Supreme Court denies Berkeley Sea Scouts Appeal

I blogged earlier about the City of Berkeley's refusal to renew the Sea Scouts' free marina lease.  California courts held that the City was free to do so without infringing on the Sea Scouts' First Amendment and Free Exercise Clause rights. 

Posted by Joseph R. McFaul on Monday, October 16, 2006 at 00:00 Comments Closed

New Architect for Federal Courthouse Design Appointed

The Wall Street Journal reports that the new chief architect for federal buildings has been appointed, after a long vacancy.  According to the article the new chief architect, Thomas Gordon Smith (website) is noted for his traditional architecture inspired by Roman temples and palaces.
 
Fortunately, some of our local courthouses are visually spectacular.  The recently remodeled Riverside courthouse and the Santa Ana Federal courthouse are both visually striking.  The Santa Barbara Courthouse is deservedly a tourist attraction.

On the other hand, some other local courthouses have suffered from long deferred maintenance and need to be remodeled or entirely replaced.

If you are like most people, you will find that courthouse architecture does make a difference in the perception of justice.  Run-down and shabby courthouses just seem tired and that weariness infects all of the proceedings.  Those buildings that are majestic likewise seem to inspire dignity in even the routine court proceedings.  The environment does make a difference.

What are your best and worst courthouses?

Posted by Joseph R. McFaul on Friday, September 08, 2006 at 00:00 Comments Closed

Conquering the Universe One Galaxy at a Time

The Beltway Blogroll reports that How Appealing and The Volokh Conspiracy were cited during Senate Floor debate.  Well-deserved congratulations to both.   Broadway next?

Posted by Joseph R. McFaul on Wednesday, September 06, 2006 at 00:00 Comments Closed

Owning only half a baseball card?

Sharks once posted on insurability of collectibles such as baseball cards.  It seems obvious you have to own the card to insure it.  But suppose you don’t own the whole card, only the front half?

Law Professor Jack Williams has published  an LA Times article assuring us that baseball card collectors own both sides of a baseball card.
Now, that may not seem like news to you, but he previously wrote an entire law review article on the subject.  The article did not receive widespread acclaim in the legal community.  He wryly notes a law review article on an obscure legal subject not involving large sums of money is unlikely likely to garner much attention.

Ownership of the back side of a baseball card certainly appears to fall into that category.  That is, until the advent of fantasy leagues.  In a fantasy baseball league, fans become virtual owners of  fantasy teams.  Your fantasy team may have both Randy Johnson and Barry Bonds for example although both play in different leagues in real life.

Your fantasy team is credited with the real life individual statistics of the players on your team, even though they play for multiple teams. A player having a good individual season but playing for a bad team in real life may be propelling his virtual fantasy team to the pennant.  Fantasy leagues have formed all over the country and there rare computer programs available to manage the leagues based on the real games.  It is fair to say that the fantasy leagues have arrived in the major leagues—which means there's money to be had.

This brings us back to the reverse side of the baseball cards.  The reverse side usually has the individual player's career statistics, and is useful in deciding who to draft for your “team.” 

 Recently Major League Baseball claimed a copyright, trademark or at least proprietary interest in these statistics.   The arguments made in Professor Williams’ article is that such information is not copyrightable unless their selection or arrangement is sufficiently original.

More commentary is here: 

Link to the opinion.

Posted by Joseph R. McFaul on Monday, August 21, 2006 at 00:00 Comments Closed

Yet another reason I won't be on a jury.

In the very early days of the internet, well before blogs, I was a member of a usenet in which another member, whose identity was not known was picked for jury duty.  He then discussed the evidence online in an eagerly awaited daily usenet  report, later including the jury deliberations.  He had very definite unfavorable opinions regarding the defendant, defense counsel and his fellow jurors who took so long to convict.  Since I didn’t know his name, the defendant’s name or even the jurisdiction there wasn't much I could do.  The daily reports were fascinating (How did he survive voir dire?).  Not surprisingly in light of his online persona, the defendant was convicted.

Now, a juror’s blog is the basis for an appeal.  In this case, the juror posted general thoughts prior to his selection as a juror, referring generally to defendants as "riff-raff."  Later he was selected for jury duty and voted, along with other jurors to convict.

The question on appeal was whether he truly understood the criminal justice system in light of his pretrial blog post.  These facts do not appear to be a good basis to set aside the verdict, but more egregious facts may be.

Should lawyers research jurors online and inquire about juror’s My Space and blogs at voir dire?

Via How Appealing.

Posted by Joseph R. McFaul on Monday, July 31, 2006 at 00:00 Comments Closed

Law Review Article suggestions?

