law

Very unpleasant. Noble art of self-pretence. Personally, I detest action.

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We live in an image society. Since the turn of the 20th century if not earlier, Americans have been awash in a sea of images – in advertisements, in newspapers and magazines, on billboards, throughout the visual landscape. We are highly attuned to looks, first impressions and surface appearances, and perhaps no image is more seductive to us than our own personal image. In 1962, the cultural historian Daniel Boorstin observed that when people talked about themselves, they talked about their images. If the flourishing industries of image management — fashion, cosmetics, self-help — are any indication, we are indeed deeply concerned with our looks, reputations, and the impressions that we make. For over a hundred years, social relations and conceptions of personal identity have revolved around the creation, projection, and manipulation of images. […]

In what follows, I want to contemplate one legal consequence of the advent of the image society: the evolution of an area of law that I describe as the tort law of personal image. By the 1950s, a body of tort law – principally the privacy, defamation, publicity, and emotional distress torts4 — had developed to protect a right to control one’s own image, and to be compensated for emotional and dignitary harms caused by egregious and unwarranted interference with one’s self-presentation and public identity. The law of image gave rise to the phenomenon of the personal image lawsuit, in which individuals sued to vindicate or redress their image rights. By the postwar era, such lawsuits had become an established feature of the sociolegal landscape, occupying not only a prominent place on court dockets but also in the popular imagination. The growth in personal image litigation over the course of the 20th century was driven by Americans’ increasing sense of entitlement to their personal images. A confluence of social forces led individuals to cultivate a sense of possessiveness and protectiveness towards their images, which was legitimated and enhanced by the law.

This article offers a broad overview of the development of the modern “image torts” and the phenomenon of personal image litigation.

{ Samantha Barbas/SSRN | Continue reading }

I’ll make death love me

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Verizon is arguing before the Court of Appeals for the D.C. Circuit that broadband providers have a right to decide what they transmit online. […] According to Verizon’s argument:

In performing these functions [providing the transmission of speech from Point A to Point B], broadband providers possess ‘editorial discretion.’

Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others.
In effect, Verizon claims that by transmitting bits – providing Internet access – it gains the rights of a newspaper like the Washington Post or the New York Times. This assertion has no basis in constitutional law, and in fact repudiates many positions taken by Verizon before Congress, courts and the FCC over the years.

[…]

“Verizon and its predecessors have argued exactly to the contrary time after time — including when they were fighting for open access to cable companies’ wires a decade ago and when they have claimed immunity from liability based on their status as a transmissions provider for the content they carry,” said Tyrone Brown, who served as an FCC Commissioner from 1977-1981.

{ Roosevelt Institute | Continue reading }

As the set of forces that resist

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Singapore plans to restrict advertising for “unhealthy” food and drink aimed at children, as countries across Asia grow increasingly concerned about obesity rates. […]

About 11 per cent of adults in the island nation of 5.3m are considered obese, compared with an OECD average of 17 per cent and a US figure of more than 35 per cent. […]

About 60 per cent of Singaporeans eat out four times a week or more, mostly in “hawker stalls” and food courts scattered across the city state that sell cheap dishes based on rice and noodles that are often heavy on cooking oil. Fast food outlets such as McDonald’s and KFC are also popular. […]

The government has been working with food stall owners to cut the amount of oil and salt used in cooking and persuade them to use brown rice, considered healthier than polished white rice.

It has also introduced a system of early morning “mall walks” designed to encourage shoppers in Singapore’s numerous malls to exercise before stores open.

{ FT | Continue reading }

The real classical, you know. And blind too, poor fellow. Not twenty I’m sure he was.

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…scientific research with actual forensic examiners which [showed] that the *same* expert, examining the *same* evidence, can reach different conclusions when they are affected by bias. The problem was also demonstrated in fingerprinting and DNA, very robust forensic domains. […]

Fingerprinting, DNA, CCTV images, firearms, shoe and tire marks, document examination, and so on. When there is no instrument that says ‘match’ or ‘no-match’ and it is in the ‘eye of the beholder’ to make the judgement, then subjectivity comes in, and is open to cognitive bias. Essentially, forensic areas in which there are no objective criteria: where it is the forensic expert who compares visual patterns and determines if they are ‘sufficiently similar’ or ‘sufficiently consistent’. For example, whether two fingerprints were made by the same finger, whether two bullets were fired from the same gun, whether two signatures were made by the same person. Such determinations are governed by a variety of cognitive processes.

