Category Archives: Law: Everything Else

Judge Jordan Nominated for 11th Circuit

President Obama announced today that he will nominate Judge Adalberto José Jordán, one of the leading lights of the local federal bench, to the 11th Circuit Court of Appeals. Among his other virtues, Judge Jordan graduated from UM Law in 1987, and clerked for Judge Thomas A. Clark of the 11th Circuit and then for Supreme Court Sandra Day O’Connor of the Supreme Court of the United States. Judge Jordan has been on the Southern District of Florida since 1999, and regularly teaches Federal Courts at UM.

This is a great appointment and I cannot imagine that it will be controversial. Judge Jordan is a real star. I hope the Senate actually gets around to confirming him — they’re pretty slow up there.

Posted in Law: Everything Else | 1 Comment

May 5: President Obama Announces Intent to Nominate Stephen Higginson to Serve on 5th Circuit

I don’t know how I missed this, but back on May 5th, President Obama announced his intent to nominate Stephen Higginson to the United States Court of Appeals for the Fifth Circuit.

“Stephen Higginson is a distinguished candidate for the Court of Appeals for the Fifth Circuit,” President Obama said. “Both his legal and academic credentials are impressive and his commitment to judicial integrity is unwavering. I am confident he will serve the American people with distinction.”

Stephen Higginson was born in Boston, Massachusetts. He attended Harvard College, where he received his A.B., summa cum laude, in 1983. After graduating from Harvard, Higginson attended Cambridge University in England, where he was a Harvard Scholar, earning a Masters in Philosophy in 1984. He then attended Yale Law School and obtained his J.D. in 1987. While in law school, Higginson was Editor-in-Chief of the Yale Law Journal.

After graduating from Yale Law School, Higginson served as a law clerk to the Honorable Patricia M. Wald of the United States Court of Appeals for the District of Columbia. The following year, from 1988 to 1989, Higginson served as a law clerk to the Honorable Byron R. White of the Supreme Court of the United States. He has been an Assistant United States Attorney since 1989, when he joined the Criminal Division in the District of Massachusetts. Since 1993, Higginson has served as an Assistant United States Attorney in the Eastern District of Louisiana, where he became the chief of appeals in 1995. As chief of appeals, Higginson has personally handled or supervised all criminal and civil appeals in the District, editing or writing more than 100 appellate briefs, and presenting numerous oral arguments before the United States Court of Appeals for the Fifth Circuit. Higginson has received the Department of Justice’s awards for superior and outstanding performance as a federal prosecutor. From 1997 to 1998, he served a six-month detail with the Department of State, working as deputy director of special projects for the Presidential Rule of Law Initiative.

Since 2004, Higginson has worked part-time in the United States Attorney’s Office, continuing to supervise the appellate section. That same year, he joined the full-time faculty at Loyola University New Orleans College of Law, becoming an Associate Professor of Law. Higginson teaches subjects including constitutional law, evidence, and criminal law.

I’ve known Steve since law school, where many people would have guessed he’d end up as a judge. He’ll be great — if the Senate ever confirms him.

Posted in Law: Everything Else | Leave a comment

Saudi Arabia Struggles to Join the 20th Century — Or Maybe the 18th

Early 20th Century:

Philippines – Pay Cut Rejected for Maids in Saudi Arabia

The Philippines has rejected an appeal from Saudi Arabia to cut by half a minimum-wage requirement for Filipino maids working in Saudi Arabia and will not be sending new domestic helpers until the dispute is resolved. Labor Secretary Rosalinda Baldoz said Friday that the Saudi government wanted the minimum monthly salary for Filipino maids lowered to $200 from $400.

18th Century — or earlier:

Female Saudi doctor appeals to top court for right to choose a husband.

Her father and brothers demanded that she marry a cousin, and, she says, beat her when she refused. For the past five years, she has lived in a shelter for battered women.

“I’m a surgeon. I’m responsible for people’s lives,” says Samia, now in her 40s. “I want to be responsible for my own life.”

So far, no dice. Oh, and her family gets her salary as a doctor meanwhile, which may be part of the reason they won’t let her marry who she likes.

Posted in Law: Everything Else | 1 Comment

Statutory Interpretation for Biologists

Tongue no doubt firmly in cheek, a biologist suggests that the Florida legislature accidentally legislated celibacy this week.

