November 2010 Archives

Are the courts ahead of public opinion when it comes to gay rights issues such as same sex marriage and don't ask, don't tell? And if they are, will the courts lead the way to social change, or create a backlash? 

These issues are relevant questions, as California's Proposition 8 heads to arguments before the 9th Circuit Court of Appeals, Massachusetts courts rule the Defense of Marriage Act unconstitutional, and the Obama Administration deals with don't ask don't tell in both the courts and Congress.

This convergence of activity on gay rights issues caused Time Magazine to ask, if the courts leap ahead of public opinion on controversial social issues, can it cause more harm than good?

Although the Supreme Court often has the highest approval rating among the three branches of government, it is also the branch that the American public knows the least about. 

Not for long.

A new fantasy game allows players (and especially high school students) to learn about Supreme Court cases in a fun way.

The web-based game, FantasyScotus.org, was modeled after popular fantasy sports games. But instead of drafting players and trading through a faux football season, the players are given a chance to analyze current and past high-profile Supreme Court cases and guess the outcome. Players are awarded points and other honors based on their guesses in the Supreme Court fantasy game, CNN reports.

Attention holiday shoppers: the Monday after Thanksgiving is hereby dubbed "Cyber Monday."

Much like "Black Friday," Cyber Monday is a day dedicated to post holiday sales. The twist is that the sales are offered online. Last year, 96.5 million Americans shopped online on Cyber Monday. That number is expected to grow this year. Over 54 percent of Americans with internet access plan to shop online on Cyber Monday.

However, with all that online shopping, there are risks involved. The Better Business Bureau put together a list of 10 ways to avoid becoming a victim this year. Here are a few of my favorites:

Thinking about participating in National Opt Out Day? Transportation Security Administration (TSA) says you might want to think twice before you refuse to submit to the airport scanner. That's because it can fine individuals up to $11,000 for refusing to participate once passengers have cleared the initial security line.

The National Opt Out Day is an event encouraging airplane passengers to refuse the new body scanning machines and instead choose the new "enhanced" security pat-downs. Those who refuse both could be subject to a civil penalty for their refusal. The penalty is designed to deter terrorists from backing out of a security check once one begins. However the TSA has never fined a traveler for not completing the screening process.

Ho, Ho, Holy Cow, is it that time of year already? For those of us taken off guard by how fast the season of giving has come upon us, there is some good gift-giving news. Many among us love the gift card, that one size fits all, never have to return it gift. This year, a gift card is a better gift than ever, as new rules are working (finally) in favor of the consumer to make gift cards less restrictive and less expensive.

Gift cards are increasingly the gift of choice according to the National Retail Federation, as this year, over 50% of adults say they would prefer gift cards over the traditional (it's a sweater, again!) gifts.

There are two kinds of gift cards. The first is a "closed loop" gift card and is issued by, and only redeemable from, a retailer like Target, Borders Books, or Neiman Marcus. The other is called a "network" card, is issued like a credit card by companies such as Visa or American Express and can be used for purchases anywhere the credit card is accepted.

Black Friday will soon be here. The Black Friday buzz, and ads, have been everywhere for weeks advertising big discounts for the day after Thanksgiving.

For those people looking forward to Black Friday shopping, the question really isn't whether to shop but more appropriately, how to shop. With the hassle of the crowds, parking, and everything else that accompanies the early morning rush to the mall, is it better just to stay home and shop online for Black Friday 2010?

If the tradition is shopping then it may be hard to part with the early alarm clock and hours of standing. But if the latter can be avoided by purchasing the items from the comfort off a computer chair then maybe there is a whole new tradition to be had. Skipping the stampede and heading straight to your computer may be the best way to handle your holiday shopping and beyond. There has been quite the rise in online shopping in recent years, and Black Friday is no exception.

Cyberbullying has been a recurring topic here at FindLaw. Kids do the darndest things, and sometimes those things cross the line into cyberbulliyng law. What used to be limited to name calling and occasional punches on a playground has become amplified by new technology. Kids can take to Facebook to "kick a ginger," or cause many other sorts of online harassment. Technology has changed, but what hasn't changed is that many kids like to pick on other kids.

