law

Loading the BRICKS from my FRONT YARD into a DUMPSTER because my neighbor TODD is a FUCKHEAD

11.jpg

Oregon Senator Ron Wyden has unveiled updated privacy legislation he says will finally bring accountability to corporations that play fast and loose with your private data.

Dubbed the Mind Your Own Business Act, the bill promises consumers the ability to opt out of data collection and sale with a single click. It also demands that corporations be transparent as to how consumer data is collected, used, and who it’s sold to, while imposing harsh fines and prison sentences upon corporations and executives that misuse consumer data and lie about it. […]

“Mark Zuckerberg won’t take Americans’ privacy seriously unless he feels personal consequences,” Wyden said. “A slap on the wrist from the FTC won’t do the job, so under my bill he’d face jail time for lying to the government.”

{ Vice | Continue reading }

art { Nick Knight, Transhuman After All, VMAN, 2013 }

broad beans, hig, steak, hag, pepper the diamond bone

43.jpg

You might (or might not) be surprised at how often in my work as a mortician I am asked whether a mourning family member can keep a dearly departed’s skull. […] In theory, people get to decide what happens to their body after death. In reality, it is near impossible to get legal permission to display a relative’s skeleton. […]

As a funeral professional, I frankly have no idea what equipment a proper decapitation requires. The subsequent de-fleshing would probably involve boiling and/or dermestid beetles, incredible creatures used in museums and forensic labs to delicately eat the dead flesh off a skeleton without destroying the bones. Dermestids are happy to wade into a gruesome, sticky mass of decaying flesh and delicately clean around even the tiniest of bones. […]

Abuse-of-corpse laws exist for a reason. They protect people’s bodies from being mistreated (ahem, necrophilia). They also prevent a corpse from being snatched from the morgue and used for research or public exhibition without the dead person’s consent. History is littered with such violations. Medical professionals have stolen corpses and even dug up fresh graves to get bodies for dissection and research. […]

In the United States, no federal law prevents owning, buying, or selling human remains, unless the remains are Native American. Otherwise, whether you’re able to sell or own human remains is decided by each individual state. At least 38 states have laws that should prevent the sale of human remains, but in reality the laws are vague, confusing, and enforced at random. In one seven-month period in 2012–13, 454 human skulls were listed on eBay, with an average opening bid of just under $650 (eBay subsequently banned the practice).

{ The Atlantic | Continue reading }

In this big game that we play, life, it’s not what you hope for, it’s not what you deserve, it’s what you take

A woman who was knocked unconscious by a cyclist will be awarded compensation, despite a judge finding she had stepped into the road while looking at her phone.

Robert Hazeldean, a garden designer, who was also knocked out by the collision, will pay thousands in damages and court fees to Gemma Brushett, who works for a finance firm in the City of London and runs yoga retreats. […]

Judge Shanti Mauger, at Central London county court, said: “Cyclists must be prepared at all times for people to behave in unexpected ways.”

{ Guardian | Continue reading }

‘Real knowledge is to know the extent of one’s ignorance.’ — Confucius

39.jpg

The mainstream sciences are experiencing a revolution of methodology. This revolution was inspired, in part, by the realization that a surprising number of findings in the bioscientific literature could not be replicated or reproduced by independent laboratories and were likely false discoveries.

In response – as reflected in a 2018 report of the National Academy of Sciences, Engineering, and Medicine – scientific norms and practices are rapidly moving towards openness. These reforms promise many enhancements to the scientific process, notably improved efficiency and reliability of findings.

Changes are also underway in the forensic sciences (although they have recently hit substantial political roadblocks). After years of legal-scientific criticism and several reports from peak scientific bodies, efforts are underway to establish the validity of several forensic practices and ensure forensic scientists perform and present their work in a scientifically valid way.

In this article, the authors suggest that open science reforms are distinctively suited to addressing the problems faced by forensic science. Openness comports with legal and criminal justice values, helping ensure expert forensic evidence is more reliable and susceptible to rational evaluation by the trier of fact.

{ LawArXiv | Continue reading }

transparency in lightbox { Jeff Wall, A Sunflower, 1995 }

At the end of the drama, as Faust and Mephistopheles flee the dungeon, a voice from heaven announces Gretchen’s salvation

210.jpg

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet very little empirical information exists on many aspects of misdemeanor prosecutions.

This Article provides the first quantitative look at appellate review in misdemeanor cases, nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts review no more than eight in 10,000 misdemeanor convictions, and disturb only one conviction or sentence out of every 10,000 misdemeanor judgments. This level of oversight is much lower than that for felony cases, for reasons we explain.

