Headnote of the Week

That no straight thinking person would believe that a skin cream would actually rejuvenate the skin as advertised would not eliminate element of deception in the advertising, since the act prohibiting false advertising was not made for the protection of experts but for the general public which includes the ignorant, the unthinking, and the credulous.
Charles of the Ritz Distributors Corp. v. Fed. Trade Comm'n, 143 F.2d 676 (2d Cir. 1944)

Headnote of the Week

Damn hippies:

Best interests of seven-year-old boy required that his 60-year-old maternal grandparents, who had been asked by father to take temporary charge of child after mother's death two years before and who had provided "stable, dependable, conventional, middle-class, middlewest background", be awarded permanent custody as against father who had since remarried, in view of likelihood of seriously disrupting and disturbing effect upon child's development which could result from child's return to "unstable, unconventional, arty, Bohemian, and probably intellectually stimulating" household of father. Painter v. Bannister, 140 N.W.2d 152 (Iowa 1966

Headnote of the Week

In a prosecution for seduction, evidence that the prosecutrix allowed men to kiss her good-night and hug her does not indicate a want of chastity on her part to such an extent as to overcome a verdict of guilty.
State v. McIntire, 56 N.W. 419 (Iowa 1893)

Headnote of the Week

True Story.

Courts will take judicial notice that whisky is intoxicating. State ex rel. Springer v. Bliss, 185 P.2d 220 (Okla. 1947)

Headnote of the Week

This week's headnote comes from Paul Clement, the former Solicitor General who is defending the Defense of Marriage Act (DOMA), which defines marriage as a legal union between one man and one woman and says that no state (or other political subdivision within the United States) is required to recognize a same-sex marriage in another state (i.e. if a gay couple is married in Massachusetts, Arkansas does not have to recognize that marriage if the couple moves to Arkansas).

Paul Clement used to be a partner at the law firm King & Spalding.  However, King & Spalding didn't want to get hate mail from gay groups be associated with defending an unpopular bill and so Paul Clement quit today and joined another law firm.  In his resignation letter, he said:

Amen.

Headnote of the Week

This week I decided to do something different for the Headnote of the Week.  Instead of giving you a quote from a real case, I wanted to give readers a sense of what I read on a regular basis.  What follows is a quote from one party's brief in a case I am working on.  Please keep in mind that this is written by a private lawyer (i.e. being paid) for a criminal defendant facing serious jail time.  I have omitted nothing (i.e. the lawyer cited no cases to support his argument).  The brief was written in March, though, so maybe the lawyer had March Madness on the brain...

"Without a defense expert to contravert [sic] or at least contest the conclusions reached by the prosecution's expert witnesses . . . [this case] is akin to showing up to play a game of basketball with only four players instead of five players.  The result of such a game, all things being equal, is easy to predict.  The same is true with a trial. If the other side produces an expert witness, it is ineffective assistance of counsel for a defense attorney not to produce a defense expert on the same subject matter to contest or challenge the conclusions reached by the government's expert witness.  This is what occurred in this case, and this is why there was ineffective assistance of counsel as regards this issue."

Next They're Going to Want to Vote...

Just kidding.

A wife is not required to spend all her time in household duties and may engage in work outside the home, and, where she does so, her earnings belong to her. Mullins v. Riopel, 76 N.E.2d 633 (Mass. 1948)

Headnote of the Week

I was pleased to learn this week that my headnotes of the week have at least one fan out there...

The privilege against self-incrimination does not protect a criminal suspect from being compelled to exhibit physical characteristics, for example, to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice; it is the contents of the suspect's own mind that implicates the Self-Incrimination Clause. United States v. Greer, 631 F.3d 608 (2d Cir. Feb. 4, 2011)

Headnote of the Week

Location of a person's garbage, standing alone, does not establish whether a search of the garbage was reasonable; rather, the analysis must include an examination of whether the person manifested a subjective expectation of privacy in the trash container and whether that expectation of privacy in the garbage is objectively reasonable.
State v. Fisher, 154 P.3d 455 (Kan. 2007)

Headnote of the Week

This one is just kind of funny (to law dorks).  Non lawyers probably don't know Rule 11, which may diminish the humor.  Briefly, Rule 11(b) of the Federal Rules of Civil Procedure states:

By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Basically, an attorney is only supposed to file a law suit in good faith and on reasonable belief in the merits of the claim (bullshit slip and fall cases, anyone?).  Anyway, here is the headnote:

Rule 11's admonition that every lawyer do necessary work to find law before filing brief applies even to lawyers who have two varsity letters in a collision sport and who were presidents of their fraternities.  Chambers v. Am. Trans Air, Inc., 17 F.3d 998 (7th Cir. 1994)

Headnote of the Week

It is a matter of common knowledge that usually there is no love like a mother's love.
Perkins v. Perkins, 293 S.W.2d 889 (Ark. 1956)

Headnote of the Week

For those paying attention in Egypt...

