon and Ken of Popehat. The scammer's site apparently posts (without consent) naked photos of people, and an attorney named "David Blade" has been offering to get the pics taken down for just $250 apiece. Unfortunately for the scammer, Mark and Ken noticed this and guess what? The site owner and attorney appear to be the very same person, which makes this extortion, and the "attorney" does not appear to be an attorney at all, which is also a felony. You should read the whole chain of posts at both sites. It's pretty glorious.

• OAKLAND: Always terrifying, but maybe slightly more so now that its police chief has admitted that he never got emails sent by city officials and a federal court monitor asking about allegations of police brutality, First Amendment violations and other illegal conduct during the "Occupy" protests, because they were caught in his spam filter. More specifically, he had set his spam filter to screen out emails with phrases like "occupy," "police brutality," "excessive force," and "press pass." He claimed this was because he was getting many anonymous messages, and that he "forgot" the filter might also keep out legitimate official ones on those topics.

• PLAINTIFF V. THE GREAT PUMPKIN: "Even though Plaintiff's view of the 170-pound pumpkin was obscured by her flower purchase, the giant pumpkin was an open and obvious danger. Based on the evidence presented, Defendant's motion for summary judgment is well-taken and is GRANTED." Daly v. Giant Eagle Co., 2004 WL 5506105 (Ohio Com. Pl. 2004).

Costa Concordia's Captain Sues for Wrongful Termination

I don't know much about employment law, but I do know this: If you're the captain of a cruise ship and this happens:

... you probably can't complain too much about getting fired.

Which has not stopped the ex-captain of the Costa Concordia, Francesco Schettino, from reportedly suing Costa Cruises for wrongful termination. As you may recall, there were a few questions about whether Schettino's conduct was entirely up to snuff on the night of the accident. First, there was the whole running-into-a-rock problem, of course, but he was also criticized for then fleeing the ship before all the passengers were evacuated.

"Get the %$&@ back on board!" a Coast Guard official told Schettino by radio, after realizing Schettino had taken his call from a lifeboat and seemed to have no intention at all of getting back on the ship. Schettino claimed he was "co-ordinating" rescue efforts from his lifeboat, and later told investigators that he had only been in the lifeboat by accident.

"I was trying to get people to get into the boats in an orderly fashion," he told the magistrates, when "suddenly, since the ship was at a 60 to 70 degree angle, I tripped and I ended up in one of the boats. That's how I found myself there." He must also have hit his head or suffered some other injury that rendered him unable to climb a ladder in order to get back aboard, although I don't see any mention of that here.

So far there don't seem to be many details available about why Schettino alleges he was wrongfully terminated, but I suppose it really doesn't matter.

(Photo: Filippo Monteforte/AFP/Getty Images)

"A Real Snor'easter": The Best Supreme Court Review You're Probably Not Reading

I don't know what John Elwood did to the people at SCOTUSblog to get himself sentenced to the task of reviewing the list of cases that the Supreme Court has either relisted or held, meaning it has not yet made a decision whether to grant review in those cases. His column, "Relist (and hold) watch," would ordinarily be about as interesting as its title, at least to people who aren't Supreme Court specialists. But this one is written by John Elwood:

As the rest of Washington’s elite huddled at home yesterday in front of cable news and Three’s Company reruns, the Justices took the bench as usual, issuing orders and pointed oral argument hypotheticals over the howling gales. Proving again that neither snow nor rain nor Frankenstorm will stay your correspondent from his (self-appointed) rounds, here is this week’s edition, now with gale-force bloviation. Brace yourself, readers: Today’s installment is a real snor’easter.

As you can see, John has a talent that has not been dampened by Sandy, and it also refuses to be completely buried even under the weight of unfortunately necessary sentences like this one:

The petition argues that the lower court’s decision conflicts with the “curtilage” rule from United States v. Dunn (1987) and implicates a circuit split with the Ninth Circuit about whether an absent co-tenant’s prior refusal to consent to a search invalidates the consent given by a physically present co-tenant under Georgia v. Randolph.

Did you make it past "curtilage"? If so, that alone probably qualifies you to pass the bar in California, but few could rise to that challenge. You should try, though, because there are gems in (almost) every paragraph.

John is a partner at Vinson & Elkins in D.C. who clerked for Justice Kennedy, and here's a revelation that will not surprise you: he specializes in appellate litigation. He also contributes to The Green Bag law journal, having written several pieces called "What Were They Thinking: the Supreme Court in Revue." Again, these should be dull but are laugh-out-loud funny: "Because of a small glitch in the administration of the oath of office," he wrote in 2008, "the Chief Justice inadvertently swore in Barack Hussein Obama as a third-class Webelo in lower Montgomery County's Den 307." And so on.

