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The New York Times reports on some experienced plaintiffs’ lawyers who are hoping to rip big sums out of food companies alleging mislabeling; one is particularly outraged at a yogurt maker’s use of the “evaporated cane juice” euphemism for sugar. “The lawyers are looking to base damages on products’ sales…. [They] are being selective about where these suits are filed. Most have been filed in California, where consumer protection laws tend to favor plaintiffs.” The Times article, which reads somewhat like a press release for the lawyers involved, flatteringly describes them as “the lawyers who took on Big Tobacco,” though in fact a much larger group of lawyers played prominent roles in the Great Tobacco Robbery of 1998, and no evidence is presented that most of that larger group are taking any interest in the food-labeling campaign. What’s more, the many efforts by the plaintiff’s bar to identify a suitable Next Tobacco in the intervening years have been full of false starts and fizzles, including such mostly-abortive causes as mass litigation over alcohol, slavery reparations, HMOs, and dotcom failures.

The Times does draw the link to Proposition 37, the lawyer-sponsored measure I wrote about last week, which could open up a basis for rich new suits based on failure to correctly affix labeling tracking the sometimes-fine distinctions between genetically modified foodstuffs and all others. The text of Proposition 37 proposes to base minimum damages on the total sales volume of a product sold out of compliance, not on any measure of actual harm to consumers. Earlier on Don Barrett here and on Walter Umphrey and Provost Umphrey here and here.

Tweet Tags: California, eat drink and be merry, tobacco settlement

NYT on California food labeling suits is a post from Overlawyered - Chronicling the high cost of our legal system

ABC takes very seriously a complaint filed by a photographic model that Swedish automaker Volvo improperly degraded her image by allowing play-on-words copy into a promotion. She had signed broadly worded releases. [Good Morning America]

Tweet Tags: advertising, photography, Sweden

Volvo: “the ‘sexy Swedish models’ were cars, not escorts.” is a post from Overlawyered - Chronicling the high cost of our legal system

(Eugene Volokh)

I’m pleased to say that the New Mexico Supreme Court will hear the Willock v. Elane Photography case, which I’ve blogged about extensively. The court will now decide whether

(1) holding a wedding photographer liable for refusing to photograph a same-sex commitment ceremony violates New Mexico’s statutory ban on sexual orientation discrimination, and

(2) even if it does violate the statute, whether the photographer is nonetheless immune from punishment because

(a) requiring her to create photographs that she doesn’t want to create is a speech compulsion, in violation of the Free Speech Clause,

(b) she is entitled to an exemption under the federal or state Free Exercise Clauses, and

(c) she is entitled to an exemption under New Mexico’s Religious Freedom Restoration Act.

For more on all these theories, see this thread.

(David Bernstein)

From the Times of Israel comes the inspiring story of Judy Feld Carr: “For nearly three decades, Feld Carr [a musicologist and mother of six] single-handedly arranged the smuggling of more than 3,000 Jews out of Damascus, Aleppo and Qamishli to safety in Israel and America.”

UPDATE: I wonder if this article might be exaggerating Feld-Carr’s role in saving Syrian Jewry somewhat, given that in 1992 several thousand Syrian Jews left with the permission of the Assad government, on the condition that they go to the U.S. and not Israel.  This is not consistent with the article’s data stating that there were 4,600 Jews in Syria in the early 70s, and she rescued over 3,000 of them. Even if so, her story is a remarkable one.

(Eugene Volokh)

The L.A. Times reports:

Santa Monica’s Hotel Shangri-La and its owner discriminated against members of a Jewish organization two years ago when staff and security guards ordered the group to halt a poolside event, a jury determined Wednesday....

Members of the Friends of the Israel Defense Forces had gathered at the Art Deco hotel on the afternoon of July 11, 2010, and, shortly after their party got underway, were told to remove their literature and banners, get out of the pool and hot tub, and stop handing out T-shirts, according to court documents and testimony.

The employees said they were following the orders of hotel owner Tehmina Adaya, a Muslim woman of Pakistani descent....

[T]he jury heard deposition testimony of a former employee, Nathan Codrey, who said Adaya repeatedly used profanity as she insisted that the event stop.

“If my [family finds] out there’s a Jewish event here, they’re going to pull money from me immediately,” Adaya said, according to Codrey’s testimony, which was read by a stand-in because Codrey was out of state and could not be subpoenaed.

Adaya emphatically denied she had ordered the group to halt the event for fear that her family would cut off her financing....

The jury awarded $1.2 million in compensatory damages under the state public accommodations antidiscrimination law (the Unruh Civil Rights Act), plus $400,000 in punitive damages, according to the New York Times. I assume that the high damages award — rare in public accommodations cases — stems from the number of people who are affected.

It seems to me that business owners should have a right to decide which events to allow on their property. If a Pakistani Muslim (or anyone else) doesn’t want pro-Israeli-military events on her property, or if a Pole (or anyone else) doesn’t want pro-Soviet-Army events on his property, or if people don’t want to host pro- or anti-Scientology events or pro- or anti-Catholic events or pro- or anti-Muslim events, they should be free to do so. Public accommodation law in many places does ban discrimination against people based on race, religion, national origin, sex, and some other attributes; but it seems to me that property owners should be free to discriminate based on the message that an event is spreading, regardless of whether the message is tied to particular religious, racial, or ethnic groups. Under current law, bans on such private property owner discrimination based on a speaker’s message are likely constitutional (see PruneYard Shopping Center v. Robins and Rumsfeld v. FAIR); I just think they’re an unsound idea.