In order to preserve order when unpopular speech disrupts it, the police may not silence the rabble-rousing speaker, but must permit the speech and control the crowd; there is no heckler's veto. Ovadal v. City of Madison, Wisconsin, 416 F.3d 531 (7th Cir. 2005)

Headnote of the Week

I found out this week why I have so many family law cases.  It's not really complicated, but without knowing the context of the courts, it's difficult to explain.  Basically, each judge has about 50-80 cases at a given time (remember, 5 judges on the Intermediate Court of Appeals means the Court has anywhere from 300-400 cases at a given time...all the time).  Anyway, there was some shifting among the judges because one judge on the ICA was nominated/confirmed to the Hawaii Supreme Court, another judge moved into the Chief Judge's role on the ICA, and new judges were nominated/confirmed to sit on the ICA.

Now, when all that happened, the former Chief Judge (who went to the Supreme Court) did not finish all his cases.  As I've bitched about a dozen times explained before, family law cases suck.  No one wants to work on them.  Anyway, since the former Chief Judge didn't finish all his family law cases, the new judges to the Court got stuck with them.  This means that our entire docket sheet right now is filled with backlogged family law cases.  I worked on a case recently that has been sitting here since 2006!

Since my eyes have been going numb over facebook, gchat, and planning vacations family law cases, today's headnote makes perfect sense.  Also, it should make sense to anyone who has ever been divorced.  Remember, these headnotes are quotes from real cases:

Just and equitable division of property in divorce action is just as likely not to be equal.
Root v. Root, 65 P.3d 41 (Wyo. 2003)

Headnote of the Week

This week's headnote is topically relevant to something near and dear to my heart: the sad state of the American legal profession.  Specifically, the abysmal record of law schools scamming students into paying astronomical tuition rates, allowing them to incur hundreds of thousands of dollars in debt, with no real way to pay them back. Plenty of articles have been written about the fact that there are essentially no standards in place to force law schools to be accountable for their employment statistics.  In other words, students go to law school with dreams of making the "big bucks" and yet they are going to law schools that offer basically no hope of getting one of these dream jobs. Anyway, it has been suggested that law schools owe a duty of full disclosure to tell prospective students exactly what they're getting into before they sign up for 3 years and $120,000+ in student loans.  The New York Times wrote an amazing article the other day that touches on something anyone familiar with lawyers or law students already knows: law students are getting themselves into serious debt problems, with no plan for how to pay the debts back. The New York Times article profiles a number of recent graduates who are looking at a difficult legal employment environment. You can read the entire article here (and I recommend that you do because mark my words, student loans will be the next big bailout).  It has gotten so bad, in fact, that there have been many efforts to force law schools to disclose their actual employment statistics.  Not just "x number of students are employed/unemployed."  See, right now, schools count as "employed" anyone with a job, even if non-law related. Yep, that's right, to pad their numbers, they count as employed their former students who are nannies or mcdonald's managers. Spear-heading this effort is Law School Transparency.

But good luck. So far, only one school has agreed to comply with the request to release their information.  And today's Headnote of the Week may explain why:

Under Ohio law, law school did not owe its students a duty of good faith and fair dealing.
Valente v. University of Dayton, 689 F. Supp. 2d 910 (S.D. Ohio 2010)

Headnote of the Week

Normally I wait until Friday (or Thursday on a furlough week) to post the "Headnote of the Week" but this one was too good to hold until then.  Not only does this bring me back to studying for the bar exam and the "wild animals" rule, but I always laugh at the prospect of people who think it's a good idea to keep wild animals as pets (Roy, anyone?).

Under Illinois law, a person who keeps a tiger in his backyard is strictly liable for the injuries caused by it.
Doe v. City of Chicago, 360 F.3d 667 (7th Cir. 2004)

Headnote of the Week

A writer of parody must be wary as his shafts may miss the mark, be cruel without purpose, and inflict real hurt where only laughter was intended.
Salomone v. Macmillan Pub. Co., Inc., 411 N.Y.S.2d 105 (N.Y. Sup. Ct. 1978)

Headnote of the Week

A drunken man is as much entitled to a safe toilet as a sober one, and much more in need of it.
Cooper v. Nat'l R.R. Passenger Corp., 119 Cal. Rptr. 541 (Cal. Ct. App. 1975)

Headnote of the Week

The label "mayo 7," as applied to an imitation, low calorie mayonnaise, would not create likelihood of confusion with the Mayo Clinic, Mayo Foundation or the Mayo Brothers, either by suggesting the Clinic as the source of the mayonnaise or by suggesting approval of the low calorie product by the Clinic, particularly in light of fact that "mayo" is a recognized slang expression for "mayonnaise."  Frederick Gash, Inc. v. Mayo Clinic, 461 F.2d 1395 (C.C.P.A. 1972)

Headnote of the Week

Since this is, in theory, a law-related blog, I came up with a new, recurring (and short) post: Headnotes of the Week.  A headnote is a brief summary of a particular point of law that is added to the text of a court decision to aid readers in locating discussion of a legal issue in an opinion. As the term implies, headnotes appear at the beginning of the published opinion. Since I do so much researching, I often come across things courts have said that are ridiculous, funny, or just interesting.  At the end of every week, I'll post the one I like the most from that week.

This week:

District court could take judicial notice that Thanksgiving fell on November 25, 2004. 
Roberts v. Jones, 390 F. Supp. 2d 1333 (M.D. Ga. 2005)