Andrew McClurg's

New Casebook on Zombie Law

Good news for legally inclined zombie lovers. Joshua Warren has compiled a casebook on Zombie Law that “include[s] case opinions from the over 300 U.S. Federal Court opinions with the word “zombie” (and “zombies”, “zombi”, “zombis”, “zombified”, “zombism”, etc..).” These include cases from the zombified Supreme Court (available as postcards, along with zombie law teeshirts and zombie flashdrives).

Warren explains that this is a “serious” project. From his promotional website:

The “zombie” in federal courts are very interesting. Aside from the intellectual property cases that provide some reflection on modern zombie fiction, there are also ample metaphoric uses of the word in these judicial writings. Judges have referred to “zombie precedents” and “zombie litigation”. There are zombie corporations, zombie criminals, a significant number are social security cases in which people describe themselves in zombie condition and even a recent mentions of cybernetic zombies.

Unlike other works of zombie academia, the zombies in this book are all real. Most zombie scholarship uses hypothetical zombies as tropes to create entertaining and extreme fact patterns that can be used to explain complex subject matters. This has been used effectively for neuroscience (Schlozman, Voytek), international policy analysis (Drezner), public health (Center for Disease Control), geography (Kickstarter project: Zombie-Based Learning), survival skills (Brooks) amongst other subjects (See Zombie Research Society) including also academics who focus on the fictional character itself (Mogk, Brooks).

This Zombie Law book is different because it does not use zombies as hypotheticals to teach law. It is not conjecture about what zombies are or might be. This book is a compendium of real usages of the actual word in American jurisprudence. This book is a collection of real legal cases that literally include “zombies” (or similar word) in US Federal Court opinions..

The basic outline of the book will separate most cases into issues of corporations, medications, criminals and, of course intellectual property. Major sections will be devoted to Social Security (disability) law, corporate fraud and issues of criminal intent. There are noteworthy cases referring to post traumatic stress disorder and many recent Social Security cases regarding of fibromyalgia. The intellectual property cases are about popular zombie fiction and also so-called “vicious zombi” patents. In general, the idea of zombies in a mall is public domain for copyright but particular forms of zombie products are protected by trademark.

Frequently there is a sort of double meaning in the word. In Social Security cases, the word zombie is found as a symptom of pain, depression and anxiety but also the side effect of medications prescribed for those same symptoms. In criminal law, zombie appear in victim’s description of their assailant’s behavior but also as defense argument against criminal intent. For corporations the ironic question of corporate-personhood begs the question, ‘what is a person?’, which is often the implied question of zombie studies.

For all you law professors and other legal authors who thought there was no niche left to write about, Warren shows you just have to think outside of the box, in this case, the ones buried six feet under.

2012 Spot the Tort Contest: Faulty Foundation

by Andrew McClurg

2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Here’s a pic of the column holding up the front of my apartment building — resting on a few random bricks. Take my word for it that there’s no mortar between those bricks or anything physically connecting the column to said bricks. I’ll send you a pic of the outside staircase tomorrow–it scares me! — Natalie Worlow

2012 Spot the Tort Contest: Another Safety Cone Fix

by Andrew McClurg

2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Just before school started the city public works department came to my house to replace a clay sewer pipe under the street. I took these photos a few minutes ago. I wonder how many more times I need to call them; I’m sure they could use the orange cone elsewhere! — Rick McCabe

2012 Spot the Tort Contest: Loose Pool Table

by Andrew McClurg

2012 “Spot the Tort” Contest with my 1Ls at the University of Memphis law school:

Possible tort spotted this morning on Walnut Grove in front of Baptist East Hospital. The picture is a bit blurry, but the pool table in the back of this tailgate-less truck was secured to the truck bed by nothing other than gravity. The truck also did not have functional brake lights, as we were all at a complete stop at the red light when I took the photo. — Melissa Harris

Gilligan’s Island Tale Helps Federal Judge Sort Out Shipwreck Dispute

by Andrew McClurg

judge invokes gilligans island — Betting the professor was this federal judge’s favorite Gilligan’s Island character.

In an opinion that is part period-piece shipwreck thriller and part Gilligan’s Island pop-culture fun, Chief U.S. District Judge William Steele (S.D. Ala.) attempted to unravel a dispute over the ownership rights to an unidentified shipwreck off the coast of Alabama. The wreck is believed to be either the Clipper Ship ROBERT H. DIXEY or the British barque AMSTEL.