Among (many) other things, the statute in question says that

A person may not:

Knowingly engage in any sexual conduct or sexual contact with an animal;

(In its infinite wisdom, the Florida Legislature had never before the current moment gotten around to legislating on this important subject.)

People are animals, hence sex with humans must be banned, right?

Any blog post that makes fun of this year’s unusually dire Florida Legislature is OK with me, but I have to put in a few words for the law here, even at the price of spoiling the joke.

Yes, it’s time to roll out Nix v. Heddon, 149 U.S. 304 (1893), in which the Supreme Court of the United States had to decide whether at tomato is a fruit or a vegetable for purposes of the Tariff Act of March 3, 1883. There were good arguments for ‘fruit': after all, to a biologist, a tomato is clearly a fruit. But the Supreme Court made short work of that claim:

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

In short, in figuring out legislative intent in the absence of a definition in the statute itself, courts look to the ordinary, common, meaning of words and not their scientific meaning unless something in the context suggests otherwise. In SB 344, it’s pretty clear that when the Florida legislature — yes, even this year’s model — says “animals” it is not referring to us nor even to itself.

Posted in Florida, Law: Everything Else, Law: The Supremes | 6 Comments

Does This Mean What I Think It Means?

I’m looking at the detailed terms and conditions for the three-year “notebook protection with ADH” plan offered by CDW on a laptop which in fact has a manufacturers’ three-year warranty for defects in workmanship.

The attraction of the extra warranty is that it purports to offer some protection from accidents.

Coverage begins on the date of product purchase and is inclusive of the manufacturer’s warranty, Coverage includes Accidental Damage from Handling, 100% of shipping cost reimbursement for depot service if required, Coverage provided by Service Net.

Since this is a gift for an accident-prone person, that sounds attractive.

But, hey, I’m a lawyer, right, so I’m going to read the detailed terms and conditions. And in there I find this amazing paragraph:

3. ACCIDENTAL DAMAGE FROM HANDLING (ADH): ADH pertains to You if listed on the reverse side of this Contract. Your Product is protected against accidental damage from handling. ADH will end prior to the expiration date when We have, as a result of service provided to You, replaced Your Product or incurred costs under this plan and all other coverage equal to the original purchase price of Your Product (as indicated on your invoice). ADH only covers operational or mechanical failure caused by an accident from handling and does not include protection against normal wear and tear, theft, misplacement, negligence, viruses, reckless, abusive, willful or intentional conduct associated with handling and use of the Product, cosmetic damage and/or other damage that does not affect the unit functionality, damage caused during shipment between You and Our service providers and any other limitations listed in the Limitations of Coverage section. Any resultant damage from this type of treatment is NOT covered by this ADH program. The use of this coverage requires an explanation of where and when the accident occurred as well as a detailed description of the actual event. Failure to provide this information will result in claim denial.

I’ve read this three times now, and I’m having some trouble figuring out what sort of accident this covers. What would be an “operational or mechanical failure caused by an accident from handling” that is other than the excluded “normal wear and tear, theft, misplacement, negligence, viruses, reckless, abusive, willful or intentional conduct”? The exclusions seem to cover both negligence and willfulness. What’s left?

Whatever it is, they seem to think people will pay $152 for it.

Posted in Law: Everything Else, Shopping | 7 Comments

Could it Really Be that You HAVE to be Stupid to be a Cop?

I very much hope that this news brief oversimplifies the issues in some way, because I would hate to think that — even if it’s legal — a police department was intentionally trying to avoid hiring smart applicants.

A Federal judge has dismissed a lawsuit by a man who was barred from the New London police force because he scored too high on an intelligence test.

In a ruling made public on Tuesday, Judge Peter C. Dorsey of the United States District Court in New Haven agreed that the plaintiff, Robert Jordan, was denied an opportunity to interview for a police job because of his high test scores. But he said that that did not mean Mr. Jordan was a victim of discrimination.

Judge Dorsey ruled that Mr. Jordan was not denied equal protection because the city of New London applied the same standard to everyone: anyone who scored too high was rejected.

via Judge Rules That Police Can Bar High I.Q. Scores.

And, yes, I do know there is more to smarts than IQ scores. But still.