In response, a new piece of federal anti-harassment legislation has been introduced by Sen. Frank Lautenberg, D-New Jersey. CNN reports that the family of a Rutgers student, who committed suicide after having a private encounter of his broadcast online, has given Lautenberg permission to name the bill after him. It will be known as the Tyler Clementi Higher Education Anti-Harassment Act."

Here at Law and Daily Life, you can read about everything from the 20-year anniversary of the Americans With Disabilities Act, to Banned Books Week. And since you can never have too many reasons to count your blessings, we would like to shed some light on National Adoption Day, which is November 20.

On this day, family courts in all 50 states will focus on and celebrate some of the good things that can take place in a courtroom, reports the Middletown Journal. In Butler County, Ohio, Judge Randy Rogers will hold a special Saturday session in his probate court to help seven families adopt 11 children, all of whom were removed from homes by Butler County Children Services. Adoption means more than just homes for newborns and international children in need. It can also mean a whole new world to child in America's foster care system.

So much for the Paycheck Fairness Act. The bill which was designed to put an end to wage discrimination died an unceremonious death, when the bill came up two votes short of moving forward. The bill received 58 votes, but needed 60 in order to survive the cloture vote. Senate Republicans are taking credit for blocking the measure.

Cloture is a parliamentary procedure, which is used to move a debate along to a vote. If a motion for cloture passes, debate must end, and a vote must be taken. Cloture is used to defeat filibusters, or to avoid the introduction of amendments designed to derail the bill at issue.

It was only a matter of time. A federal suit has been filed over the “enhanced” pat-downs and full body portraits courtesy of airport scanners that have been the topic of so much discussion, dislike and distrust. As we noted in a post earlier in the week, the public is pushing back on the new security tools, even as it recognizes the need for them. On November 16, two airline pilots filed suit, saying the procedures are a violation of the Fourth Amendment prohibition against unreasonable search and seizure.

The suit goes right to the balancing act between the right to privacy, the protections of the Fourth Amendment and the fact that no one wants to get on an airplane with someone who may have a concealed weapon. According to The Wall Street Journal, the suit claims there is no link between the reasonable suspicion of criminal activity usually required for a search and the invasive screenings and pat-downs at the airport.

Former California gubernatorial candidate Meg Whitman has agreed to pay $5,500 to settle with her former housekeeper, Nicky Diaz Santillan. Diaz Santillan came forth with charges that she was owed expenses and back pay for work performed for Whitman and her husband, Dr. Griffith Harsh IV. According to claims made by Diaz Santillan and her attorney Gloria Allred, she was owed payment for hours worked and money for gas and additional expenses incurred during her work. Whitman says she fired Diaz Santillan after 9 years when she discovered she was an illegal alien.

Whitman has maintained that the charges against her were a "baseless smear attack" orchestrated by her opponent, Democrat Jerry Brown and the unions who supported his campaign, reports the Associated Press. The timing of the charges was indeed unfortunate for Whitman's campaign, as she seemed to lose support from Latinos and from independent voters after the charges were made public late in September of this year.

It's the old chicken or the egg question with a caffeine infused, malt-liquor twist.

Which came first? The widespread abuse of Four Loko, or calls to ban it? In other words, does the bad press actually make Four Loko more popular with young people?

Four Loko, in case you haven't heard, is an alcoholic beverage that contains a mixture of caffeine and alcohol and has been linked to a number of young adults getting very drunk, as well as one possible death.

Whether a rite of passage or a violation of rights, hazing of any form usually comes loaded with controversy. Five members of the Needham high school soccer team in Massachusetts are being sidelined for some off-the-field antics that involved hazing two freshman members of the team. Specifically, the girls have been accused of blindfolding the freshman and dragging them across the soccer field with dog leashes, according to MSNBC. The Needham soccer players are suspended pending further investigation into the case.

The hazing incident is having repercussions for the high school coach as well. In failing to report the incident right away, the girls soccer coach has been placed on leave. Parents of the suspended players have filed an injunction seeking to allow the girls to play in an important game, but the presiding judge refused to overturn the school's decision.

The highest state court in California has ruled, but the question seems not to be settled just yet. On Nov. 15, the California Supreme Court ruled it was legal for the state to give in-state tuition benefits to illegal immigrants who had attended at least three years of school in the state while denying in-state tuition to U.S. citizens who live out of state.