Several parties, including the United States and Alabama, claimed title to the wreck. Unfortunately, whichever ship it was, it sank more than 150 years ago, leaving Judge Steele to observe in a footnote that historical scholars were better-suited than a federal judge to determine the ship’s identity:

FN4. This procedural posture is highly unusual. For starters, the proper identity of Shipwreck # 1 is a matter better suited for spirited scholarly discourse than black-letter judicial construction. Yet the parties have submitted their dispute to a federal judge, not a 19th century maritime historian. Furthermore, while both sides agree that 100% certainty as to the vessel’s identity is not possible, resolution of this factual issue does not turn on the sort of credibility determinations for which an evidentiary hearing would be appropriate. The underlying events having taken place a century and a half ago, there are no live witnesses to recount the circumstances under which the DIXEY and the AMSTEL sank. Nor are there dueling expert witnesses whose theories might be poked and prodded via cross-examination. Instead, as the DIXEY Claimants succinctly state, “[t]here is what there is.”

But Judge Steele did a pretty good scholarly job himself in recounting the interesting history of both ships, starting with the DIXEY, where he invoked the 1960s sitcom, Gilligan’s Island, for a unifying thread (Gilligan’s Island references have been bolded):

Just sit right back and you’ll hear a tale, a tale of a fateful trip. It did not start in a tropic port, nor aboard a tiny ship. On August 15, 1860, the Clipper Ship ROBERT H. DIXEY set sail that day from New York to Mobile, carrying a cargo described only as “miscellaneous hardware.” The DIXEY reached an anchorage in Mobile Bay on the evening of September 14, 1860. By inopportune coincidence, the DIXEY arrived at the Bay just hours ahead of a Category 1 hurricane. Wary of the approaching storm, Captain Dixey (by all accounts a skipper brave and sure) put out “double anchors and all chain” at 10 p.m., and took “all measures to ride out a storm.”

The hurricane struck at approximately 2:00 a.m. on September 15, 1860. The DIXEY actually weathered the first few hours of the storm well. With the winds out of the south, the DIXEY was sheltered by the buffering presence of Dauphin Island (to the vessel’s south) from the worst of the rough seas, at least initially. After 8:00 a.m., however, the eye of the hurricane passed, and fierce winds shifted to the north. The weather started getting rough, and the mighty ship was tossed. In its anchored position, the DIXEY was exposed to approximately 17 miles of open shallow water stretching all the way to Mobile. As a result, the DIXEY was pounded by the punishing winds and roiling seas. The first anchor’s chain broke at around 10:00 a.m. The DIXEY’s crew began working feverishly to cut away its masts and sails, thereby lightening the ship and reducing its wind exposure, even as the DIXEY took on water for over an hour. If not for the courage of the fearless crew, the DIXEY would have been lost. Alas, the gale continued to worsen and the other anchor chain snapped, causing the DIXEY to be buffeted by the hurricane, tossed around in the shallow water like a child’s toy. The wind and seas pushed the helpless DIXEY south down the shipping channel of Mobile Bay for some 12 miles. [The DIXIE ultimately was pounded to pieces by the storm.]

Judge Steele also recounted the AMSTEL’s fate, another interesting story, but left out any pop culture references. Aw, come on, Judge. As Sammy Hagar sang with Van Halen, you gotta finish what you started. Maybe he ran dry on Gilligan’s Island’s references, but he always could have switched to a Wreck of the Edmund Fitzgerald theme.

In the end, the judge ruled that the ship was the AMSTEL, but ordered the parties to continue gathering evidence and let him know if he got it wrong.

From the scholarly bent of this opinion–setting aside the Gilligan’s Island references–I’m guessing “The Professor” was Judge Steele’s favorite Gilligan’s Island character.

Fathom Exploration, L.L.C. v. The Unidentified Shipwrecked Vessel or Vessels, etc., in rem, Civil Action No. 04-0685-S-M. (S.D. Ala., Mar. 12, 2012).

Spot the Tort: The Balcony Doors to Nowhere

by Andrew McClurg

“I am just a nowhere man, falling into nowhere land, stepping through the balcony doors to nowhere.”

With apologies to the Beatles, that’s the tune that came to mind on receiving this picture of a second floor balcony with nowhere to go but down at a resort at Pickwick Lake in Tennessee.

