Drivers (preferably flame retardant) Wanted

Forum shopping is when someone attempts to get their case heard in a particular court. Every state and municipality has its own laws. Every potential jury pool has its own culture. Therefore, depending on the case, some forums may be better than others.

World-Wide Volkswagen Corp. v. Woodson (1980)

Facts
Mr. and Mrs. Robinson were New York residents who bought an Audi from a local dealer. While driving the car through Oklahoma they were involved in a wreck. The couple suffered serious injuries, which they alleged were due to the Audi’s faulty gas tank. The Robinsons filed suit against Volkswagen in Oklahoma, a state that happened to have very plaintiff-friendly juries. Volkswagen argued that Oklahoma did not have jurisdiction.

Question
Was minimum contact established?

Holding
No

Reasoning
One of the key issues with minimum contact is foreseeability. That the Audi might ultimately travel to Oklahoma from New York was reasonably foreseeable. But Audi had no service or sales centers in Oklahoma. Audi did not seek to serve the Oklahoma market by direct or indirect means. It was the plaintiff’s unilateral action that established minimum contact with Oklahoma. If the court defines forseeability in the way the Robinsons desire, forum shopping will quickly get out of hand.

And the winner is…
The Germans, series tied 1-1

Notes
- Is forum shopping ethical? On the one hand, attorneys should absolutely use the system to assist their clients. On the other hand, this feels like it’s violating the spirit of the law.

- Speaking of forum shopping, federal grand juries are noted for their relative objectivity and fairness. Since FGJs are drawn from a much larger pool, they should be more diverse.

– There is a theory that personal jurisdiction rules should be modified. Poor people are disadvantaged because they can’t afford to maintain long-distance lawsuits. Should poor people be allowed to sue locally regardless of minimum contacts?

Word o' the Week

sycophant

-A servile self-seeker who attempts to win favor by flattering influential people.


The Nard-Dog

Bad News for Dr. House

Professionals within a field are held to a higher standard of care than the average citizen. They are expected to exercise the prudence of a reasonable individual with like training.

Boyce v. Brown (1938) Arizona
A woman fractured her ankle in 1927. Her doctor repaired her by inserting a pin. In 1934 she returned to her doctor complaining of pain in the ankle. He basically did nothing. In 1936 she came back again, and again her doctor did nothing. This time, she sought a second opinion. Her new doctor ordered an x-ray and discovered dead tissue around the pin. He removed the dead tissue and her pain was gone.

The woman brought a lawsuit against her original doctor. She contended that he was negligent because he should have taken an x-ray in 1934.

Question
Was the doctor negligent?

Holding
No

Reasoning
This case was thrown out by the judge because the plaintiff failed to establish duty. The plaintiff called her new doctor to the stand, and he testified that he would have taken an x-ray back in 1934. However, his wording made his testimony meaningless. The court is not concerned with what a specific doctor would do, but with what a like professional of reasonable prudence would do. The doctor should have testified that an x-ray in this situation would be “standard practice”. I'm placing blame for that mistake on the plaintiff's attorney.

And the winner is...
...verbiage?

Notes
-The attorney pretty much blew this case. Can the poor woman sue her attorney for malpractice? Nope. Lawyers have leeway to argue cases as they see fit. The only way they get nailed for malpractice is by doing something really egregious. For example, declining an offer for settlement without presenting it to their client.

-Many professionals work under contracts, which is a separate area of the law. Let’s pretend an engineer does a poor job repairing the 480 bridge, and it collapses. If the engineer failed to carry out one of the duties of his contract, he can be sued for breach of contract. If he made a boneheaded decision that led to the collapse, he can be sued for a malpractice tort. He can also be sued for both.

-A statute of limitations is the amount of time that a party can be sued. If the lawsuit is not filed in time, it will be barred. The statute of limitations is two years on torts, and one year on contracts.

-Focusing testimony on generalities - such as the fictional professional of ordinary prudence - is much more comfortable for expert witnesses. It’s tough to convince professionals within a field to testify against one another. Nobody wants to be That Guy. Doctors are especially noted for their unwillingness to poop on each other.

summarized from Life of a Law Student

Good Laws Gone Bad

I hope you are enjoying the Commerce Clause, because we're still not done with it. Congress seems to try and use this clause to pass everything under the sun. You can almost imagine SCOTUS saying, "These are great laws, but this is none of the federal government's business. Let the states handle this themselves."

United States v. Lopez (1995)

Facts
The Gun-Free School Zones Act of 1990 banned possession of a gun within 1000 feet of a school. Congress passed this law under the Commerce Clause. They reasoned that guns affect education, and education affects commerce. Lopez, a high school senior in Texas, brought a gun to school.