I met John (via email) back in 1999/2000 at a time when we were both contributing to the Green Bag; he then had to recuse himself for a while because he went to work for the Justice Department, serving in the Office of Legal Counsel from 2005 to 2009. (As you may recall, the OLC has written some real howlers over the years, but I know John wasn't responsible for those because they really weren't funny at all.) His absence enabled me to horn in on his "year in law" beat to some extent (e.g., this), so maybe I'm writing this partly for that reason. But mainly it's because of stuff like this:

We are done, and none too soon—my whale-oil lamp is guttering. If the kraken that appears to have swum up my street doesn’t do me in, we’ll be back next week for an update that is every bit as scintillating as this one.

See, in the legal profession, you often have to put up with "curtilage," but sometimes you get rewarded with "kraken." (So to speak.) It doesn't happen that often but it's worth noting when it does.

UPDATE: More on Your Freedom to Tebow

As I mentioned the other day, many media outlets have been reporting incorrectly that Tim Tebow had been granted a trademark on the act of "Tebowing," not just the term. To some extent this may have been a misunderstanding of an original Associated Press report in which the AP might have been joking (which goes to show that it's best if people can tell when you're joking and when you're not). In any event, it was wrong—he trademarked the word "Tebowing" and is not seeking to preclude others from actually Tebowing, should they choose to do so.

Meghan Lalonde provides some more detail in this post at Legal as She Is Spoke, which is a project of the Law and Journalism Program of New York Law School. "Kudos to Lowering the Bar for getting the law right" on this, she writes, and I hope that sufficiently shames other media outlets into doing their homework next time. I mean, I'm not an IP lawyer and I stay drunk most of the time, and even I was suspicious of the claim that somebody had trademarked a pose.

Lalonde points out that the Lanham Act defines trademarks as "words, phrases, logos and symbols" used in commerce, and so although an image of a man Tebowing would probably qualify if used to identify goods or services, a physical pose would not. Seems like there would be lots of other practical problems with enforcing a trademark like that anyway, such as if the alleged infringer just stopped doing it whenever you tried to get a picture as evidence. "I'm Tebowing … I'm not Tebowing. I'm Tebowing again! Now I'm not." Irritating.

On the other hand, she also says that according to Marty Schwimmer, who writes The Trademark Blog, a "trademark for a physical motion" is possible under the Madrid Agreement, which is something having to do with international registration of trademarks that I was planning to summarize for you but I suddenly got very sleepy while reading about it. Suffice to say, if you have a physical motion you'd like to trademark—and who doesn't—it might be possible to do that under this Madrid Thing. Please consult an expert before attempting to trademark any physical motion, especially one that is dangerous in any way.

In any event, there is currently no trademark (or patent, or copyright) on the act of Tebowing, so please continue to Tebow if you so desire.

 

UPDATE: Birthers' Record Is Worse Than I Thought

Last week I mentioned that the lawsuit (if you can call it that) filed against me, the President of the United States, and a number of other dignitaries by birther/dentist/lawyer Dr. Orly Taitz had been dismissed. I also mentioned having seen a chart purporting to list every court ruling in the many cases that have challenged Obama's claim to be a "natural born citizen," and based on that I suggested that Taitz's record in court on these cases was 0-158. I heard from the person who compiles that chart, who kindly gave me permission to link to it, and after reviewing it again I need to make a couple of corrections.

First, it may not be correct to ascribe all these losses to Orly Taitz. Certainly there are other people involved in filing these things, including Keith Judd, who I mentioned here in a slightly different context, although a context that also involved him being in prison, and also Philip Berg, who I mentioned here. None of these people have ever won a single victory in their "birther" lawsuits, nor has anyone else, and it's also entirely possible that Taitz is involved in some or all of these other cases behind the scenes. But to be strictly accurate, while Taitz is zero-and-something, it may not be zero-and-158.

Second, the overall record is significantly worse than I thought, according to the "Birther Scorecard."

This chart, which is currently 70 pages long and lists 175 cases, includes short summaries and also links to almost all the cited orders, where they are available online. It's an impressive piece of work, created by Tesibria at What's Your Evidence? According to the Scorecard (last updated October 18), of the 175 cases she thinks can be fairly classified as "birther" cases, birthers have lost 166 and the remaining nine are still pending.

If you add up all the individual rulings, including those in appellate courts and the U.S. Supreme Court, the birther's arguments have been rejected (or appeals denied) at least 258 times.

As a bonus for me personally, I think I've also gotten at least one new entry for the Comical Case Names page from this, because one of these people apparently insists on filing cases as "Annamarie Last Name Uncertain." Not "Annamarie Doe" or something like that—as this court noted, "In her pleadings, Plaintiff indicates that her first name is Annamarie and that her last name is uncertain." But the captions actually read Annamarie Last Name Uncertain vs. [Whoever]. Nicely done, Ms. LNU.

In general I support the rights of the uncertain, but nobody seems able to even figure out what this person wants.

Man Charged Again With Faking Disability to Get Diaper Changed

This is bad enough even without the word "again."