PS. A little research suggests that this might actually be true. For example, Jordan v. City of New London, 2000 U.S. App. Lexis 22195 (August 23, 2000):

On March 16, 1996, plaintiff Robert Jordan and 500 other applicants underwent a written screening process conducted by the Law Enforcement Council of Southeastern Connecticut, Inc. (“LEC”), a coalition of fourteen cities and towns, for a position as a police officer. That testing process operated as an initial screen for participating police departments. The testing material included the Wonderlic Personnel Test and Scholastic Level Exam (“WPT”), which purports to measure cognitive ability. An accompanying manual listed recommended scores for various professions and cautioned that because overqualified candidates may soon become bored with unchallenging work and quit, “simply hiring the highest scoring employee can be self-defeating.” Jordan scored a 33 on the WPT, above the median for any listed occupation, and well over the normative median of 21 suggested for a police patrol officer.

In the fall of 1996, Jordan learned that the city of New London was interviewing candidates. Upon further inquiry, however, he learned from assistant city manager Keith Harrigan that he would not be interviewed because he “didn’t fit the profile.” Plaintiff, who was 46 years old, suspected age discrimination and filed an administrative complaint with the Connecticut Commission on Human Rights and Opportunities. The city responded that it removed Jordan from consideration because he scored a 33 on the WPT, and that to prevent frequent job turnover caused by hiring overqualified applicants the city only interviewed candidates who scored between 20 and 27.

The court is probably correct on the law, unless someone is going to try suggest that there’s some connection between IQ and a protected class (race, religion, sex, national origin, over-40-ness). But what a policy!

How long before some defense lawyer tries to use this policy to impeach a police witness?

Posted in Law: Everything Else | 3 Comments’s Amazing Contractual Terms

I mistyped the address for (I left off the final letter), and got redirected to, which managed to convince me for a considerable period of time that it was running a survey for YouTube. It wasn’t until I dug into the unbelievably one-sided contract terms that I got suspicious – it didn’t sound like Google could be this evil. And (thanks to searching on Google) I confirmed that it wasn’t.

Not only is the way they reel you in borderline deceptive — I think YouTube would have a good shot at a trademark claim since I was genuinely deceived for some time and YouTube would very likely win a UDRP action — but the contract really is an amazing piece of draftsmanship: so one-sided as to likely not be enforceable (EDIT: against the user; the user could have various claims against the company. So could the FTC.).

Here’s what you see at first:

You’ve been selected from the Miami region to take part in our annual visitor survey.
This will only take 30 seconds of your time and will enhance user experience.
Upon completion you will have the opportunity to get a free Macbook Air, Sony Vaio, or Vizio HDTV.

Even at the outset I think “get” is a bit tacky for what I presume is going to be a minuscule chance to win a drawing sometime in the far future, but hey, it’s marketing. The questions were gender, age group, number of videos watched online a week (4-10), and how much I hate ads in videos (a lot). Then on to to the register for the sweepstakes part of the show. I “chose” the flashy laptop from the option. The next screen invites me to give my email and cellphone number under a headline saying

Thank you for your response.
If you are interested, this is your opportunity to
Get your free gift

There’s that “get” again. Nothing yet about odds. Of course, I’m not going to give my phone number without seeing the Privacy Policy. And it turns out to be dire.

First, they can change it retroactively any time:

[The Company] reserves the right to revise this Privacy Policy at any time simply by posting such revision, so we encourage you to review it periodically.

Second, if I give them a cellphone number (what if I don’t have a cell? presumably I’ve violated the terms of the offer?) they will spam me with ads.

By completing and submitting a registration form you are consenting to receive SMS, wireless or other mobile offering to your cell phone. You understand that your wireless carrier’s standard charges and rates apply to these messages. To unsubscribe or discontinue SMS messages, send “STOP”, “END”, or “QUIT” to the SMS text message you have received and the SMS sender will unsubscribe you from further SMS messages within 10 days of receiving such request.

Since I don’t have a texting plan, I’ll pay for each of them until I tell them to stop. Even though they have computers, it will take the squirrel in the cage in the back room ten days to do the data entry.

Third, they will sell my data to advertisers:

When you answer “yes” or “no” to a survey question, some or all of the information that you submitted during the website registration process will be transferred to advertisers that we believe may be of interest to you without providing you with another opportunity to review the information.

When you select “yes” next to an offer, we will transfer some or all of the information that you submitted during the website registration process to the applicable advertiser without providing you with another opportunity to review the information either with our own technology or a 3rd party proxy.