Question
Can Congress use the Commerce Clause to regulate the carrying of guns in school?

Holding
No

Reasoning
Congress may regulate activities that have a substantial relationship to interstate commerce. This is not an interstate issue. This is not an economic issue. Education is the business of local and state governments. We don't want to federalize schools and everything within 1000 feet of them.

And the winner is...
Lopez

More Long-Arm Statutes

Every state has long-arm statutes, which define when the state can assert jurisdiction over non-residents. States with aggressive long-arm statutes can assert jurisdiction as soon as the non-resident makes minimum contact. This is a one-step process.

States with less aggressive long-arm statutes use a two-step process. The first step is to determine whether the non-resident established minimum contact. The second step involves determining if a certain minimum criteria is met. Let's look at a hypothetical example of this minimum criteria:

A resident files suit against an out-of-state insurance company for failure to pay a claim. The state throws out the case, because the claim is only for $100. The state's long-arm statutes specify that insurance claims must exceed $5000 before the state will seek to assert jurisdiction.

summarized from Life of a Law Student

Intro to Criminal Law

Today we'll begin delving into criminal law. This is just a quick overview of terms and ideas. We'll look at each of these items in depth over the next few months. I hope this series enhances your television viewing experience.

What is the Model Penal Code?
A set of rules and regulations detailing how men should care for their jumbly bits.

Just kidding.

A law is not a law unless it's written down. The problem is that verbiage becomes inconsistent as more and more laws are added. The Model Penal Code is self-contained and consistent within itself. Over thirty states, including Ohio, have adopted the Model Penal Code to some degree. Even non-MPC states are greatly influenced by this code.

What are some important terms that the MPC uses consistently?
1. purposefully/intentionally
2. knowingly
3. recklessly
4. negligently

What are the bedrocks of criminal law?
1. Defendants are presumed innocent until proven guilty. (Do you really believe this?)
2. Guilt must be proven beyond a reasonable doubt.
3. In most cases, 12 jurors must be unanimous.

Why is it "beyond a reasonable doubt" in criminal law, and just "a preponderance of evidence" in civil law?
In civil lawsuits, erroneous verdicts in favor of either side are equally bad. In criminal cases, it is much worse to convict an innocent person then to let a guilty person go free.

Why do we punish criminals?
1. deterrence
2. rehabilitation
3. to reaffirm societal norms
4. retribution
5. incapacitation

Are these reasons important?
Yes. Your typical district attorney has too many cases, and can't possibly prosecute them all. Part of the selection process is determined by the reasons listed above. Consequently, criminal defense lawyers will use said reasoning to try and prevent their cases from reaching trial.

summarized from Life of a Law Student

Ryan, before his hairpocalypse

Word o' the Week (for next week)

Blithe
1. happy and carefree
2. vivacious
3. adjective describing someone who would be called "jolly" if they hadn't lost so much weight

That last definition sounds like my buddy Sean Kufel. On the surface he seems like a really happy, nice guy who loves to laugh. Everyone who meets Sean instantly likes him.

But dig a little deeper, and you'll find an ocean of venom and rage. One minute he's loving life, the next minute his beard is spewing expletives. Thank God his diatribes are mostly reserved for things like stupid commercials, stupid songs, morons, stupid people, the Boston Bruins, and people who don't stay on their heels when they squat. His rantings are always funny, and often insightful. You can read them at Pajiba, where Sean shares scathing reviews with the resident bitchy people. He also maintains a blog over at Fat Kid and the Afternoon Snacks.

Enjoy.

Word o' the Week

Bifurcate-to divide into two parts

Some trials can be bifurcated in attempt to facilitate fairness. An example would be a personal injury lawsuit. The first trial would determine liability. If needed, the second trial would determine damages. The reasoning is that extent of injury should only influence damages, and should have no bearing on liability. Once the jury sees the results of the action in question (e.g. person in a wheelchair, deceased child, destroyed property) they will be fired up to make someone responsible.

New posting schedule
I'm experimenting with more of an assembly-line process. Instead of a post every few days, look for one big dump towards the end of next week.

Young, Dumb, and Full of Torts

Gather round kids, it's story time.

Growing up in rural North Carolina was sweet. I spent a lot of my childhood playing in the woods, which were expansive. One day when I was around ten, a friend and I found a junkyard hidden among the Pines. We quickly located a crowbar and started smashing car windows. For what seemed like hours, I had the time of my life. It was all sweat, violence, broken glass, cussing, blood, and loud noises. What more could a young boy want? We worked our way up to the front of the junkyard, and finally the adjoining used car lot. Thank God we were tuckered out by then. By the time we started destroying the cars that had "for sale" signs on them, I could barely swing the crowbar. No longer able to wreak havoc with our usual panache, we retired.