A plea deal is allegedly in the works for a New Hampshire man facing at least five counts of felony indecent exposure based on his practice of tricking home care workers into changing his diaper by pretending to have a brain injury. According to the report, the man was charged with five counts of this last year after a woman he solicited through Craigslist "grew suspicious of [his] behavior" and reported him. He was arrested again for the same conduct in September, apparently having been caught in a Craigslist "sting" operation.

Court documents refer to at least two victims of the diaper-fraud scheme, but police said "they received reports from several other women" during their investigation but could not pursue those because the statute of limitations had run.

The Union Leader reported last year that the man had originally pleaded not guilty, in a report headlined "Diaper man says he's clean."

 

Divided Court Rules 4-3 That Lap Dances Are Not "Artistic"

The ruling by New York's highest court means that the revenues derived from said dances are taxable, because they are not entitled to the exemption in state law for "dramatic or musical arts performances."

The majority appears to have compared lap dances to ice-dancing routines, which are not entitled to the exemption. The lower court's conclusion that if that's the case, then "women gyrating on a pole to music" are also not exempted, was not irrational, according to the majority. That seems to suggest a fundamental misunderstanding of the concept of a lap dance, although on second thought, maybe it doesn't.

The three dissenters said the majority hadn't focused on the actual words of the law, which uses the phrase "live dramatic, choreographic or musical performance." The term "choreographic performance" means dance, the judge wrote, and certainly these women are dancing. Therefore, the exemption should apply.

Because there are First Amendment issues involved, and because of the close decision, it's entirely possible that a petition for certiorari may be filed with the U.S. Supreme Court. Sadly, the odds that the Court will accept it are low, but I'm keeping my fingers crossed.

Tebow Trademarks "Tebowing"?

Photo: AP

Various reports, like this one at the Washington Times, have said that Jets quarterback Tim Tebow has trademarked the act of "Tebowing," but I don't think that's true.

He has certainly trademarked the word "Tebowing" for use in a variety of contexts (or at least has filed for that trademark) as well as his own name, but in a search of the U.S. Patent & Trademark Office database I couldn't find any reference to an application or trademark for the act or even an image of someone Tebowing. (This post at Techdirt also states that the trademark is only for the word.) 

I'm not sure it would even be possible to trademark a pose, although I can't think of a specific reason why off the top of my head. Maybe because it is not sufficiently unique, because other human beings have assumed this pose a number of times over the past two million years, or at least that's my guess. It might be possible to trademark an image of the act for use in commerce, though, but even if it is I didn't see any record of that in my (strictly amateur) search of the PTO files.

Tebow says he has no plans to make money from the trademark in any event, and is only hoping to "[m]ake sure it's used in the right way," if at all. Searching for "TEBOW" at the PTO yields this:

—and those are not all linked to him, so there is certainly reason to believe that others might try to misuse Tim Tebow's name and/or the Tebowing word and/or pose.

In particular, whoever applied for a trademark in the phrase "WINNING IS INEVITEBOW" should be ashamed of himself. Some penance seems in order for that one.

UPDATE: Hemingway's Six-Toed Cats Remain

As I mentioned in July 2007 (and again that November), a legal dispute was then raging as to whether the descendants of Ernest Hemingway's six-toed cat Snowball could stay on the grounds of the Hemingway Home and Museum in Key West.

Snowball's heirs have been rambling polydactically polydactylically polydactishly in six-toed fashion over the grounds of the estate for decades, but in 2002 the U.S. Department of Agriculture started insisting that they be caged at night, that the museum foundation needed a permit to keep them, and other ridiculous things. It threatened to fine the foundation $200 per day per cat (there are about 50) unless it complied.  CBS News reported in 2007 that in the course of the (then) five-year dispute, various USDA personnel had made at least 14 trips (some undercover) to the Hemingway Home to investigate the cat allegations.

The fact that it's located in Key West probably had nothing to do with said trips.

It turns out that the case finally settled in September of 2008, after an independent investigation found the cats appeared to be "well-cared for, healthy and content," although he did suggest a fence be put up to keep them on the property and away from a nearby road. The fence was installed, the permit obtained, and the USDA dropped its complaints. The foundation estimated that the six-year cat battle had cost it $250,000 in legal fees, and "continues to question the need for the permit." In any event, the cats remain.

Not only do they remain, they are now sponsored by Pfizer.

NOTE TO SELF: Rob Only Banks Where They Don't Know You by Name

Normally I group short items like this one for posts in the "Assorted Stupidity" series, but I'm gonna do a series of them independently today as an experiment. For one thing, this would allow me to alert you to certain stupidity faster, when appropriate. And some of this information you may need right away.

Like this tip: There are lots of banks out there, so when choosing one to rob you should consider not choosing one that you use so often the tellers know you by name.

"Do you want to make a deposit, Kerri?" said one teller.

Kerri did not want to make a deposit.

Police arrested Kerri over the weekend, and seized cash, a cell phone, clothing and a number of "items covered in red dye."