Naturally, if the deal has been made with event organizers, the hotel owners can’t then go back on the deal, but that should be a matter of normal breach of contract law, and not of antidiscrimination law (which would apply even if no deal had yet been made). One can debate whether private property owners should be free to discriminate even based on race, religion, and the like in choosing whom to let onto their property. But even if sufficiently pressing reasons justify such restrictions on property rights when it comes to discrimination based on people’s attributes, property owners should be free to discriminate based on what people are proposing to say on their property.

Interestingly, California is one of the few jurisdictions that seems to me to violate this principle, and to actually require property owners to allow speech on their property that they would rather exclude. That’s partly true because of cases such as the California Supreme Court decision in Robins v. Pruneyard Shopping Center, which required large shopping center owners — but basically just large shopping center owners, and not other property owners — to allow speakers on their property without regard to the content of their speech. (Coincidentally, Pruneyard also involved pro-Israel speakers.)

But it’s also partly true because California courts have interpreted the Unruh Civil Rights Act, which on its face seems to bar only discrimination based on race, religion, national origin, sex, and a few other attributes, as barring many other forms of discrimination, including based on occupation and other factors. And the ACLU used the law to sue a German restaurant owner who kicked out four diners wearing Nazi lapel pins — a claim that is potentially plausible under this broad interpretation of the statute. (The claim apparently never went to trial, apparently because the restaurant settled, though I’m not positive of that.)

In any case, based on press accounts it appears that all of this was largely ignored at trial, because the plaintiffs’ theory — which the jury accepted, based partly on Codrey’s testimony — was that the defendants ejected the event because its participants were Jewish, and not because of its political message. Still, this seemed like a good occasion to raise the matter.

UPDATE: I’ve added information about the punitive damages award to the post.

(David Bernstein)

An interesting essay by my colleague Adam Mossoff. The PatentlyO blog discusses it here.

(Eugene Volokh)

The Washington Post reports:

Russian authorities sentenced three feminist punk rockers to two years in prison Friday [on charges of hooliganism motivated by religious hatred] .... [T]he women [had] dashed into Moscow’s main cathedral to sing a song directed against Vladimir Putin .....

The video includes a brief clip of the performance.

Press accounts suggest that the prosecution and sentence were at least partly motivated by the anti-Putin message of the band; to the extent that this is so, the Russian government’s actions deserve the condemnation they’ve been getting.

At the same time, the performers’ actions strike me as a form of trespass: Though the church was open to the public at the time, it was pretty clearly open only to prayer or quiet observation, not for people to use it for their own loud musical performances. It strikes me as quite right to prosecute them for trespass, and a fairly egregious form of trespass at that: The people weren’t just (say) overstaying their welcome at a normal business establishment, but disrupting the quiet of a place that many other people were using for quiet contemplation.

I generally don’t like sentencing enhancements based on an offender’s anti-religious motivation, or on the religious nature of the institution against which the crime occurred, but even American law does often impose such enhancements. And a sentencing enhancement based on the trespass occurring at an institution being used by many people for quiet contemplation — a religious institution, a cemetery, a museum (especially a museum memorializing some solemn event), and so on — strikes me as proper.

So while two years strikes me as excessive, and likely motivated by the improper factor of trying to go after anti-government protesters, some nontrivial punishment for the trespass strikes me as quite appropriate. If people went into an American cathedral (or synagogue or mosque or cemetery or the Museum of Tolerance or some such), plugged in amplifiers, and put on their own performance without the permission of the management, I would hope that they would be prosecuted and sentenced to some meaningful punishment.

Note that I’d stand by this analysis even if the relevant cathedral was owned by the Russian government (something that likely wouldn’t occur in the U.S., given the specifically American rules about church-state separation). When a government owns such places that are devoted to quiet contemplation (plus speech by their management) — whether the places are churches, museums, memorials, or the like — I think it should have pretty broad authority to ban all unauthorized musical performances on their property. And my sense is that this is indeed likely to be the de facto policy in Russian churches, broadly understood by all visitors, even if the church authorities had not felt a reason to spell it out explicitly in the past.

Google and Oracle have just filed their lists of anyone they paid to write about their litigation.

On a quick scan, for Google: nobody: Neither Google nor its counsel has paid an author, journalist, commentator or blogger to report or comment on any issues in this case. And neither Google nor its counsel has been involved in any quid pro quo in exchange for coverage of or articles about the issues in this case. So they list nonprofits they donate to and folks who have won research awards.

For Oracle, though: they retained Florian Mueller of FOSSPatents, but they say he was not paid to write about the litigation: Oracle has retained Florian Mueller, author of the blog FOSS Patents, www.fosspatents.com, as a consultant on competition-related matters, especially relating to standards-essential patents. Oracle notes that Mr. Mueller fully disclosed his relationship with Oracle in a blog posting dated April 18, 2012; that Oracle retained him after he had begun writing about this case; and that he was not retained to write about the case. Mr. Mueller is a frequent critic of Oracle and was a leading advocate against Oracle's acquisition of Sun Microsystems, Inc., which led to Oracle's ownership of Sun's Java IP portfolio. A copy of Mr. Mueller's disclosure is attached as Exhibit A at 5.