When I was  a student editor on law review, it was often difficult to determine if a particular topic was appropriate for student notes.  On one hand, many topics have already been exhaustively explored and yet another student note is extremely unlikely to add anything useful to the store of legal knowledge.  On the other hands, those topics that have not been written about extensively are ignored for good reasons. 

The best sources of "live" topics are often law professors who recognize good topics but are too busy to explore them and judges and lawyers who come across good topics in practice but are unable to put the time and resources into a published articles.  Law students do not often cross paths with daily practitioners and many good topics go unrecognized.

Professor Eugene Volokh and UCLA Law Library have put together a web based clearinghouse for suggesting suitable student law review topics.  I f you have any suggestions, check out Volokh Conspiracy for a more complete description and make your suggestions.  Law students will be forever grateful for your suggestions.

Posted by Joseph R. McFaul on Saturday, July 29, 2006 at 00:00 Comments Closed

Lawyer guilty of extortion in Riverdance star case.

Most California lawyers know that it is a violation of the State bar rules to threaten criminal action to collect a civil debt.  Well, if you can’t threaten to have them arrested can you threaten to go public?

No. it’s extortion, says the California Supreme Court.

In Flatley v. Mauro, Michael Flatley sued lawyer Dean Mauro for civil extortion and intentional infliction of emotional distress.  Mauro represented a woman that claimed she was raped by the former Riverdance star who has since established a solo career in Irish dance.

On behalf of the woman, Mauro, admitted to practice in Illinois, sent a pre-litigation demand letter. The letter’s contents are detailed in the opinion. The letter threatens that the plaintiff’s specific allegations will “become a matter of public record” if a lawsuit is filed.  The letter additionally stated that Flatley’s US and UK finances would be examined and made part of the public record to establish the measure of punitive damages.  The attorney expressed the opinion that, “we are positive the worldwide media will enjoy what they find.”  The letter continued with veiled references to criminal action and adverse immigration action if the matter was not settled.  Illinois has a law similar to California’s that makes it unethical for an attorney to threaten criminal action to gain an advantage in a civil matter.

Mauro challenged Flatley’s lawsuit by filing a SLAPP motion claiming that the pre-litigation letter was privileged communications in the course of litigation and Flatley’s lawsuit was intended to chill his free speech rights

The Supreme Court held that the letter constituted criminal extortion as a matter of law and was not protected speech.  On that basis, Flatley’s case could proceed.  The attorney’s letter was so outrageous that the result should have been predictable.

Posted by Joseph R. McFaul on Friday, July 28, 2006 at 00:00 Comments Closed

Golfer's shot flies off course, court follows

One of my favorite topics is the primary assumption of risk doctrine.  The courts struggle with the concept.  A recent court of appeals decision adds to the confusion.

The California Court of Appeals in Shin v. Ahn held that a golfer injured by another golfer's errant shot can sue the clumsy golfer.  The court refused to apply the doctrine of primary assumption of risk to this case.  I don't often say this, but this time the court really blew it.  Of course, this case is covered by primary assumption of risk. 

The court had to address no less than three prior California "golf ball" cases (American Golf, Dilger and Morgan) all holding that golfing injuries caused by errant golf balls were within the primary assumption of risk doctrine.  The Shin court distinguished this prior body of law by relying on an out of state case, where the primary assumption of risk doctrine may even apply.  To compound the error, the court also relied on a California "discus" case, holding that a person injured by a badly thrown discus is not barred by the primary assumption of risk doctrine.  The court found this discus case to be persuasive because "discus bears some similarity to golf."  Well yes, in the same sense that a Radio Flyer is similar to an Indy Car.  Both have four wheels and a driver, I suppose.

The Shin court concluded that the defendant had an obligation to check the location of inattentive bystanders before striking the ball.   That would not have prevented this accident.  According to the opinion itself, the defendant hit a golf ball that traveled at a 45 degree angle to the fairway.  In short, the golf ball was off-course immediately after being struck.  In the earlier American Golf case, the court held that primary assumption applied when a golfer was struck by a ball that ricocheted of a yardage marker.  The court in Shin distinguished American Golf by observing that the injured golfer was in a different foursome, a distinction without a difference.

The dissenting judge ridiculed the majority's reliance on out of state and inapposite cases and rightly held that the earlier trio of golf cases was indistinguishable from the present case. 

The court went off track in parsing out the details of the injury.  Primary assumption of risk is intended to bar recovery for  foreseeable sports related injuries that typically arise in a sport.  If the injury is the type that is reasonably foreseeable, regardless of the exact mechanism injury, then primary assumption of risk applies.

In yet another golf ball case, the Hawaiian Supreme Court got to the right result.

Posted by Joseph R. McFaul on Thursday, July 27, 2006 at 00:00 Comments Closed