Additional findings include new information about the rate of felony trial court review of lower court misdemeanor cases, ratios of appeals to convictions for various misdemeanor-crime categories, detailed descriptive information about misdemeanor cases that reach state appellate courts, the results of a complete statistical analysis examining which features are significantly associated with a greater or lesser likelihood of success, including crime type, claim raised, judicial-selection method, and type of representation, and the first quantitative look at how misdemeanor appeals differ from felony appeals.

{ LawArXiv | Continue reading }

watercolor on paper { JMW Turner, A Wreck, possibly related to Longships Lighthouse, Land’s End, c.1834 }

previously { The Federalist Society — A 30-Year Plan to Transform the Courts }

A few million dollars doesn’t move the needle for me

211.jpg

If you know that a public company has done a bad thing, and no one else knows about it, how can you use that knowledge to make money? […]

This is a financial column, so we tend to focus on the financial-markets answers: You can short the company’s stock, or buy put options, or buy credit-default swaps. Then you can either sit back and let the market discover the bad thing, or you can bring it to the market’s attention, by announcing the bad thing and maybe also by taking some extra steps—generally suing or calling up a regulator—to get the ball rolling. This approach has some crucial advantages; most notably, if the company is very big and the thing is very bad, this is a good way to make a whole lot of money. But there are disadvantages too. You tend to need a lot of capital to make a lot of money doing this; if you don’t have enough money to make a big bet against the company, you’ll probably have to sell your idea to a hedge fund that does, and you’ll get only a portion of the upside. There are all the general financial risks of short selling: The stock could go up for reasons unrelated to the bad thing, “the market can remain irrational longer than you can remain solvent,” etc. There are the specific risks of noisy short selling: The company will accuse you of fraud, people won’t believe your revelations because you have money at stake, etc. There is also the risk of insider trading: Depending on how you came to know of the secret bad thing, there may be some legal risk to you from trading on it.

But those are just the markets-y ways to make money from misbehavior. There are also lots of lawyer-y ways. There are whistleblower programs that can reward you for telling regulators—particularly the Securities and Exchange Commission—about the bad thing. (The SEC’s program focuses on securities fraud, of course, but everything is securities fraud so you can be creative.) If you are a lawyer looking to profit from the bad thing, you can find a victim of the bad thing and sue for damages (and take a cut), or you can find holders of the company’s securities and sue for securities fraud (and take a bigger cut), because, again, everything is securities fraud. […]

The really long game, if you are a lawyer, is that you can become a federal prosecutor, investigate the company for misconduct, push it to hire a fancy law firm staffed with former federal prosecutors to conduct an expensive internal investigation, and enter into a non-prosecution agreement that requires the company to pay millions of dollars to an outside monitor who is also a former federal prosecutor. Do a few of these—expanding the scope of criminal liability for corporations, and normalizing the notion that corporations should resolve their criminal liability by hiring ex-prosecutors as monitors and investigators—and then leave for a private law firm where you get paid to do the investigations and the monitoring, while the next generation of prosecutors creates business for you. […]

Avenatti clearly did not do a good enough job of making the extortion look like something else to satisfy prosecutors. I don’t know if he did enough to satisfy a jury; perhaps we’ll find out. But he didn’t do nothing; the complaint contains some gestures in the direction of Avenatti being a legitimate lawyer with a legitimate case from a legitimate client trying to reach a legitimate settlement. He didn’t just ask for money; he demanded that Nike do an internal investigation and that he be in charge of it. (And be paid a lot.) It’s not pure, naked blackmail; it is a settlement negotiation that gets a little deeper into blackmail territory than you’d ideally like. But any settlement negotiation is, you know, “give me money or I will sue and that will be embarrassing for you,” so it is a matter of degrees.

{ Matt Levine/Bloomberg | Continue reading }

pigment ink on cotton paper { Aneta Grzeszykowska, Beauty Mask #10, 2017 }

‘Now this world is arranged as it had to be if it were to be capable of continuing with great difficulty to exist; if it were a little worse, it would be no longer capable of continuing to exist. […] and so this world itself is the worst of all possible worlds.’ –Schopenhauer

24.jpg

While we have come to expect bullshit from politicians, there is no shortage of judicial bullshit either. After discussing Harry Frankfurt’s famous description of bullshit, I illustrate possible instances of judicial bullshit in a wide range of bioethics cases, mostly at the Supreme Court. Along the way, we see judges bullshit for many reasons including the desire to keep precedents malleable, avoid line drawing, hide the arbitrariness of line drawing, sound important, be memorable, gloss over inconvenient facts, sound poetic, make it seem like their hands are tied, and appear to address profound questions without actually staking out provocative positions.