(Eugene Volokh)

So report the AP and Agence France Press. The demonstration is being organized by (according to the AP) “the far-right ‘Citizens Movement — Pro Germany,” “under the slogan ‘Islam does not belong in Germany — stop Islamization.’”

According to the AFP, the court reasoned that “the cartoons were protected as ‘artistic freedom’ and could not legally be considered as abuse of a religious group. ‘Simply showing the Mohammed cartoons does not qualify as a call to hatred or violence against a specific segment of the population.’”

If anyone can point me to the caricatures involved, I’d love to see them. For our posts on the earlier Mohammed cartoon controversy, see here and especially here. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

When Harry Harrison recently died, it reminded a Groklaw member of the movie Soylent Green, which came out in 1973. One scene has a tablet, in the euthenasia scene with Edward G. Robinson. Except for the detail that it used a sylus in the scene, it is certainly thin and it's a rectangle with rounded corners and a minimalist simplicity. If you go to YouTube, you can see the tablet, and I have some screen shots of what the tablet looked like. Is this prior art, perchance, foreshadowing the iPad and/or Samsung's tablets? If not, it surely speaks to obviousness, doesn't it?

(Todd Zywicki)

Forbes has posted a reply by Joann Muller to the column I linked yesterday which asked whether GM was headed for bankruptcy again arguing that there are signs of hope.  With respect to her observations about GM’s growth in China, it appears that most of those cars will be manufactured in China as well.  I don’t have any problem with that, of course, but Paul Roderick Gregory challenges that it raises questions about recent outsourcing rhetoric and the wisdom of losing $25 billion to bail-out GM.

Senator Blutarsky responds to Muller here and adds a few more thoughts about GM’s future here.  He also argues here that even the estimate of a $25 billion loss on the auto bailouts is understated.  I have not tried to independently confirm his calculations or analysis (nor with Muller or Gregory), I here just pass it all on for the interested reader’s consideration.

(Todd Zywicki)

My colleague (and Green Bag Editor) Ross Davies has just posted a little article about a fascinating case of moral hazard in contracting involving, of all people, John Marshall.

The San Jose Mercury-News has an investigative series. Among the highlights: “At some point, this endless wasting of Danny Reed’s trust assets must stop,” said Judge Franklin Bondonno, throwing out $30,000 in fees billed to the special needs trust of a 37-year-old brain-damaged man, and regretting that he could not reach $145,000 previously billed. The “judge — in a highly unusual gesture — implored a higher court to overturn his decision.” Among recurring problems: “fee on fee” billing in which lawyers charge fees to persons under conservatorship for the legal effort expended in defending earlier fee bills. [editorial and links to articles in the series]

Tweet Tags: Bay Area, feeing frenzy, wills and trusts

Draining of disabled and elderly persons’ estates is a post from Overlawyered - Chronicling the high cost of our legal system

(Russell Korobkin)

Time magazine columnist and CNN talking head Fareed Zakaria was suspended last week for plagiarizing a paragraph from Jill LePore’s New Yorker article on gun control and today was reinstated after apologizing and having other work reviewed.  In case you haven’t seen, I reproduce for you LePore’s paragraph followed by the very similar paragraph Zakaria used in the middle of his Time magazine column. I have bolded Zakaria’s words when they repeat a string of LePore’s words, not including proper nouns and direct quotations.

Lepore:

As Adam Winkler, a constitutional-law scholar at U.C.L.A., demonstrates in a remarkably nuanced new book, “Gunfight: The Battle Over the Right to Bear Arms in America,” firearms have been regulated in the United States from the start. Laws banning the carrying of concealed weapons were passed in Kentucky and Louisiana in 1813, and other states soon followed: Indiana (1820), Tennessee and Virginia (1838), Alabama (1839), and Ohio (1859). Similar laws were passed in Texas, Florida, and Oklahoma. As the governor of Texas explained in 1893, the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding man.”

Zakaria:

Adam Winkler, a professor of constitutional law at UCLA, documents the actual history in Gunfight: The Battle over the Right to Bear Arms in America. Guns were regulated in the U.S. from the earliest years of the Republic. Laws that banned the carrying of concealed weapons were passed in Kentucky and Louisiana in 1813. Other states soon followed: Indiana in 1820, Tennessee and Virginia in 1838, Alabama in 1839 and Ohio in 1859. Similar laws were passed in Texas, Florida and Oklahoma. As the governor of Texas (Texas!) explained in 1893, the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding man.”

Plagiarism is usually understood to mean copying someone else’s ideas or expressions without attribution. In the case of ideas, the line between learning from others and plagiarism is nebulous. There is really not a lot new under the sun, and it would be preposterous to expect anyone to credit every idea in their head to its original source. If I think that we should lower taxes to encourage entrepreneurs to create jobs, and I got that idea from listening to one of Mitt Romney’s stump speeches, I don’t have to attribute the idea to him, just as he doesn’t have to attribute it to whomever gave him the idea originally (which he almost certainly doesn’t remember anyway). The reason is that the idea is widespread and general. In order to plagiarize an idea, the idea really must be very specific and unique.