Surely, by saying I want the laptop, they will say I’ve agreed to the above. And even if not, they’ve still got me:

By completing and submitting a Company registration form, you are consenting to receive marketing communications from the Company and its third party marketing partners. If, after you have shared your information with the Company, you decide that you do not want to receive marketing communications from the Company and its third party marketing partners, you can discontinue the communications and following the opt-out instructions. If you have registered or submitted information under more than one e-mail account, you must submit separate unsubscribe requests for each account.

Fourth, if all that wasn’t enough, there is a separate document called Terms on the first page of the survey, and “Terms and Conditions” at the end of the privacy policy. It turns out this isn’t a lottery at all.

It purports to be one heck of webwrap contract:

This promotion is conducted exclusively by, and is subject to participation terms and conditions. Receipt of your item requires compliance with offer terms, including: age and residency requirements; registration with valid e-mail address, shipping address and phone number; completion of user survey and sponsor offers. Upon completion of all requirements, we will ship your incentive gift to your verified shipping address. Fulfillment may be delayed based on availability.

Oh-oh: “completion of user survey and sponsor offers”. Typically that means jumping through a nearly endless series of hoops. If you find a single question too intrusive – no prize. If you miss a single complex detail designed to make you fail on a tight deadline – no prize. If you can’t prove you jumped through all the hoops – no prize.

By now I’m really puzzled: I expected better from Google. (And indeed, this turns out to have nothing to do with Google, so that’s one good thing about this.)

But let’s soldier on through the Terms & Conditions and see what they say.

It doesn’t start well:


Leaving aside that webwrap contracts are almost certainly not enforceable if the user isn’t forced to read and acknowledge them, taken literally this language means I can’t even read the Terms & Conditions unless I agree with them. Or that by reading them, I’m agreeing to them. Sloppy and mean. And not founded in law.

The next paragraphs is no better. It seems I’m acknowledging that I love them:

By registering on this website, you are certifying you have read, understand and agree to these Terms & Conditions, as well as our Privacy Policy. Our Privacy Policy can be accessed and reviewed here. You also acknowledge that this website provides valuable rewards to consumers who respond to and complete the specified number of advertiser offers and that you are accessing this website solely for this purpose.

Note the ominous but undefined “specified number of advertiser offers” they intend to try to make customers sign on to.

But don’t worry: if it looks like you might win a valuable prize, reserves the right to give you a single piece of bubblegum instead: reserves the right, in its sole discretion, to revise these Terms & Conditions at any time, for any reason, without notice. also reserves the right, in its sole discretion, to change the methods through which future rewards are earned. This may include changing the approval requirements necessary to receive future rewards by increasing or decreasing the number of advertiser offers that must be completed to qualify, and adding or decreasing the amount of steps to confirm that you have a legitimate account. may also add or remove any product or service listed as a reward at any time. If replaces a reward, the new reward may not be of equal value.

Note that by now we don’t even have a contract, since they haven’t actually promised anything at all. But if you don’t like it, well, you’ve violated the terms of service:

Please check these Terms & Conditions periodically for changes. Your use of this website following any such modification constitutes your agreement to follow and be bound by the Terms & Conditions as modified. The last date these Terms & Conditions were revised is set forth below. IF YOU BREACH ANY OF THESE TERMS & CONDITIONS YOUR RIGHT TO USE THIS WEBSITE WILL TERMINATE AND YOUR ACCOUNT WILL BE DISQUALIFIED.

(Bold in original)

And it gets worse. The “rewards” are not actually rewards.

To qualify for the reward on this particular website, you may be required to complete reward offers from the Silver, Gold, and Platinum Offer Pages. Please refer to the requirements of each reward carefully.

*Please note that available reward offers will vary. Some reward offers require a purchase. Credit card offers may require you to activate the card by making a purchase, transferring a balance or taking a cash advance.

Got that? It’s going to be a very bad deal. But you can’t back out when you want to:

(1.) Your account/reward eligibility will expire 60 days from the date you register on this website. Upon expiration, you will no longer be eligible to receive the reward.

(2.) There is no way to cancel an account. If you no longer wish to remain a part of this website, you should refrain from accessing your account.

Yes a very very bad deal indeed. A couple of pages into the (very long) document, we finally get some hints of what is in store:
Continue reading

Posted in Law: Everything Else, Law: Internet Law, Law: Privacy | 5 Comments