{ Arizona State Law Journal | Continue reading }

photo { Ramón Masats, Tomelloso, Ciudad Real, 1960 }

Dom Dom Dombdomb

I am Mr Trump’s longtime special counsel and I have proudly served in that role for more than a decade. In a private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to Ms Stephanie Clifford. [Note the ambiguous phrasing: “facilitate a payment.” This doesn’t necessarily mean Cohen ultimately funded the 130k payment to Clifford, just that he made it happen.] Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms Clifford, and neither reimbursed me for the payment, either directly or indirectly. [The fact that the Trump Organization and campaign didn’t reimburse Cohen doesn’t mean that members of the Trump family or campaign (or indeed anyone else) didn’t reimburse him, or give him the funds before he made the payment.] The payment to Ms Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone. [Note that Cohen doesn’t say whether or not Trump knew about the payment.]

{ Michael Cohen, annotated by Quartz | Continue reading }

no master how mustered, mind never mend

221.jpg

Brothers Vincenzo and Giacomo Barbato named their clothing brand “Steve Jobs” in 2012 after learning that Apple had not trademarked his name. […]

The Barbatos designed a logo that resembles Apple’s own, choosing the letter “J” with a bite taken out of the side. Apple, of course, sued the two brothers for using Jobs’ name and a logo that mimics the Apple logo. In 2014, the European Union’s Intellectual Property Office ruled in favor of the Barbatos and rejected Apple’s trademark opposition. […]

While the Barbatos currently produce bags, t-shirts, jeans, and other clothing and fashion items […] they plan to produce electronic devices under the Steve Jobs brand.

{ Mac Rumors | Continue reading }

art { Left: Ellsworth Kelly, Nine Squares, 1977 | Right: Damien Hirst, Myristyl Acetate, 2005 }

Testis unus testis nullus

31.jpg

Over the years, multiple people have been wrongfully convicted all over the world of which some had an alibi for the moment that the crime was committed to prove their innocence but were not believed. In the criminal justice system, there appears to be an assumption that innocent people can generate an accurate and believable alibi, which means that the alibi should be correct and be supported by strong evidence. For an innocent person, it can, however, be very difficult to provide such strong evidence as also appears in the cases of wrongfully convicted people where convincing evidence is often lacking. If people were not at the crime scene but elsewhere and they can remember where they were at that time and evidence to support their alibis, it is perhaps the best chance to prove their innocence. […]

The objective of the present study was to establish the base rate of alibis and its supportive evidence of non-offenders. Despite the fact that most non-offenders report an alibi, the vast majority of their alibis do not match the criteria of the perfect alibi by the police because strong evidence is lacking. The reported evidence is more often weak, and the evidence for their alibi differs depending on when the alleged crime was committed (i.e., during the morning, afternoon, evening, or night). In addition, an alibi without supportive evidence—the least believable alibi—is most likely to be expected during the night compared to other timeframes. An alibi supported with evidence is most likely to be expected on Saturday afternoon. The results show that the perfect alibi to which police detectives compare a suspect’s alibi is an illusion because only 7% of innocent people can present strong physical evidence (i.e., video recordings), and therefore, the base rate of alibis should be taken into account when evaluating alibis.

{ Journal of Investigative Psychology and Offender Profiling | Continue reading }

How say you by the French lord, Monsieur Le Bon?

24.jpg

Citigroup is suing AT&T for saying thanks to its own loyal customers […] Citigroup has trademarks on the phrases “thankyou” and “Citi thankyou,” as well as other variations of those terms.

{ Ars Technica | Continue reading }

‘I would sum up my fear about the future in one word: boring.’ —J.G. Ballard

215.jpg

In a patent dispute between two pharmaceutical giants arguing over who owns the royalty rights to a lucrative wound-dressing solution, […] three judges coined a new legal definition of “one”. […]

The ConvaTec patent covered any salt solution “between 1 per cent and 25 per cent of the total volume of treatment”. However, Smith & Nephew devised a competing product that used 0.77 per cent concentration, bypassing, or so it believed, the ConvaTec patent. […]

Their lordships concluded that “one” includes anything greater or equal to 0.5 and less than 1.5  – much to the chagrin of Smith & Nephew.

{ The Independent | Continue reading }