In the case of expression, the same standard should govern, but it often seems not to. That is, the question should be, to what extent was the expression specific and unique, but people are much more apt to employ a bright line rule based on the number of identical words. My high school English teacher taught me that copying more than three consecutive words from a source without attribution constituted plagiarism. This strikes me as privileging form over function.

Let’s say I am writing a biography of Abraham Lincoln, and I read in a previously-published biography by Ms. X the following sentence: “Lincoln died on April 15, 1865.” Now let’s say I write, as part of my book and without attribution that “Lincoln died on April 15, 1865.” Is this plagiarism? I think not, but I’m not sure those currently filleting Zakaria in the media would agree.

For starters, you cannot plagiarize a fact. My colleague Adam Winkler, who wrote the book to which LePore and Zakaria referred, wasn’t in Kentucky or Louisiana in 1813 to witness the passage of concealed-carry bans. He learned these facts from some other written source. It might be good scholarly practice for him to note his source (in fact, he does in this case), especially if the genre permits generous footnoting, but the reason is to demonstrate to anyone who cares to look that the fact is correct, not to avoid the charge of plagiarism. There is no ethical obligation to give attribution to the source of a fact, regardless of how much sweat-equity she might have invested in tracking it down. Most of what we know we read somewhere. If failing to source a fact constituted plagiarism, every history book would need a dozen citations per sentence, and every one-page magazine column, like Zakaria writes, would need a second page of footnotes. The dissemination of information through written communication would slow to a halt.

In contrast, you can plagiarize the way facts are expressed. If I copy Ms. X’s entire biography of Lincoln and put my name on the front cover, this is plagiarism, because constructing that book was a massive creative undertaking. The same is true if I copy ten pages of the book word-for-word. But if I copy the sentence, “Lincoln died on April 15, 1865,” I am not misappropriating the prior author’s creative work, because the creativity imbued in this sentence is de minimis. It is an obvious way to string words together to communicate a fact to other English speakers. No one who reads this sentence in my book will wrongly believe that this sentence is an expression of my unique voice. Calling this sentence “plagiarism” would both fail to serve the purpose of preventing the misappropriation of creative expression and create incentives for authors to waste a lot of effort. I could avoid being a plagiarist according to my English teacher’s overly-formalistic rule merely by changing the sentence to read, “Lincoln passed away on April 15, 1865.” This is what he would have advised, but what good would it do anybody to require me to do this?

So what about Zakaria? Clearly he learned about Winkler’s research from LePore’s reporting, but there is nothing wrong with the fact that he informs himself by reading secondary sources. Did he plagiarize her? Did he represent LePore’s creative work as his own?

At best, this strikes me as a borderline case.  Most of the paragraph in question is a straightforward recitation of facts. It takes some creativity to write any sentence, I suppose, but not all sentences are equally creative and they shouldn’t be regarded as such. Notably, Zakaria did not repeat the most creative element of LePore’s paragraph in the Time essay: her conclusion that Winkler’s book is “remarkably nuanced” (it is, by the way, and a very good read to boot — you should buy it!). Many of the words that are identical could not be avoided: Winkler’s name, the title of his book, the names of the states and years that they enacted laws, and the direct quote from the governor of Texas. There is only one sentence in which Zakaria directly copied discretionary words: “Similar laws were passed in Texas, Florida, and Oklahoma.” Would it have changed the aesthetics or nuance if Zakaria had rewritten this to read, “Texas, Florida, and Oklahoma also enacted concealed-carry bans.”? I don’t think so. Is this plagiarism? It shouldn’t be.

Zakaria did string together four sentences into a paragraph using LePore’s structure. Sentence 1: the fact that gun control laws date back 200 years is attributed to Winkler’s book. Sentence 2: some states enacting such laws are listed, with dates. Sentence 3: additional states are added to the list. Sentence 4: the 19th century Governor of Texas cited as a supporter of concealed carry bans. Does this render the paragraph plagiarism under the standard I am proposing? Perhaps yes, given that the governor’s quote doesn’t ineluctably follow from the prior three sentences, although this still strikes me as a very gray area where some leeway should be permitted. At the very worst this is a journalistic misdemeanor that really does not justify tarring Zakaria with the label of “plagiarist” and the opprobrium that the term suggests.

(Orin Kerr)

I recently blogged about United States v. Skinner, the new Sixth Circuit decision concluding that the Fourth Amendment does not protect location information obtained from a cell phone. Skinner has been getting a lot of attention in the blogosphere, in part because the facts are so vague, so decided to take a closer look at the case to see what I could learn about the facts in dispute.

Here’s what I learned. First, here’s the first of the two court orders that the government obtained to compel the phone company to reveal location information. It’s one of the “hybrid” orders that DOJ has tried to use (or at least was using as of 2006, the date of the order) that combines several statutory authorities at once — pen trap, 2703(d), subpoena, etc. Putting aside the open question of the legality of such hybrid orders under statutory laws, the important part for Fourth Amendment purposes is what the court order allows the government to do in terms of location information. The order requires the phone company to provide the government with the following:

(This image may not be sizing correctly for some browsers.  If you’re not seeing well, you can view it here.)  As you can see, the order authorizes the government to get both cell-site and GPS information from the phone. So which did the government use when it “pinged” the phone? It’s somewhat hard to tell, because the magistrate judge’s Report and Recommendation refers to both GPS and cell-site and doesn’t focus much on the distinction. At the same time, the fact section of the magistrate judge’s Report and Recommendation refers primarily to GPS information, not cell-site data. Here’s the critical section, available at United States v. Skinner, 2007 WL 1556596 (E.D.Tenn. 2007):

Agent Lewis was given authorization to ping [FN9] the phone and ascertain its GPS location. He testified that he knew the phone had a GPS device installed in it based on the type of phones that allow minutes to be loaded onto them. Only a few models of telephones are available to those who opt not to subscribe to a wireless service but instead buy a phone which requires minutes to be loaded. After contacting the phone carrier, Agent Lewis learned the specifications for this phone and that it had GPS capabilities.