The next day, my idiot friend went back during business hours and got his ass caught. He proceeded to rat me out. My parents agreed to pony up $900 (in 1991!) for the previous day's destruction. I got a tanned ass and a long lesson on respecting property.

What were my parents legal obligations in this scenario? As we will see today, they could have refused to pay on the grounds that I was too young to know any better. They would probably be sued and the whole thing would end up in court. I'm not sure who would have won, but my point is that my parents had a legal leg to stand on.

I'm proud to say that Mom and Dad never considered refusing to pay for the windows. They felt responsible for making restitution, and impressing upon me the consequences of my actions. But not all parents are compelled by the same moral obligations. And some children engage in tortious conduct that isn't nearly as clear cut as my example.

Are parents liable?
In general, no. But, based on the actions of their children, parents can be sued for statutory torts. Legally, parents do have a duty to control their children to some degree.

Why would you sue a kid? They don't have any money.
Someone with dough will be named in the suit. For example, parents and/or homeowners insurance could end up paying. If not strictly liable, they are at least financially responsible.

Ohio and the Rule of Sevens
1. Children under 7 cannot be found liable under any circumstance. Their parents can still be liable for statutory torts.
2. The state assumes that children between the ages of 7-14 have no capability for negligence. However, prosecution can prove otherwise.
3. The state assumes that residents between the ages of 14-21 are capable of negligence. Again, defense can disprove this.

Robinson v. Lindsay (1979)

Facts
A thirteen year-old boy was driving a snowmobile. He was pulling an eleven-year old on an innertube. The younger child injured her thumb. Her parents filed suit against the thirteen year-old.

Question
Should a child operating a snowmobile be held to an adult standard of care?

Holding
Yes

Reasoning
Usually a child will be held to a child’s standard of care. However, children engaging in adult activites will be held to an adult standard of care. The court will decide what activities are "adult" in nature. Driving a snowmobile is an adult activity.

And the winner is...
The girl and her parents.

Notes
-The boy's father was sued as well. The plaintiff argued that giving a child the keys to a snowmobile was negligent entrustment. No details on how that played out, just thought it was a good example of parent liability.

-Bad news for all the underage drinkers. Obviously, they are committing a crime. But drinking alcohol-which is clearly an adult activity-also opens them up to civil charges.

summarized from Life of a Law Student

Don't Mess With Illinois

The minimum contacts standard helps us determine whether a state can assert jurisdiction over a non-resident. If a non-resident has not established minimum contact, they must be served in person within the state. In today's cases, we'll see the minimum contacts standard being expanded. As communication and transportation became more efficient, SCOTUS made it easier to sue out of state residents and companies.

McGee v. International Life Insurance Company (1957)

Facts
Mr. McGee was a resident of California. He held a policy with International Life Insurance Company, which was based in Texas. Mr. McGee was most likely their only policy holder in California. They had no agencies within the state, and this particular policy was executed entirely by mail.

When McGee died, the company refused to pay out on his policy. They contended that the policy was void because he committed suicide. McGee's wife sued in California court. Notice of the suit was sent by registered mail to International Life. They did not appear in court, and Ms. McGee won by default.

The state of Texas then refused to give full faith and credit to the judgment. The state felt that due process was not served.

Question
Did International Life Insurance Company establish minimum contact within the state of California?

Holding
Yes

Reasoning
The policy holder was a resident of California. The policy was delivered in California. The premiums were paid in California.

And the winner is...
Ms. Mcgee

Gray v. American Radiator

Facts
Illinois adopted long-arm statutes. Long-arm statutes mean that the state will aggressively try to assert jurisdiction on non-residents as often as possible.

Gray purchased a water heater in his home state of Illinois. The water heater exploded and Gray sued American Radiator. Also named in the suit was Titan Valve, who allegedly manufactured the defective part. Titan was an Ohio based company who sold the part to American Radiator in Pennsylvania. Titan never did business in Illinois.

Question
Do Illinois' long-arm statutes give them the right to assert jurisdiction over Titan?

Holding
Yes

Reasoning
The U.S. economy is made up of middlemen. Once Titan's products entered the stream of commerce, the company was responsible for them regardless of where they ended up.

And the winner is...
Gray

summarized from Life of a Law Student

A Recent Ohio Case

Roman v. Estate of Gobbo (2003)

Facts
While driving, Mr. Gobbo suffered a heart attack and died. His car then struck several people, resulting in both injuries and death. Ohio law held that sudden medical emergency was an absolute defense against liability. However, the Ohio Supreme Court retains the power of discretionary review. This case gave the court an opportunity to reassess the law.