The unanimous court found illegal immigrants can be eligible for the same lesser rate of tuition at public colleges and universities as legal residents of the state, reports The New York Times. This can represent a savings of as much as $12,000 compared to out-of-state tuition rates. Illegal immigrants remain ineligible for either state or federal financial aid.

As a rallying cry, "don't touch my junk" doesn't have quite the eloquence of "give me liberty or give me death," but it is heading in that direction. The news has spread of a software programmer who was tossed out of the San Diego airport after he got into an altercation with a TSA screener about the new, more aggressive pat-down which is required for those who opt-out of the full body scan security check.

Things are starting get testy at the airport, amid threats of a national opt-out day. With hanksgiving travel just around the corner, will TSA officers hear more pleas of "don't touch my junk?"

"From Slave Ship to Freedom Road" insists that students think about history, rather than simply learn the facts.

This is an excerpt from a Scholastic.com review of the book "From Slave Ship to Freedom Road," which was used to teach 5th graders during a slavery lesson for Black History Month in a Detroit-area school. But one parent found the book to be a form of discrimination. Jamey Petree, father of Jala Petree, is suing the Michigan school for racial discrimination, racial harassment, emotional distress and creating a hostile environment (among other claims) for the teacher's use of the book in class.

Much like arguments against Mark Twain's "Huckleberry Finn," the book in question presents at least some of the dark side of slavery in American History. According to the Macomb Daily, the book includes "N-word" references and compares African-Americans' skin color to "Satan's thoughts" and "night darkness." The excerpts talk about the buying and selling of slaves. Horrible subjects to be sure, and according to the suit, harmful to the plaintiff's child.

A basketball coach in Jackson, Mississippi has been sued for using corporal punishment on his student athletes. Coach Marlon Dorsey has been disciplined, according to the school, for hitting students with a weightlifting belt when they failed to run basketball plays properly. Coach Dorsey has admitted to hitting the students and some of the punishment even took place while players parents were present. So why hasn't the coach been fired?

It is not necessarily as clear cut a case of abuse as it might seem. Many school districts in the state of Mississippi still permit the use of corporal punishment on students. In those schools, according to the Clarion Ledger, parents must have the opportunity to opt-out of allowing their children to be hit as punishment. In addition, under Mississippi law, the punishment must be used in a reasonable manner.

Should pilots have to pass through the same security checks as other passengers? Passengers have already been upset enough about TSA screening and body scanners. Now pilots and flight attendants are calling for a "pat-down opt out day." They are upset about being subjected to a privacy-invading new body scanner that may have unsafe radiation levels. The only other option is a new kind of pat down that has made many people uncomfortable. Some have called it "disgraceful for a pilot in uniform."

Currently pilots must choose between controversial full-body scanners or a very hands-on "enhanced pat-down". Now unions representing U.S. Airways, American Airlines pilots as well as flight attendants are advising members to opt out of full body scans, even if the alternative means having their genitals touched. But pilots see it as a false choice, and say they don't like either of the options.

By now, you may be familiar with the worst kept secret in America. This week a "confidential" leaked memo announcing all Google employees will receive a 10% raise leaked. No doubt the Google grandees who created the confidential internal email to the company's 23,000 full and part-time employees knew that the good news would be hard for such a large number of people to keep to themselves. One person did not, and he was fired.

The leaked email, posted in part on The Huffington Post (and many, many other news sources), states clearly it is for internal use only. However, thanks to the former Google employee who leaked the memo, we all get to be a part of that "internal" audience. Whether this was a genuine leak, or whether Google knew it would be leaked and would give them a PR boost, is a question raised by The Huffington Post.

There's still time left to enter the "When Life Gets Legal Video Contest." At stake in the FindLaw video contest: a cool $5,000. Two runners up will also receive $1,000. In addition, the winner will be featured in the next FindLaw commercial. That's right, you could be a big star on television, just like Snooki.

All you have to do is create your own video and submit it by December 12, 2010. Voting ends on December 31, 2010.

There are so many remembrances to be made and people to be grateful for on Veteran's Day. The following small slice of news regarding veterans may not be on the radar for many Americans, but it is important to at least some of those who have served our country. In Erie County, New York, a judge who was concerned with the young vets coming before him on criminal charges created the first Veterans Court. There are now Veterans Courts in California, Pennsylvania, Oklahoma and Wisconsin.