FN9. “Pinging” a cell phone garners the GPS or triangulation information. [Doc. 71-Tr. 74]. Technically, the phone company does the actual pinging, but the phone company will ping a phone at the government’s ordered request. [Doc. 71-Tr. 75]]

Once Agent Lewis pinged the phone, he discovered that it was in North Carolina. Agent Lewis testified that he immediately realized he had misunderstood previous intercepts of West’s conversations. He now realized that the “James Westwood” phone was the phone that West used to call Big Foot, not the phone in Big Foot’s possession used to call West. To ascertain the number of the phone being used by Big Foot, Agent Lewis called the phone company to get the toll records of all numbers dialed by the “James Westwood” phone. There were several calls, but all were to the help-line and to one other number, (520) 869-6820. The (520) 869-6820 number was registered to “Tim Johnson” and, based on the process of elimination, the agents knew it was the phone being used by Big Foot.

On July 13, 2007, Knoxville agents sought a new order, authorizing the agents to track the “Tim Johnson” phone. Though the actual affiant was Agent Davis, Agent Lewis testified they were working “hand in hand” throughout the investigation and application process. [Doc. 71-Tr. 61]. Agent Lewis also testified that he always relies, and relied in this specific instance, on the Assistant United States Attorneys to provide the correct legal bases to support the applications and affidavits. The agents obtained the order sought.

Acting on the authority granted by the Court, the agents obtained GPS information from the phone company. From this information, the agents learned that the “Tim Johnson” phone was in Arizona. From a wire intercept, they learned that the last load of marijuana had been transferred to the RV on July 13. They also learned that Big Foot was not going to begin his cross-country journey until July 14. The agents believed that, once loaded, the caravan would transport the marijuana to Tennessee, but through a wire intercept they learned that Big Foot was actually going to take the marijuana to his home. Because the agents did not know the exact location of Big Foot’s residence, and thus far did not know Big Foot’s identity, they decided their best course of action was to locate the vehicle and apprehend it on its way east.

The agents did not have anyone following the vehicles and conducting visual surveillance. Therefore, the Knoxville agents watched where the phone was located via GPS tracking with the goal of ascertaining the location of the couriers, Big Foot and his son. They learned that the phone was traveling on an interstate, I-40, on July 15 and moving east across Texas. While watching the phone travel, the officers intercepted a phone call. Agent Lewis testified that at 10:30 P.M. there was a call between, he believed, West and Apodaca, “and Apodaca was wanting to know the progress of the load of marijuana and where it was. And West made the statement that, ‘I just spoke to him and he told me that he’s going to be driving for another couple of hours before he rests.’ ” [Doc. 71-Tr. 50]. At that point, the agents realized the courier would be stationary soon and began to narrow their focus to which Texas office they needed to work with to apprehend the courier. The agents determined that the Lubbock, Texas DEA office would be the closest to where the RV was likely to stop for the night.

At around 2 A.M., the Knoxville agents noticed that an identical GPS reading was appearing. They realized that what West had said earlier was coming true; Big Foot was taking a rest for at least some period of time. Using the latitude and longitude data provided from the telephone company, the agents determined that the vehicle was located at a truck stop near Abilene, Texas.

As I read this, it seems to me that the location monitoring was obtained by ordering the cell-phone provider to contact the phone and have the phone send on its GPS coordinates, not by obtaining cell-site location information that the cell provider was collecting in the ordinary course of business. If that’s right, I think it is still correct that the monitoring did not violate a reasonable expectation of privacy under United States v. Knotts, the radio beeper case, at least so long as the monitoring only revealed the location of the phone on public streets (which appears to be the case). At the same time, I think the legality of the monitoring has to be justified under Knotts as limited by Karo rather than under the broader third party doctrine cases like Smith v. Maryland that the Sixth Circuit at times invoked in support of its opinion.

For more, here’s the government’s appellate brief in Skinner; here are the defense opening briefs and reply brief.

Google's lead attorney in Oracle v. Google, Robert Van Nest of Keker & Van Nest, doesn't let any moss grow on his case. Last Friday, there was a decision in another case, Cambridge University Press v. Becker, where the court ruled that even if there is a split in who won a case, with each side winning something, what matters in terms of having the prevailing party's costs paid is who won the most. And in Oracle v. Google, that would be Google. It's Bill of Costs request is still pending, and now if the judge would like a case to support a decision for Google, forcing Oracle to pay it millions in costs, he has one.