The plaintiff put forth multiple arguments:
-This law is unfair to individuals with mental illness. They do not enjoy the same protections as people with physical illness.
-If the injuries were caused by sudden mechanical emergency, there would be no absolute defense against liability. Medical emergency should be treated no differently.
-When damages are severe, the injured deserve to be made whole. When no one is at fault, the party who caused the injury should be liable.

Questions
1. Should the court strike the medical emergency defense in order to balance the rights of individuals with physical and mental illness?
2. Should the court strike the medical emergency defense on the grounds that there is no similar defense for mechanical emergency?
3. If Gobbo was not at fault, should he still be held liable since he caused serious injury?

Holding
1. No
2. No
3. No

Reasoning
1. If anything, the court will expand the rights of people with mental illness before it strikes the sudden medical emergency defense.
2. Mechanical emergency is more likely to be foreseeable.
3. This issue must be applied on a case by case basis. In this case, the circumstances surrounding Gobbo's defense outweigh the court's responsibility to make restitution.

Notes
Every state has a similar law.

Summarized from Life of a Law Student

New Deal Breaks Through

By the mid 1930s some of the older Supreme Court Justices were stepping down. Naturally, President Roosevelt began packing the court with his own justices. This new court led to a new interpretation of the Commerce Clause, which grants Congress the power to regulate "interstate commerce". A broadening scope of Congressional authority led to an easier time for New Deal legislation.

The Former Supreme Court
Commerce is the buying and selling of goods. A business action has either interstate or intrastate effects. If the line is blurry, we'll deem it to be intrastate. We want to preserve state sovereignty whenever possible.

The New Supreme Court
Commerce includes the steps leading up to the actual buying and selling of goods. Congress can regulate things like labor agreements and manufacturing practices because they have an effect on commerce. If the line between interstate and intrastate effects is blurry, then obviously the action is interstate. Congress therefore has the power to regulate.

Briefs
The first two decisions overturn rulings from my last post. I'll list the relevant cases in parentheses. The final case puts forth a powerful new principle of aggregation that we will most likely be revisiting in the future.

NLRB v. Jones and Laughlin Steel Corp. (1937)
(A. L. A. Schecter Poultry Corp. v. United States)
(Carter v. Carter Coal)

Facts
The National Labor Relations Act provided all workers with the right to join a union. Jones and Laughlin Steel Corp. were sued for firing employees who wanted to unionize. The company argued that the NLRB had no authority over the firings, because they were neither interstate actions nor commerce.

Questions
1. Are unions linked to commerce strongly enough to grant federal authority?
2. Do the layoffs have interstate effects?

Holding
1. Yes
2. Yes

Reasoning
1. Labor agreements affect the production of goods, which indirectly affect commerce. This link is sufficient to grant Congress authority.
2. Seventy-five percent of Jones & Laughlin's business is interstate. Although the layoffs themselves are intrastate, they affect interstate commerce.

U.S. v. Darby (1941)
(Hammer v. Dagenhart)

Facts
The Fair Labor Standards Act of 1938 established regulations such as maximum hours and minimum wage for workers. Goods that were manufactured in violation of the FLSA could not cross state lines.

Question
Can Congress close channels of interstate transportation to combat intrastate violations?

Holding
Yes

Reasoning
Although the effects of barring intrastate transportation are indirect, they are an effective means to an end.

Wickard v. Filburn (1942)

Facts
The Agriculture Adjustment Act granted the Secretary of Agriculture power to regulate the industry. One regulation set standards for the maximum amount of wheat a farmer could legally grow. A farmer in Dayton, OH doubled his growing allotment. He did not sell any of the excess wheat. It was used to feed his family and animals.

Questions
Can the Commerce Clause apply to goods that never become part of commerce?

Holding
Yes

Reasoning
Filburn affected commerce because if he had not used his own wheat for home consumption, he would have been forced to buy wheat from someone else. Of course, his actions alone would have little effect on the wheat industry. But imagine the aggregate effect of all wheat farmers growing their own wheat. This would clearly have a significant effect on commerce.

Word o' the Week

sardonic
[sahr-don-ik]
-characterized by bitter or scornful derision

Professor Snape flashed Harry a sardonic grin.

Not so fast, Mr. President

Shortly after taking office, President Roosevelt and Congress teamed up and began passing "New Deal" legislation. Unfortunately, they met serious resistance in the form of judicial review by the Supreme Court. Today we'll look at a pre-New Deal case that sets the stage for a narrow interpretation of the Commerce Clause. We'll also see three cases from the New Deal era with similar decisions.