{ Itiel Dror/Mind Hacks | Continue reading }

The night that hides things from us

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In the summer of 2008, police arrived at a caravan in the seaside town of Aberporth, west Wales, to arrest Brian Thomas for the murder of his wife. The night before, in a vivid nightmare, Thomas believed he was fighting off an intruder in the caravan – perhaps one of the kids who had been disturbing his sleep by revving motorbikes outside. Instead, he was gradually strangling his wife to death. When he awoke, he made a 999 call, telling the operator he was stunned and horrified by what had happened, and unaware of having committed murder.

Crimes committed by sleeping individuals are mercifully rare. Yet they provide striking examples of the unnerving potential of the human unconscious. In turn, they illuminate how an emerging science of consciousness is poised to have a deep impact upon concepts of responsibility that are central to today’s legal system.

After a short trial, the prosecution withdrew the case against Thomas. Expert witnesses agreed that he suffered from a sleep disorder known as pavor nocturnus, or night terrors, which affects around one per cent of adults and six per cent of children.

[…]

It is commonplace to drive a car for long periods without paying much attention to steering or changing gear. According to Jonathan Schooler, professor of psychology at the University of California, Santa Barbara, ‘we are often startled by the discovery that our minds have wandered away from the situation at hand’. But if I am unconscious of my actions when I zone out, to what degree is it really ‘me’ doing the driving?

This question takes on a more urgent note when the lives of others are at stake. […] The driver appeared in Worcester Crown Court on charges of causing death by reckless driving. For the defence, a psychologist described to the court that ‘driving without awareness’ might occur following long, monotonous periods at the wheel. The jury was sufficiently convinced of his lack of conscious control to acquit on the basis of automatism.

The argument for a lack of consciousness here is much less straightforward than for someone who is asleep. In fact, the Court of Appeal said that the defence of automatism should not have been on the table in the first place, because a driver without ‘awareness’ still retains some control of the car. None the less, the grey area between being in control and aware on the one hand, and in control and unaware on the other, is clearly crucial for a legal notion of voluntary action.

If we accept automatism then we reduce the conscious individual to an unconscious machine. However, we should remember that all acts, whether consciously thought-out or reflexive and automatic, are the product of neural mechanisms.

{ aeon | Continue reading }

previously { Sometime after 2 A.M. one Sunday morning in May 1987, Kenneth James Parks drove 23 kilometers to the apartment of his wife’s parents. }

photo { Claudine Doury }

I walk up close, and I fo’, fo’ revolve ‘em


This article investigates how the law is perceived in hip-hop music. Lawyers solve concrete legal problems on basis of certain presuppositions about morality, legality and justice that are not always shared by non-lawyers. This is why a thriving part of academic scholarship deals with what we can learn about laymen’s perceptions of law from studying novels (law and literature) or other types of popular culture. This article offers an inventory and analysis of how the law is perceived in a representative sample of hip-hop lyrics from 5 US artists (Eminem, 50 Cent, Dr. Dre, Ludacris and Jay-Z) and 6 UK artists (Ms Dynamite, Dizzee Rascal, Plan B, Tinie Tempah, Professor Green and N-Dubz).

After a methodological part, the article identifies four principles of hip-hop law. First, criminal justice is based on the age-old adage of an eye for an eye, reflecting the desire to retaliate proportionately. Second, self-justice and self-government reign supreme in a hip-hop version of the law: instead of waiting for a presumably inaccurate community response, it is allowed to take the law into one’s own hands. Third, there is an overriding obligation to respect others within the hip-hop community: any form of ‘dissing’ will be severely punished. Finally, the law is seen as an instrument to be used to one’s advantage where possible, and to be ignored if not useful. All four principles can be related to a view of the law as a way to survive in the urban jungle.

{ SSRN | Continue reading }

Same style of beauty. Quick of him all the same. The stiff walk. True word spoken in jest.

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Courts are rarely asked to judge beauty. Such a subjective practice would normally be anathema to the ideal of objective legal standards. However, one area of federal law has a long tradition of explicitly requiring courts to make aesthetic decisions: the law of design. New designs may be protected as design patents, but only if they are “ornamental” in nature. As the U.S. Supreme Court has noted, “a design must present an aesthetically pleasing appearance…” This study uses empirical and experimental approaches to test the hypothesis that courts tend to favor more attractive patented designs over less attractive ones. It relies upon a data set that includes all design patent decisions from 1982 until 2010 in which a court made a final determination of validity or infringement, with every design patent at issue therein classified as valid or invalid and infringed or not infringed.