Google immediately filed [PDF] the ruling with Judge William Alsup:Pursuant to Civil Local Rule 7-3(d)(2), Google directs the Court's attention to the discussion regarding the recoverability of costs in the decision filed last Friday in Cambridge University Press v. Becker, No. 1:08-CV-1425-ODE (N.D. Ga. Aug. 10, 2012), attached hereto as Exhibit A. See Exh. A at 12-14. It is indeed attached as an exhibit, but I have done it as text for you, so I can highlight the part they want the judge to notice.

A local woman says wi-fi emanations from new “smart” parking meters in Santa Monica, Calif., have caused her various health injuries including tightness in her neck and an ear infection that took antibiotics to heal. She wants $1.7 billion: “I know it seems a little big,” [Denise] Barton said, “but they can’t do things that affect people’s health without their consent. I think that’s wrong.” [Santa Monica Daily Press, LAist]

Tweet Tags: Los Angeles, roads and streets, toxic torts

Claim: smart meter wi-fi caused ear infection is a post from Overlawyered - Chronicling the high cost of our legal system

• Judge OKs settlement in Skechers shoe promotion suits, valued at $40 million [WaPo, earlier]
• “Philadelphia woman faces $600-a-day fine for feeding needy neighborhood kids” [Fox]
• “Minister Found Guilty of Aiding Miller-Jenkins Kidnapping” [BTB, my latest, earlier]
• Yes, the HHS waiver eviscerates welfare reform [Andrew Grossman, Kaus, more, yet more; Bader, more; Kay Hymowitz, City Journal (quoting Doug Besharov on the reversal: "The domestic policy staff doesn't believe in 'work first'"); contra, Josh Barro, Dave Weigel] USDA: Por favor, acepte food handout [Barton Hinkle, Bader, NR (backs off)]
• Reason “nanny of month” is New Jersey dog seat belt law [Ted Balaker, Hit and Run; our earlier coverage]
• “Malicious prosecution, unfair trials and the U.S. Constitution” [Alison Frankel, Reuters]
• Manchester, Conn.: “Mom Arrested for Letting Her Kids, 11 & 7, Walk to Pizza Shop” [Lenore Skenazy, Free-Range Kids] “Desperate Dad: ‘I Let My 12 y.o. Play Outside. Is that Criminal?’” [Skenazy, The Agitator; update on another case]

Tweet Tags: animals, Miller-Jenkins case, New Jersey, Philadelphia

August 17 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

(Eugene Volokh)

Fire Insurance Exchange v. Oltmanns (Utah Ct. App. Aug. 16, 2012) discusses the practice, and the concurrence goes into even more detail. From the majority opinion:

In the past, we might have hesitated to cite Wikipedia in a judicial opinion given its reputation — perhaps not well deserved — for unreliability.  See, e.g., Wikipedia Survives Research Test, BBC News (Dec. 15, 2005), http://news.bbc.co.uk/2/hi/technology/4530930.stm (finding rate of error in scientific articles to be about the same as between Wikipedia and Encyclopedia Britannica).  But the increasing trend of using Wikipedia in judicial opinions over the last decade seems to demonstrate a growing recognition of its value in some contexts, as noted in one 2010 article that found that by that year Wikipedia had been cited in over four hundred judicial opinions.  See Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 Yale J. L. & Tech. 1, 1 (2009–2010) (reviewing several instances in which Wikipedia has been cited in judicial opinions and critiquing its usefulness, or lack thereof, in those contexts). Judge Posner argued in 2007 that “Wikipedia is a terrific resource ... [p]artly because it [is] so convenient, it often has been updated recently and [it] is very accurate,” after citing it in United States v. Radomski, 473 F.3d 728, 731 (7th Cir. 2007).  See Noam Cohen, Courts Turn to Wikipedia, but Selectively, N.Y. Times, Jan. 29, 2007 at C3. While a prudent person would avoid a surgeon who bases his or her understanding of complicated medical procedures on an online source whose contributors range from expert scholars to internet trolls, where an understanding of the vernacular or colloquial is key to the resolution of a case, Judge Posner is correct that Wikipedia is tough to beat. A fuller explanation of the propriety of citing Wikipedia is set forth in Judge Voros’s separate opinion.

And here’s Judge Voros’s concurrence:

I concur fully in the lead opinion. I write separately to explain why I believe that opinion appropriately cites Wikipedia in construing the term “jet ski” in the insurance contract at issue here. Wikipedia has been cited in hundreds of American judicial opinions, including one issued by the Utah Supreme Court. See State v. Alverez, 2006 UT 61, ¶ 16 n.5, 147 P.3d 425 (citing a Wikipedia entry on Jesus Malverde). But today’s lead opinion is the first time this court has cited it.

Wikipedia is a “free, collaboratively edited, and multilingual Internet encyclopedia” whose 22 million articles (over 4 million in English) are written by volunteers. Wikipedia, Wikipedia, http://en.wikipedia.org/wiki/Wikipedia (as of Aug. 13, 2012, 18:48 GMT). Most of its articles can be edited by anyone with access to the site. Wikipedia claims to be “the largest and most popular general reference work on the Internet,” with “an estimated 365 million readers worldwide” and “2.7 billion monthly pageviews from the United States alone.” Id. (footnotes omitted).