The submitter said the doors open inward. While the railing no doubt helps, the open space at the bottom is still a tort waiting to happen.

Suit Against T-Mobile Results in a True Pot-Boiler

by Andrew McClurg

In this class action against T-Mobile for allegedly reactivating stolen phones after they were reported stolen, the plaintiffs invoked a recipe metaphor from another case, but the U.S. Court of Appeals for the Eleventh Circuit turned it around on them. The court opined the closest the plaintiffs came to explaining the trial court’s alleged error

is when they quote (in their reply brief) a metaphor from an opinion in another case: “Just as one bad ingredient can spoil a stew, one error of law can spoil an order.” Gray v. Bostic, 625 F.3d 692, 697 (11th Cir. 2010) … [Explaining Gray as a case where the error was blended in the trial court’s decision and distinguishing it from the instant case where the trial court, in the court’s opinion, stated independent valid grounds for its ruling against plaintiffs.] That was why the error spoiled the stew in Gray. Here, the district court’s decision was not contained in a single pot with blended ingredients but instead was contained in a number of pots containing different ingredients. If a bad ingredient went into some of the pots, that would not spoil what was dished out of a pot that was free of the ingredient.

The Eleventh Circuit upheld the district court’s denial of class certification. Meanwhile, I have a bone to pick with, er, or stir into, the merits of this suit. The federal district court denied class certification on the basis that the value of stolen phones can’t be uniformly determined. Accordingly, common questions of fact did not predominate, as required for the plaintiffs to obtain class certification under the Federal Rules of Civil Procedure. Here is the district court’s take on the absolutely insurmountable problem of valuing stolen phones:

Here, Plaintiffs contend that “in this era of Ebay and other public online sites selling used phones by the millions, determining a particular model phone’s value is a relatively simple matter of online research.” However, they certainly offer no concrete proposal or methodology about how to effectively and accurately manage such online research on a nationwide basis. For example, when conducting online research, would 2011 be the year to use for establishing the value for a used phone of a certain model or would the year in which the phone was misplaced or stolen be the more appropriate time frame? Plaintiffs also ignore how individualized issues relating to the age of the phone, what contents or applications were previously on the phone, and whether the original owner was a heavy or light user of the phone, might affect the value of the used phone. Additionally, Plaintiffs do not address whether loss of use of the phone should be compensable and, if so, suggest how it might be reduced to a formula-type calculation.

If courts aren’t willing to ballpark something as simple as the value of stolen phones, consumer and other class actions are in big trouble, which, of course, they already are under a growing body of legislative restrictions at both the federal and state levels. Assuming the truth of the plaintiffs’ allegations, the effect of the court’s ruling is that every person who had their phone stolen and reactivated after reporting the theft would have to bring a separate lawsuit to get relief, which, of course, isn’t going to happen because pursuing litigation is cost and time prohibitive to all but the most querulous of consumers. The threat of individual consumer lawsuits in cases that, like this one, involve small amounts of damages isn’t a realistic deterrence to corporate misconduct.

But no worries. There won’t be any individual lawsuits anyway because T-Mobile, like most corporations, requires customers to sign or click-through an agreement in which they give up their legal rights to sue in a court of law in favor of binding non-judicial arbitration. (Whether T-Mobile had waived the arbitration clause was another issue in the litigation.)

—Little v. T-Mobile, Case No. 12-10170, U.S. Court of Appeals for the Eleventh Circuit, August 22, 2012. Thanks to Paul Scott.

A First: A Comic-Strip Brief

by Andrew McClurg

Thanks to Lawahaha.com friend Bob Van Voris of Bloomberg News for sending along a true first: an amicus brief filed in a complex intellectual property dispute in the U.S. District Court for the Southern District of New York comprising only comic strip panels.

(You can get a taste by clicking on the expandable thumbnail, but this gem deserves to be read in full.)

Limited by the court to filing a brief of five pages, Bob Kohn took out his frustration by deciding to simplify the complex arguments in comic book form.

The brief is made up largely of a cartoon-bubble conversation between a man and woman (Kohn and his daughter, according to other sources) in which the man starts out struggling “to explain why supply & demand does not operate normally in the pricing of e-books.” Fortunately–because remember he only has five pages–the woman catches on very quickly, becoming an instant expert in federal antitrust law.