{ Journal of Intellectual Property Law/SSRN | Continue reading }

unrelated { The nuns in Catholic school taught us there was such a thing as sanctuary — the police cannot arrest a suspect in a church. Does this concept have a basis in law, or is it just a social custom that can be discarded on a whim? | The Straight Dope | full story }

photo { Helmut Newton, Van Cleef & Arpels Diamond Necklace X-Ray, 1979 }

Hence the best solution is to abolish patents entirely

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Our patent system is a mess. It’s a fount of expensive litigation that allows aging companies to linger around by bullying their more innovative competitors in court.

Critics have suggested plenty of reasonable reforms, from eliminating software patents to clamping down on ”trolls” who buy up patent portfolios only so they can file lawsuits. But do we need a more radical solution? Would we be better off without any patents at all?

That’s the striking suggestion from a Federal Reserve Bank of St. Louis working paper by Michele Boldrin and David Levine, professors at Washington University in St. Louis who argue that any patent system, no matter how well conceived, is bound to devolve into the kind of quagmire we’re dealing with today.

{ The Atlantic | Continue reading }

The U.S. federal government spent over $15 billion dollars in 2010 on the War on Drugs, at a rate of about $500 per second

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{ BIOswimmer robofish will be able to search and inspect the hulls of ships, and even the ocean floor should drug dealers attempt to ditch their contraband overboard. }

‘So are you sitting next to President Obama or may I join you?’ –Steven Amiri

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Nowhere in the United States do you have the right to credibly contract for a lifetime marital partnership.

Every state currently allows some form of “no fault” divorce - divorce not based on any wrongdoing of a party, but simply because the parties claim they don’t want to be married anymore. Even though the couple may “vow” to remain together until one of them dies, everyone knows these vows have no legal or real-world effect. The marital “contract” is not a contract at all.

Imagine a regular legal contract in which either party could end the agreement by saying he didn’t like it anymore. […]

Marriage once did have a legal effect - once married, parties could not divorce without a really good reason (physical cruelty, desertion, or adultery). Not coincidentally, marriages were much more likely to be reliable lifetime partnerships.

{ The View from Hell | Continue reading }

photo { Sam Haskins }

He had learned of the existence of a number computed to a relative degree of accuracy to be of such magnitude and of so many places, e.g., the 9th power of the 9th power of 9

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Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. Though casinos try to eject card counters or otherwise make their task more difficult, card counting is perfectly legal. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits. By contrast, if players use a “device” to help them count cards, like a calculator or smartphone, they have committed a serious crime.

I consider two potential justifications for anti-device legislation and find both lacking. The first is that, unlike natural card counting, device-assisted card counting requires cognitive enhancement. It makes card counting less natural and is unfair to casinos and should therefore be prohibited. The second potential justification relies on the privacy of our thoughts. On this view, natural card counting is a kind of cheating that warrants punishment. We do not criminalize natural card counting, however, because such laws would interfere with our thought privacy.

{ Adam J. Kolber /SSRN | Continue reading }

Dr Bloom is bisexually abnormal. He has recently escaped from Dr Eustace’s private asylum for demented gentlemen.

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A team of organizational behavior scientists recently examined nonharassing sexual behavior at work and its consequences for employees. They based their predictions on theories of power and gender and systematically examined men’s and women’s experiences of sexual behavior at work without imposing a positive or negative lens on the behavior. No prior studies had done this. The results show that workplace sexual behavior is enjoyed by some women and many men but it is generally associated with negative work-related and psychological outcomes, regardless of whether it is enjoyed or disliked.

Some may think it is “fun” or “good” or argue that sexual behavior at work is “typically harmless.” Others may suggest that sexual banter and sexual jokes may provide a fun and jovial atmosphere at work, or that workplace sexual flirtation can be flattering and lead to love or romance. But, these and other sexual behaviors in the workplace correlate with serious and substantial mental and psychological harm, even to those workers who said they enjoyed the experience. The researchers also found no evidence to support any positive evaluation of the effect of sexual behavior in the workplace or that it provides any benefit to employees who enjoy it.

{ Psycholawlogy | Continue reading }

related { Sexual Consent as Voluntary Agreement: Tales of ‘Seduction’ or Questions of Law? }