It is well known that many vets cope with problems when they return home from a deployment and must work to re-adjust to civilian life as well as to any injuries, both physical and mental. Attempts to cope alone can lead to substance abuse or a brush with the law. The New York Times reports that Judge Robert T. Russell, Jr. noticed many of the vets he was seeing in court had serious drug or mental health problems. So Judge Russell created a program to deal with the criminal charges and give these vets a path to recovery.

Amazon.com has found itself in the middle of a pedophilia controversy after allowing the sale of a guide for pedophiles. "The Pedophile's Guide to Love and Pleasure," is currently for sale, available as an ebook in the Kindle store. The book, written and self-published by Phillip R. Greaves has been for sale on the site since October 28, 2010.

Surprisingly to many, Amazon is standing behind the book. In an emailed statement, the company said, "Amazon believes it is censorship not to sell certain books simply because we or others believe their message is objectionable ... Amazon does not support or promote hatred or criminal acts, however, we do support the right of every individual to make their own purchasing decisions."

Ever heard of adverse possession?

It's a seemingly odd area of law that provides a path for a person to take possession of property that is legally owned by someone else. Under adverse possession, you can become the legal owner of someone else's property if you take possession of it for several years. States' laws on adverse possession vary, but we have a complete list available at Findlaw.

People sometimes go online to vent and complain about work or their boss. It's not uncommon for employees to get in trouble over things they post on the Internet.

But are gripes about our jobs protected First Amendment speech? If other coworkers join in and respond to the discussion, the National Labor Relations Board believes it is.

The NLRB recently filed a complaint saying that an employer violated the federal National Labor Relations Act by firing an employee for criticizing her supervisor on Facebook, NPR reports. In its complaint, the NLRB argues Facebook complaints are protected speech under the First Amendment.

The case of a Utah couple charged with a crime for photos they took of a father kissing his naked baby is far from clear cut and simple. It will take a while to fully understand the rights and wrongs of photographing your naked baby. These particular Utah parents were arrested and deported, and others could run into similar problems.

What happed to Alma Vasquez and Sergio Diaz-Palomino this past spring has brought up questions about how safe it is, not just for children, but for their parents, to post naked baby pictures online. Or, in this case, to send them to Walgreens to be developed, reports MSNBC. The Utah couple sent pictures to the local Walgreens which showed Diaz-Palomino kissing his son's buttocks and allegedly his genitals after the couple bathed the infant. A worker flagged the pictures for police who arrested the couple. Although charges of sexual exploitation of a minor and sexual abuse were dropped, both parents were deported.

How a tragic suicide case has turned into an investigation into New Jersey privacy laws is a new exploration into the legal landscape of social media. Rutgers freshman Tyler Clementi committed suicide after he found out his college roommate had been using a webcam (and Twitter) to spy on him during intimate moments with another man. Clementi ultimately jumped from The George Washington Bridge, leaving a suicide note on his Facebook account.

Tyler Clementi's death will now mark the first time New Jersey privacy laws, which were enacted in 2003, will be tested in a courtroom, according to the New York Times. More than just suicide, his death has served to bolster campaigns against cyber bullying, hate crimes, and gay teens. Clementi's former roommate (Dhuran Ravi) and a high school friend (Molly Wei) will both stand trial for their actions.

How much would you pay for the following songs?

• Guns N Roses "Welcome to the Jungle"; "November Rain"
• Vanessa Williams "Save the Best for Last"
• Janet Jackson "Let's Wait Awhile"
• Gloria Estefan "Here We Are"; "Coming Out of the Heart"; "Rhythm is Gonna Get You"
• Goo Goo Dolls "Iris"
• Journey "Faithfully"; "Don't Stop Believing"
• Sara McLachlan "Possession"; "Building a Mystery"
• Aerosmith "Cryin'"
• Linkin Park "One Step Closer"
• Def Leppard "Pour Some Sugar on Me"
• Reba McEntire "One Honest Heart"
• Bryan Adams "Somebody"
• No Doubt "Bathwater"; "Hella Good"; "Different People"
• Sheryl Crow "Run Baby Run"
• Richard Marx "Now and Forever"
• Destiny's Child "Bills, Bills, Bills"
• Green Day "Basket Case"

Jammie Thomas-Rasset was ordered to pay $62,500 each for a total of $1.5 million. Thomas-Rasset was sued by the Recording Industry Association of America over file sharing for downloading the 24 songs on file sharing site Kazaa. Her case was the first file share case that went before a jury. It's a bit of a convoluted matter, as this is actually the third verdict returned by a jury in Minnesota on the matter. It's also unlikely to be the last, Wired reports. Under the Copyright Act, a jury can award up to $150,000 per illegally downloaded song.

