Thumbs UP - World War Z
Best book I've read in a long time.
Thumbs DOWN - Jake Delhomme
Excuse me, I have to go stick my face in a pot of boiling water.
Thumbs UP - La Crema Chardonnay, 2007
Usually I can't drink chard because it's like being hit over the head with a bottle of perfume. This one was awesome. Thanks Lauren
Thumbs DOWN - Me
A real man can get a fire going. Apparently I'm not a real man.
Thumbs UP - Top Chef, double-elimination
The right people went home. I liked Eugene but he was more overwhelmed than Michael Cera in the seduction scene from Superbad.
Thumbs UP - Wal-Mart
Knee high rubber boots, snow shovel, and 2 ice scrapers for under $40.
Thumbs DOWN - The Karate Kid
Can't believe I'm saying this, but it's not aging well.
Thumbs UP - Marley & Me
I realize I'm not splitting the atom here, but your enjoyment of this movie will be directly proportional to how much you like dogs.
Thumbs UP - This Anagram Generator
You can use it to figure out your superhero name. Jason C Hudson makes me Chanson Judo. Emily becomes Dunes Homily. We live in Elk Sweat. I could do this all day.
Sunday, January 11, 2009
Don't tort and drive
Let me give you some free legal advice. If you need to avoid a speeding ticket, employ the Killer Bees defense from Tommy Boy. As Cordas v. Peerless will show, this ridiculous little stunt actually has some legal precedent. Specifically, the normal standard of care does not apply in the event of an emergency.
I'm kidding. Please do not go Killer Bees on a police officer. If you really must avoid a ticket, try my Safari Defense. That's where you pretend you are on safari and the police are hungry lions. Shut off your engine, roll up the windows, lock the doors, and DON'T MAKE EYE CONTACT! Eventually, the cop will get bored and just wander away.
A few quick items before we look at Cordas v. Peerless Transportation Co.
Consortium
We've already established that when a person is injured, they can sue for damages under tort law. It turns out that their partners (spouse, relatives, business partners, etc) may also seek to recover damages under the idea of consortium. For example, let's pretend I'm a victim of libel and as a result lose my job. Among other things, I can sue for lost wages. My wife can sue in consortium because I've been an awful husband ever since I got laid off (verbally abusive, lazy, whatever). The more injuries we have, the more money we get.
Vicarious Liability
As opposed to direct liability, vicarious liability is "the responsibility of the superior for the acts of the subordinate."
Facts
A cab driver was held at gunpoint by a criminal, who was fleeing from a robbery. The robber commanded the cabbie to drive. The driver proceeded, and at the first opportunity jumped from the cab. After the robber jumped from the cab, it ran onto the sidewalk and struck a mother and her two children. They survived with some injuries. The family (including the husband) sued Peerless Transportation in consortium, on the grounds of vicarious liability.
Question
1. Is the driver (and thus the cab company) liable for injuries?
Holding
1. No
Reasoning
1. Under normal circumstances, the driver's actions would fail to meet the required standard of care. However, the ordinary standard of care does not apply when an individual is faced with an emergency that is not of their own doing. Under the circumstances, the driver's actions were congruent with those of the fictional "ordinary man of reasonable prudence."
I'm kidding. Please do not go Killer Bees on a police officer. If you really must avoid a ticket, try my Safari Defense. That's where you pretend you are on safari and the police are hungry lions. Shut off your engine, roll up the windows, lock the doors, and DON'T MAKE EYE CONTACT! Eventually, the cop will get bored and just wander away.
A few quick items before we look at Cordas v. Peerless Transportation Co.
Consortium
We've already established that when a person is injured, they can sue for damages under tort law. It turns out that their partners (spouse, relatives, business partners, etc) may also seek to recover damages under the idea of consortium. For example, let's pretend I'm a victim of libel and as a result lose my job. Among other things, I can sue for lost wages. My wife can sue in consortium because I've been an awful husband ever since I got laid off (verbally abusive, lazy, whatever). The more injuries we have, the more money we get.