In the next post, we'll wrap up the New Deal with a more broad interpretation of the Commerce Clause. We will see this new interpretation opening the door for FDR's economic reform.

Hammer v. Dagenhart (1918)

Facts
Congress took the initiative in fighting the exploitation of children for labor. They passed laws making it illegal to ship cotton products manufactured by children across state lines. In other words, they went around their ass to get to their elbow. A North Carolina cotton mill broke the law, and the case reached the Supreme Court.

Question
Is it within the authority of Congress to prohibit such transportation of goods?

Holding
No

Reasoning
Congress has the authority to regulate interstate commerce in order to prevent harmful results. In the case of these cotton products, the harmful action has already occurred. It is true that if the federal government began seizing sweaters (or whatever), cotton mills would stop using child labor. However, this would be an indirect effect. Congress only has authority to make regulations with direct effects.

Railroad Retirement Board v. Alton Railroad Co. (1935)

Facts
Congress enacted compulsory retirement and pension plans for railroad workers. Their argument was that an aging railroad workforce is a threat to the safety and efficiency of rail transportation.

Questions
1. Are safety and efficiency of the railroad within the domain of the Commerce Clause?
2. On these grounds, may Congress mandate railroad companies to provide pension plans?

Holding
1. Yes
2. No

Reasoning
1. Railroad safety and efficiency have a direct effect on interstate commerce.
2. The aging railroad workforce has an indirect effect on safety and efficiency, and is therefore outside the scope of the Commerce clause.

A.L.A. Schecter Poultry Corp. v. United States (1935)

Facts
A Brooklyn, NY slaughterhouse was indicted for violating the "Live Poultry Code", which was a group of federal laws regulating the poultry industry. Defense argued that all violations of the code occurred within New York state, and were therefore not a federal issue. Congress pointed out that all of the chickens were shipped in from other states.

Question
Does the interstate shipping of the poultry give the federal government authority over Schecter?

Holding
No

Reasoning
All violations of the code occurred after the chickens came to rest in the state of New York. The state retains sovereignty over these acts.

Carter v. Carter Coal Co. (1936)

Facts
The Bituminous Coal Act provided coal workers with a collective bargaining agreement. This really upset stockholders. Mr. Carter was so upset that he sued his own company.

Question
Can the federal government force coal companies to honor a collective bargaining agreement?

Holding
No

Reasoning
The collective bargaining agreement is not commerce. It occurs before commerce, and has only an indirect effect on the buying and selling of coal products. This issue should be left up to the states.

*summarized from Life of a Law Student

New Deal intro

A recent cover of Time magazine really intrigued me. There is an interesting similarity between President Obama and President Roosevelt. They both entered the White House with the benefit and burden of a massive public demand for economic solutions.

FDR was able to quickly enact "New Deal" legislation to stimulate the economy. His Democratic party had significant Congressional majority, and his policies sailed through. Wikipedia says that during his first 100 days in office, Congress granted every request Roosevelt made.

There is much debate over the effectiveness of The New Deal. Many liberals contend that increasing spending and expanding government saved the country. Conservatives argue that FDR's actions only prolonged the Great Depression; even worse, this ideology smacked of socialism.

I'm not here to throw political poop, but we are going to talk about New Deal legislation over the next two posts. My guess is that we are going to see great examples of the balance of power in American government. For the 1930s Republican, FDR's political capital and the Democratic majority in Congress were a scary combination. SCOTUS was a last line of defense against overreaching liberal policy. More recently, President Bush enjoyed a Republican Congress for much of his presidency. Again, the Supreme Court's job was to keep the GOP from taking things too far.

The salient point of the "Obama is a 21st century FDR" analogy is the power to change. Obama is very popular, as evidenced by his 62% approval rating. Democrats have a nice majority in both the Senate and the House. Our President has inherited the second half of Bush's $750 billion T.A.R.P. bill, and his own $800 billion stimulus package is winding through Congress. In short, get ready for a lot of liberal policy to be enacted.

If you are a liberal, that sounds great. It sounds like "change we can believe in." If you are not a liberal, that taste in the back of your throat is probably your breakfast. On the bright side for non-liberals, there is always the Supreme Court. Seven of the nine justices were appointed by Republican presidents. As we will see tomorrow, you only need 5 men in funny robes to defeat the President, Senate, and House combined.

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It's a big day for Jay's Legal Boom. I used my first semicolon! I'm not going to lie, it felt good. Someone (Sean?) let me know if I nuked it.

Auggie the doggie

Some dogs are food-agressive, Amos is not.