Smoking is down in the U.S. and smoking bans are up. Of course that's not to say that the decrease in smoking is distributed evenly or that everyone is happy about smoking bans. According to Slate, less than 13 percent of Americans smoke every day. However in states such as Kentucky and West Virginia, 40 percent of the population smokes on a regular basis.

When it comes to smoking in bars and restaurants, cities and states continue to fight a back and forth between those who want all-out smoking bans and those that believe there should be some places left to smoke.

Is Big Brother your next door neighbor? In an effort to catch neighbors in the act of doing everything from keying their cars to dumping dog waste, homeowners are bringing out the eye in the sky; or at least the video surveillance cam purchased from a local electronics store. For allegations that used to be he said/she said, there is now bad behavior caught on tape and posted to YouTube.

Take Floridian Steve Miller, who purchased a "$400 do-it-yourself video surveillance kit," complete with a motion-activated camera. The New York Times reports that Miller decided to video tape his yard after dog waste in plastic bags magically appeared in his manicured landscaping. Thanks to his video equipment, Miller was able to record the neighbor he suspected of dumping dog feces in his yard. Miller showed the video to the community security patrol and, according to The Times, the wayward neighbor was charged with improper waste disposal, littering and leash law violations.

Basketball player Kye Allums has a lot to celebrate these days. The transgender George Washington University junior will be the first transgender man to play on a women's Division I basketball team. The 20-year-old interior design major said the hardest part of the whole process was telling his basketball coach.

"I used to feel like trans anything was really weird and those people were crazy and I wondered, 'How can you feel like that?' And then I looked it up on the internet and thought, 'Oh my God I am one of those weird people," Allums recently told Outsports, reported The New York Daily News.

Now, Kye Allums is also a trailblazer for transgendered athletes.

The Google polling app was supposed to be a convenient way for users to track down their nearest polling station to vote in the recent elections. Unfortunately, not all the directions were accurate, and the app ended up misleading voters, creating the potential that some (or many) were unable to vote.

As many as 727,000 households in 12 states may have been misled by the polling location technology, according to Fast Company. The Google polling app draws its data from the Voting Information Project as well as various elections agencies. In theory, the app is supposed to allow a user to type in their address and then have a list of the closest polling locations and hours within seconds of pressing submit. In reality, the addresses had a high error rate in some states.

Family law judges have a new tool in their toolbox to help divorced parents stay in contact with their children. More and more judges are turning to virtual visitation, or e-visitation, as a supplement to regular visitation for non-custodial parents. This rise in the use of Skype and other web-chat services will allow parents to stay in contact with their children in a way that improves on the "old fashioned" telephone.

Virtual visitation is not something that judges are using just in tech hot spots like Silicon Valley or Manhattan. According to an article in FindLaw's Writ, courts in Utah and Sufflolk County, N.Y. have ordered e-visitation, but the option is also currently available in Florida, Illinois, North Carolina, Texas, and Wisconsin as well.

The smoke has died down on California Proposition 19 for now. The controversial California proposition was on the most recent ballot and would have legalized marijuana in the Golden State. If the measure had passed, California would have been the first state in the nation to legalize the use of marijuana for purposes other than medical reasons.

The proposition's failing was the product of low voter turnout by many of the young voters that would have approved the measure. The Washington Post reports that the same or a similar proposition will likely reappear on ballots in 2012.

A push-pull on school spending is a constant in many states. In California, it is part of the political landscape. In Kansas, it is now part of the legal landscape with a new lawsuit over cuts in funds to Kansas schools. A group of 63 school districts in Kansas filed suit on November 1, claiming that the legislature's cuts in funding violate the state constitution.

The plaintiffs in the suit say that despite a 2005 agreement to fund Kansas schools at a set level, state lawmakers have cut at least $303 million from the schools, according to the Kansas City Star. There are two opposing views on the situation that led to the suit. John Robb, an attorney for plaintiffs in the suit, says intentional revenue cuts allowed lawmakers to "plead poverty" when the time came to pay for school funding.