Vicarious Liability
As opposed to direct liability, vicarious liability is "the responsibility of the superior for the acts of the subordinate."
There are at least two advantages to suing a company instead of it's employee. First, a low-level employee doing their job is a sympathetic figure. An evil corporation is not. Second, the company should have more money than it's employee.
Cordas v. Peerless Transportation Co., 27 N.Y.S.2d 198 (1941)Facts
A cab driver was held at gunpoint by a criminal, who was fleeing from a robbery. The robber commanded the cabbie to drive. The driver proceeded, and at the first opportunity jumped from the cab. After the robber jumped from the cab, it ran onto the sidewalk and struck a mother and her two children. They survived with some injuries. The family (including the husband) sued Peerless Transportation in consortium, on the grounds of vicarious liability.
Question
1. Is the driver (and thus the cab company) liable for injuries?
Holding
1. No
Reasoning
1. Under normal circumstances, the driver's actions would fail to meet the required standard of care. However, the ordinary standard of care does not apply when an individual is faced with an emergency that is not of their own doing. Under the circumstances, the driver's actions were congruent with those of the fictional "ordinary man of reasonable prudence."
Saturday, January 10, 2009
Mitchell got SERVED!
How can a state court assert jurisdiction over a non-resident?
Pennoyer v. Neff , 95 U.S. 714 (1877)
Facts
Marcus Neff, a resident of California, wanted to obtain land in Oregon under a land grant. Neff needed the help of an attorney, so he hired John Mitchell to assist him. Mitchell later sued Neff in Oregon for unpaid legal fees. Mitchell told the court that he could not find Neff because he didn't know his address in California. He was instructed to place notice of the suit in an Oregon newspaper every Sunday for six weeks. Of course Neff never heard about the suit and lost becuase he did not show up for the proceedings. Oregon seized Neff's land and sold it to Mitchell, who then sold it to Pennoyer.
Question
1. Can a state court seize and sell property of an out-of-state resident without serving them notice of legal proceedings?
Holding
1. No
Reasoning
1. There are two ways a state can assert jurisdiction over a non-resident. The individual must be personally served notice, or their property must be seized prior to legal proceedings.
Notes
This case began as an in personam dispute, which means that one individual makes a claim against another.
Another type of case is in rem, when two individuals have a dispute over who owns a piece of property.
Finally we have quasi in rem cases, which is where Mitchell v. Neff ended up. In quasi in rem a court seizes a non-resident's property and rules on it. The court does this because it doesn't have jurisdiction over the non-resident.
It appears Mitchell was trying to pull a fast one. But since Neff was never served notice, Mitchell himself got SERVED!
Pennoyer v. Neff , 95 U.S. 714 (1877)
Facts
Marcus Neff, a resident of California, wanted to obtain land in Oregon under a land grant. Neff needed the help of an attorney, so he hired John Mitchell to assist him. Mitchell later sued Neff in Oregon for unpaid legal fees. Mitchell told the court that he could not find Neff because he didn't know his address in California. He was instructed to place notice of the suit in an Oregon newspaper every Sunday for six weeks. Of course Neff never heard about the suit and lost becuase he did not show up for the proceedings. Oregon seized Neff's land and sold it to Mitchell, who then sold it to Pennoyer.
Question
1. Can a state court seize and sell property of an out-of-state resident without serving them notice of legal proceedings?
Holding
1. No
Reasoning
1. There are two ways a state can assert jurisdiction over a non-resident. The individual must be personally served notice, or their property must be seized prior to legal proceedings.
Notes
This case began as an in personam dispute, which means that one individual makes a claim against another.
Another type of case is in rem, when two individuals have a dispute over who owns a piece of property.
Finally we have quasi in rem cases, which is where Mitchell v. Neff ended up. In quasi in rem a court seizes a non-resident's property and rules on it. The court does this because it doesn't have jurisdiction over the non-resident.