Because Wikipedia is an open‐source project, questions arise as to its reliability. Indeed, Wikipedia’s own article on the subject references various studies as well as opposing views from librarians, academics, experts in science and medicine, and editors of other encyclopedias. See Wikipedia, Reliability of Wikipedia, http://en.wikipedia.org/ wiki/Reliability_of_Wikipedia (as of Aug. 13, 2012, 18:51 GMT). In addition, most or all Wikipedia entries include a broad disclaimer on the entry’s citation page:
IMPORTANT NOTE: Most educators and professionals do not consider it appropriate to use tertiary sources such as encyclopedias as a sole source for any information — citing an encyclopedia as an important reference in footnotes or bibliographies may result in censure or a failing grade. Wikipedia articles should be used for background information, as a reference for correct terminology and search terms, and as a starting point for further research. As with any community‐built reference, there is a possibility for error in Wikipedia’s content — please check your facts against multiple sources and read our disclaimers for more information.

Wikipedia, Cite Page: Jet Ski, http://en.wikipedia.org/w/index.php?title= Special:Cite&page=Jet_Ski&id=493156065 (as of Aug. 13, 2012, 18:52 GMT). [Footnote: Reliability may also be an issue for the Wikipedia citation itself:
A defining feature of Wikipedia is that its entries are in a constant state of change. The impermanent nature of the information on Wikipedia has serious consequences when Wikipedia entries are cited in judicial opinions. Unless they are provided with a date‐ and time‐specific citation, researchers who pull up a Wikipedia entry cited in a judicial opinion will never be absolutely certain they are viewing the entry as it existed when the judge viewed it.... This may ultimately lead to uncertainty and instability in the law.

Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 Yale J.L. & Tech. 1, 38–39 (2009–2010). Fortunately, each Wikipedia entry has a “Cite this page” link showing citations to that entry in various styles, including the style prescribed by the Harvard Journal of Law & Technology. That journal’s citation style, which I have followed in this opinion, is more specific than ordinary Bluebook citation style.]

Citing Wikipedia is as controversial as it is common. [Footnote: “Many citations by judges, often in footnotes, are ... beside the main judicial point, [and] appear intended to show how hip and contemporary the judge is ....” Noam Cohen, Courts Turn to Wikipedia, but Selectively, N.Y. Times, Jan. 29, 2007, available at http://www.nytimes.com/2007/01/29/technology/29wikipedia.html. The lead opinion’s citation to Wikipedia is obviously not of this type.] Some courts approve it, others condemn it. Compare United States v. Lawson, 677 F.3d 629, 650 (4th Cir. 2012) (stating that the court is “troubled by Wikipedia’s lack of reliability”), Bing Shun Li v. Holder, 400 Fed. App’x 854, 857–58 (5th Cir. 2010) (expressing “disapproval of the [immigration judge]’s reliance on Wikipedia and [warning] against any improper reliance on it or similarly unreliable internet sources in the future”), Badasa v. Mukasey, 540 F.3d 909, 910–11 (8th Cir. 2008) (noting Wikipedia’s acknowledgment that, “at any given moment,” an entry “could be in the middle of a large edit or it could have been recently vandalized” (citation and internal quotation marks omitted)), and In re Marriage of Lamoure, 132 Cal. Rptr. 3d 1, 15 (Cal. Ct. App. 2011) (“We do not consider Wikipedia a sufficiently reliable source” for defining the term “noncustodial.”), with Prude v. Clarke, 675 F.3d 732, 734 (7th Cir. 2012) (citing Wikipedia entry, in the context of an Eighth Amendment challenge, for the proposition that an anal fissure “is no fun at all”), United States v. Brown, 669 F.3d 10, 18 & n.12 (1st Cir. 2012) (citing Wikipedia for its definition of “sovereign citizen movement,” one of a criminal defendant’s “atypical legal beliefs”), Murdock v. Astrue, 458 Fed. App’x 702, 705 n.3 (10th Cir. 2012) (citing Wikipedia for “some examples of block lengths from cities in this country”), and State v. Ballard, 2012‐ NMCA‐043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012) (citing Wikipedia to define “peer‐to‐peer file sharing”).

A recent law review article by Professor Lee F. Peoples examines in depth the issues surrounding the citation of Wikipedia in judicial opinions. See Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 Yale J.L. & Tech. 1 (2009–2010). While Wikipedia is gaining acceptance among judicial writers, Professor Peoples notes that reliance on Wikipedia has occasionally been held to be erroneous: [A]ppellate courts have reversed or found error in lower court decisions [for] relying on Wikipedia entries for psychological research in a child custody case, for attempting to refute expert medical testimony with a Wikipedia entry, and perhaps most egregiously for denying an asylum seeker’s request based on information obtained from Wikipedia. Id. at 45 (footnotes omitted) (citing Badasa, 540 F.3d at 909; Campbell v. Secretary of Health & Human Servs., 69 Fed. Cl. 775, 781 (2006); D.M. v. Department of Children & Family Servs., 979 So. 2d 1007, 1010 (Fla. Dist. Ct. App. 2008), reh’g en banc granted (May 14, 2008)).

Professor Peoples extracts from the case law “several bright line rules for when a Wikipedia entry should not be cited in a judicial opinion.” Id. at 28. For example, he suggests that “[c]ourts should not take judicial notice of Wikipedia content,” because that content “is disputable and its accuracy can be reasonably questioned.” Id. He also states that “Wikipedia should not be cited when a more authoritative source exists for the information.” Id. at 29. In particular, Wikipedia is a poor source “to define technical or scientific terms.” Id. at 46. And he cautions that “[a] Wikipedia entry should not be relied upon as the only basis for a court’s holding, reasoning, or logic,” given the encyclopedia’s “numerous shortcomings” discussed in his article. Id. at 29.