Arizona's controversial and highly publicized immigration law, SB 1070, now has some explaining to do. The polarizing law, which critics say would legalize racial profiling, was argued at the Ninth Circuit in San Francisco on Monday. The three-judge panel heard arguments for and against the constitutionality of the Arizona immigration law, and whether federal authority prevents the state from taking action, reports The New York Times.

Arizona Governor Jan Brewer's legal team is appealing the decision that suspended many parts of the law one day before it was supposed to take effect earlier this year. The SB 1070 arguments begin just one day before Brewer seeks election for her first full term as Arizona Governor. The primary focus of the current SB 1070 arguments looks at whether a state can take it upon itself to enforce immigration laws.

Apple is taking on Motorola in court for allegedly infringing on Apple patents used for smart phones. According to a counter-suit filed by Apple, Motorola infringed upon Apple's multi-touch patents as well as other patents.

Many are surprised that Apple waited so long to begin suing over their multi-touch patents. The company is no stranger to patent litigation. When the first generation iPhone came out, the multi-touch technology was considered groundbreaking. Today, nearly all smart phones are using technology that appears to be quite similar. Ultimately it will be up to the courts to decide whether the similarity reaches the level of patent infringement.

Americans are not fond of laws that tell us we "have to" do something. Take for instance the still constant fight over helmet laws. In this election season, could it be time to consider one of the biggest "have to" laws of all: compulsory voting? Does a high turnout generate a better political process? Some will remember that the former USSR had a "voter" turnout hovering around 99%, but little in the way of government reaction to the will of the actual voter in the booth. The Aussies do it, what about U.S.?

The arguments for and against compulsory voting or mandatory voting have been intelligently researched and re-hashed far beyond the scope of a blog post, so let us limit our discussion to this: what are some of the often mentioned arguments for and against a compulsory vote? In a mid-term election, whose turnout is historically far below that of a presidential year, should we put pressure on ourselves and our neighbors to get out the vote whether we want to or not?

Voter fraud and voter intimidation. Both terms get thrown around quite a bit during election season. But how much is hype and how much is for real? Confirmed instances of voter fraud are few and far between, though such allegations are constant. Minority voter intimidation is another matter. While the examples of confirmed minority voter intimidation are limited, there is plenty of behavior that walks the line between legal and illegal.

For example, part of the problem seems to be the very groups who claim to exist to stop voter fraud. A number of vote monitor or vote watch groups assemble at polling stations to "keep an eye out" for illegal voters and voter intimidation. However, the groups themselves are frequently agenda driven and are sometimes accused of voter intimidation.

"These are elections. They are highly emotional and, of course, politically charged," said Wendy R. Weiser, deputy director of the democracy program at New York University's Brennan Center for Justice, The Washington Post reports. "There is a concern that having a lot of untrained citizens acting in a policing capacity, or trying to ferret out voter fraud, might unintentionally lead to voter intimidation and interfere with the voting process."

Airport screening is a necessary and mostly accepted part of air travel these days. After 9/11, many airports increased the nature of the inspection. For the most part, travelers put their luggage through the x-ray machine and go on their way. For those individuals singled out for a pat down, they may find the encounter to be a little friendlier than before. Specifically, TSA officials are now using their palms (instead of the back of their hands) to inspect the traveler.

CNN quotes a recent TSA statement on the new pat-down procedures: "Pat-downs are an important tool to help TSA detect hidden and dangerous items such as explosives ... [passengers] should continue to expect an unpredictable mix of security layers that include explosives trace detection, advanced imaging technology, canine teams, among other things."

Even if you read this story after the Halloween holiday, the costumes as well as the actions in it will spook you. A Pennsylvania debt collection agency was sued for holding phony debt hearings in a room decorated to look like a courtroom. The phony hearings came complete with phony judge, but the money they took was real.

The Pennsylvania Attorney General has filed a lawsuit against Unicredit America Inc., also known as the Unicredit Debt Resolution Center, according to the Associated Press. The suit seeks restitution for consumers who lost money in the alleged phony hearings held by the debt collectors. The suit alleges that sheriff's deputies (fake) delivered notices of hearings (fake) to debtors before bringing them to the courtroom (fake) for a hearing (fake).