It appears Mitchell was trying to pull a fast one. But since Neff was never served notice, Mitchell himself got SERVED!
Thursday, January 8, 2009
McCardle take 2, making an omelet
I went slightly overboard when I scored Ex Parte McCardle a massive victory for Congress. Let's keep some big picture perspective and remember checks and balances. Yes, Congress can regulate the judiciary. But we shouldn't forget that it is actually SCOTUS who decides whether the regulations are necessary and proper. On the podcast, Weheneman offers an excellent image. In McCardle, SCOTUS is basically saying to Congress, "We'll cut you some slack, but don't forget that we're still the ones holding the leash."
Also, his summary of the case is much better than mine. McCardle will make more sense with some historical perspective. Let revisit it.
The period immediately after the civil war is known as Reconstruction. During this time the military became the temporary acting government in some (all?) of the former Confederate states. President Lincoln suspended habeus corpus (which protects citizens from imprisonment without due process) to ease the transition.
Later habeus corpus was reinstated, and shortly thereafter McCardle (a former Confederate soldier) began speaking out against the military government in his newspaper. When his appeal reached SCOTUS, Congress had a very strong interest in seeing him lose. If McCardle and others were allowed to speak freely against the military government/tribunal, reconstruction would be threatened. Congress took the opportunity to revoke habeus corpus, and it was up to SCOTUS to decide whether that action was unconstitutional. And SCOTUS let it happen!
Why would the Supreme Court allow a citizen to be detained without due process? Why would it tacitly allow a citizen's freedom of speech to be denied? Doesn't this decision sort of violate the spirit of the Constitution?
Actually, no.
Let's keep the necessary and proper clause in mind. SCOTUS must have felt that reconstruction of the country warranted denying a citizen his basic rights. If you want to make an omelet, you have to force an egg to be tried in front of a military tribunal, on penalty of death by hanging. Ouch.
For the history buffs out there, habeus corpus was suspended or limited 3 more times in U.S. history. In the aftermath of WWII and the Oklahoma City bombings, and currently. The current exceptions to habeus corpus (for suspected terrorists) are being pretty hotly contested in the courts.
Also, his summary of the case is much better than mine. McCardle will make more sense with some historical perspective. Let revisit it.
The period immediately after the civil war is known as Reconstruction. During this time the military became the temporary acting government in some (all?) of the former Confederate states. President Lincoln suspended habeus corpus (which protects citizens from imprisonment without due process) to ease the transition.
Later habeus corpus was reinstated, and shortly thereafter McCardle (a former Confederate soldier) began speaking out against the military government in his newspaper. When his appeal reached SCOTUS, Congress had a very strong interest in seeing him lose. If McCardle and others were allowed to speak freely against the military government/tribunal, reconstruction would be threatened. Congress took the opportunity to revoke habeus corpus, and it was up to SCOTUS to decide whether that action was unconstitutional. And SCOTUS let it happen!
Why would the Supreme Court allow a citizen to be detained without due process? Why would it tacitly allow a citizen's freedom of speech to be denied? Doesn't this decision sort of violate the spirit of the Constitution?
Actually, no.
Let's keep the necessary and proper clause in mind. SCOTUS must have felt that reconstruction of the country warranted denying a citizen his basic rights. If you want to make an omelet, you have to force an egg to be tried in front of a military tribunal, on penalty of death by hanging. Ouch.
For the history buffs out there, habeus corpus was suspended or limited 3 more times in U.S. history. In the aftermath of WWII and the Oklahoma City bombings, and currently. The current exceptions to habeus corpus (for suspected terrorists) are being pretty hotly contested in the courts.
Tuesday, January 6, 2009
Ex Parte McCardle...
...is latin for I'm sorry I burned down your frozen banana stand.
Either we've lost something in translation or my latin is rusty.
Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868)
Facts
McCardle was alleged to have published articles about the military that were both incendiary and libellous. He was detained by the military and requested a writ of habeus corpus, which would grant him freedom from their custody pending his trial. The writ was granted but the military detained him anyway. He appealed to SCOTUS to declare his detainment unlawful. When the case began SCOTUS had jurisdiction to grant the writ. Just before the ruling Congress passed legislation that repealed that jurisdiction.
Questions
1. Does SCOTUS have jurisdiction?
2. If so, was McCardle's detainment unconstitutional?
Holding
1. No
2. N/A
Reasoning
1. The Constitution provides Congress the power to regulate the judiciary. Remember McCulloch v. Maryland? Congress can do whatever it needs to, as long as it is necessary and proper.
2. N/A
Notes
-That is an impressive victory for Congress. The legislative body is truly the alpha-branch of our government. Even the president is pretty impotent without the Senate and House behind him. That's one of the subplots of Obama's first year that I find intriguing. Eventually he's going to butt heads with the DNC, and it's going to be like my senior prom all over again. Will Congressional Democrats dance with the girl that brought them (Pelosi), or the super-hot sophomore who looks awesome in her dress (Obama).
-I feel very confident putting The Cable Guy in my list of Top 5 underrated movies. I laugh every time I read about a writ of habeus corpus. "I'll put the SYSTEM on trial!"
Either we've lost something in translation or my latin is rusty.
Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868)
Facts
McCardle was alleged to have published articles about the military that were both incendiary and libellous. He was detained by the military and requested a writ of habeus corpus, which would grant him freedom from their custody pending his trial. The writ was granted but the military detained him anyway. He appealed to SCOTUS to declare his detainment unlawful. When the case began SCOTUS had jurisdiction to grant the writ. Just before the ruling Congress passed legislation that repealed that jurisdiction.
Questions
1. Does SCOTUS have jurisdiction?
2. If so, was McCardle's detainment unconstitutional?
Holding
1. No
2. N/A
Reasoning
1. The Constitution provides Congress the power to regulate the judiciary. Remember McCulloch v. Maryland? Congress can do whatever it needs to, as long as it is necessary and proper.
2. N/A
Notes
-That is an impressive victory for Congress. The legislative body is truly the alpha-branch of our government. Even the president is pretty impotent without the Senate and House behind him. That's one of the subplots of Obama's first year that I find intriguing. Eventually he's going to butt heads with the DNC, and it's going to be like my senior prom all over again. Will Congressional Democrats dance with the girl that brought them (Pelosi), or the super-hot sophomore who looks awesome in her dress (Obama).
-I feel very confident putting The Cable Guy in my list of Top 5 underrated movies. I laugh every time I read about a writ of habeus corpus. "I'll put the SYSTEM on trial!"
Sunday, January 4, 2009
Pennoyer primer
Later this week we'll take a look at out first Civil Procedure case, Pennoyer v. Neff. This case deals with the issue of personal jurisdiction. Let's take a quick look at subject matter jurisdiction and personal jurisdiction as explained by wikipedia.
Subject matter jurisdiction is "the authority of a court to hear cases relating to a specific subject matter." Civil courts hear civil cases. Family courts hear custody cases. SCOTUS hears constitutional cases. Judge Judy hears "I gave my mistress a key to my apartment and now all my Iron Eagle DVDs are gone" cases.
Personal jurisdiction is "the power of a court to render a judgment against a particular defendant." State courts do not have jurisdiction over nonresidents. The exception to this rule occurs when the individual is shown to have substantial dealings within the state.
Subject matter jurisdiction is "the authority of a court to hear cases relating to a specific subject matter." Civil courts hear civil cases. Family courts hear custody cases. SCOTUS hears constitutional cases. Judge Judy hears "I gave my mistress a key to my apartment and now all my Iron Eagle DVDs are gone" cases.
Personal jurisdiction is "the power of a court to render a judgment against a particular defendant." State courts do not have jurisdiction over nonresidents. The exception to this rule occurs when the individual is shown to have substantial dealings within the state.
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