Even so, and despite Kohn’s valiant, creative efforts, his principal concern proved accurate: it’s hard to articulate complex antitrust arguments such as horizontal, predatory and marginal pricing in five pages, regardless of the expression-medium. Maybe he should have just borrowed from Charles Schulz and expressed a simple “Good grief!”

The comic book/federal appellate brief ends with this colloquy:

“You should have been a lawyer,” says the male character.

“Nope. Not for me.”

“Why not?”

“I’m a novelist and it’s impossible to tell a complex story in only five pages.”

Excellent try though. Even if Kohn’s side loses, not all is lost. Maybe Marvel Comics will pick up the tale and create a new series, “Amici Man.”

More details about the underlying case and Kohn’s motivations can be found in this ABA Journal article.

Brief of Bob Kohn as Amicus Curiae, U.S. v. Apple, Inc., Civ. Action No. 12-CV-2826 (DLC), S.D.N.Y., Sept. 4, 2012. Thanks to Bob Van Voris.

Book Review: Life Without Lawyers

by Andrew McClurg

Andrew Jay McClurg, Book review: Philip K. Howard, Life Without Lawyers: Restoring Responsibility in America, 52 American Journal of Legal History 387 (2012).

Contrary to the title, Philip K. Howard’s Life Without Lawyers is not an anti-lawyer screed. It does not argue for a society without lawyers and suggests only in passing that America has too many lawyers. A more apt title would be “Life Without Rules” or maybe “Life Without Law.”

Howard argues that America’s enormous inventory of laws and bureaucratic rules is crippling society by making it impossible for people and institutions to do their jobs effectively. His opinion is that the primary reason is because they live in fear of potential legal consequences, making a case that the rights-explosion of the 1960s has led to a rights-obsessed, risk-averse culture that overvalues individual rights to the detriment of broader communitarian interests.

His principal solution is to grant judges and administrators more discretion to make decisions without the necessity of having a legally supportable record to back up their decisions.

This review contains some critique, but agrees with most of Howard’s general observations and concludes the book is a powerful one worth reading.

Fight Club: Doctors vs. Lawyers

by Andrew McClurg

Fight Club: Doctors v. Lawyers, Chicago Medicine, June 2012, at 8 (cover story).

This article, a shorter version of an article first published in the Temple Law Review, argues that doctors and lawyers have strong shared self-interests that should motivate them to improve their bitter relations, while offering several specific examples of ways to accomplish that goal.

Among other things, the article traces the history of medical malpractice litigation in the U.S. Did you know that the first reported medical malpractice case occurred in 1794 and that lawyers were first called sharks by doctors in 1878? Here’s an excerpt:

Relations between doctors and lawyers got off to a rocky start in the first reported U.S. medical malpractice case, Cross v. Guthery, decided by a Connecticut court in 1794. The defendant operated on the plaintiff’s wife to remove a breast. She died three hours after the surgery because, according to the court, the defendant “performed said operation in the most unskillful, ignorant and cruel manner.”

The jury awarded the plaintiff £40. One can imagine relations got frosty in the litigation when the defendant doctor asserted that the plaintiff wasn’t entitled to damages because he allegedly had agreed to settle the case for £15—which the doctor claimed the plaintiff owed him “for doctoring his wife.” The court rejected the defense and ruled for the plaintiff.

Medical malpractice lawsuits were rare when Cross was decided. Early on, some physicians actually embraced malpractice litigation as a way to cleanse their ranks of quacks and charlatans. At the time of the American Revolution, only 5 percent of the nation’s 3,500 medical practitioners had any type of medical degree. Relations soured, however, with a surge of lawsuits filed between 1840-50, a period denoted by James Mohr as the nation’s first “medical malpractice crisis.”

By 1860, a book review of an early treatise about medico-legal jurisprudence opined that “law and medicine had evolved into mutually incompatible professions.” Less restrained assessments of the relationship were abundant. As Mohr noted, “[i]t would be easy to fill several hundred pages full of vituperative, anti-legal rhetoric from medical journals after mid-century.”

The first reported unflattering comparison by doctors of lawyers to a certain ocean predator appeared around this time. In 1878 physician Eugene Sanger wrote that medical malpractice lawyers “follow us as the shark does the emigrant ship.” The epithet has enjoyed impressive staying power. A hundred years later, the president of the Association of American Medical Colleges told a graduating medical school class, “We’re swimming in shark-infested waters where the sharks are lawyers.”

The article argues that the two professions have a stronger self-interest in building up professions generally than in continuing to tear each other down.