[Footnote: Among its shortcomings -- and strengths -- is Wikipedia’s fluidity. Anyone can edit a Wikipedia entry at any time, making it vulnerable to “‘opportunistic editing.’” See Noam Cohen, Courts Turn to Wikipedia, but Selectively, N.Y. Times, Jan. 29, 2007, available at http://www.nytimes.com/2007/01/29/technology/29wikipedia.html (quoting Professor Cass Sunstein). Thus, “‘an unscrupulous lawyer (or client) could edit the Web site entry to frame the facts in a light favorable to the client’s cause.’” Peoples, 12 Yale J.L. & Tech. at 24 (quoting R. Jason Richards, Courting Wikipedia, Trial, Apr. 2008, at 63). Opportunistic editing is detectable, however. Every article on Wikipedia has a “View history” tab with links to all previous edits, the dates of each edit, and the user name or IP address of each editor. The revision history also allows the reader to view an article in each of its previous iterations. By this method, we can see that the three possible meanings of the term “jet ski” discussed in the lead opinion were part of the Wikipedia article before the present dispute arose. See Wikipedia, Jet Ski, http://en.wikipedia.org/w/index.php?title=Jet_Ski&oldid=14710157 (as of June 3, 2005, 06:32 GMT). Further, as Professor Peoples notes, “[a] database called WikiScanner allows a researcher to dig deeper into the revision of a Wikipedia article.” Id. at 25 (citing WikiScanner, http://wikiscanner.virgil.gr/ (last visited by Peoples Dec. 16, 2009)).]

However, Professor Peoples acknowledges “some limited instances where it is appropriate for a Wikipedia citation to appear in a judicial opinion.” Id. at 30. Some are obvious, such as where the Wikipedia entry itself is at issue or where the court must address a Wikipedia entry cited by a party. See id. In addition, the evolving nature of Wikipedia “makes it a good source for definitions of new slang terms, for popular culture references, and for jargon and lingo including computer and technology terms.” Id. at 31 (citing “tweaking,” “phreakers,” and “screenshot”).

Relevant here, Professor Peoples also states that “Wikipedia entries can be useful in some limited situations ... for getting a sense of a term’s common usage.” Id. at 50. In particular, he recognizes the utility of Wikipedia in the interpretation of terms appearing in insurance contracts: The collaborative process used to create Wikipedia entries makes them potentially useful to courts in specific situations. In several cases courts attempting to interpret insurance contracts have turned to Wikipedia entries for evidence of the common usage or ordinary and plain meaning of a contract term. This method of interpretation [i.e., looking to common usage] “has long been recognized, and has been applied in the context of various types of insurance.” Wikipedia has been used in this context to define the terms “recreational vehicle” and “car accident.” Id. at 32 (footnotes omitted) (quoting 2 Couch on Insurance § 22:38 (2005), and citing Laasmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment & Dependent Life Ins. Plan, No. 06‐cv‐00013‐MSK‐MJW, 2007 WL 1613255, at *4 n.5 (D. Colo. June 1, 2007); Fergison v. Stonebridge Life Ins. Co., No. 271488, 2007 WL 286793, at *3 (Mich. Ct. App. Feb. 1, 2007) (per curiam)). See also Colony Nat’l Ins. Co. v. Hing Wah Chinese Rest., 546 F.20100462‐CA 12 Supp. 2d 202, 209 n.9 (E.D. Pa. 2008) (citing Wikipedia in a discussion of the meaning of the term “restaurant” in an insurance policy).

Of course, getting a sense of the common usage or ordinary and plain meaning of a contract term is precisely the purpose for which the lead opinion here cites Wikipedia. Our reliance on this source is therefore, in my judgment, appropriate. Moreover, here Wikipedia does not stand alone. As appellants note, the Macmillan online dictionary defines “Jet Ski” as “a very small fast boat for one or two people that you drive standing up.” Macmillan Dictionary, http://www.macmillandictionary.com/dictionary/ american/Jet‐Ski (last visited Aug. 13, 2012).

Finally, we need not nail down the one true meaning of “jet ski” in this case. Whatever meaning the drafters of the insurance policy may have intended, our task is to determine whether they employed “language which clearly and unmistakably communicates ... the specific circumstances under which the expected coverage will not be provided,” Alf v. State Farm Fire & Cas. Co., 850 P.2d 1272, 1275 (Utah 1993), or whether, on the contrary, there is “a range of possible meanings” that the term may bear in this context, see In re E.Z., 2011 UT 38, ¶ 103, 266 P.3d 702 (Lee, J., concurring in part and concurring in the judgment). Whatever its shortcomings in other contexts, for this task, an open‐source encyclopedia with many editors and millions of readers seems just the ticket.

(Todd Zywicki)

Well, apparently GM’s bankruptcy and government ownership left one slight problem unresolved–its cars are still lousy.  And, apparently, getting lousier.

Which would explain another development: GM’s increasing reliance on selling cars to people that can’t pay for them.