Bad Law

BY ANDREW J. McCLURG

Researchers have announced alarming findings from a study of science textbooks used by middle school students: they’re riddled with inaccuracies. Led by John L. Hubisz of North Carolina State University in Raleigh, investigators poured over the dozen most popular science texts and compiled a list of errors 500 pages long.

This got me worrying about legal education. Has anyone ever studied law school casebooks for accuracy? I took on the task, painstakingly reviewing casebooks in the first-year curriculum for errors. The results were shocking. Here are just a few excerpts of questionable accuracy from some of the most popular first-year casebooks:

Famous Property text:

“Of all areas of law, future interests holds the greatest everyday relevance to most lawyers. Hardly an hour goes by that a lawyer isn’t called on to apply The Rule in Shelley’s Case, although most lawyers ‘pay the rent’ with bread and butter Rule Against Perpetuities cases.

“The law of future interests is so simple and straightforward that ‘future interest mill’ firms now rely on secretaries to fill out forms to manage their hectic practices, which can average 1,000 fertile octogenarians a week.”

Famous Legal Writing text:

“Flowery run-on sentences with no punctuation are the key to good legal writing. Before beginning any sentence, ask yourself, ‘How many words can I cram into it?’ If your answer is less than 250, rethink the sentence.

“When writing a brief, use lots of inflammatory, ad hominem-filled hyperbole, as judges greatly prefer it to clear reasoning.

“Don’t worry about typographical errors. No one notics thm. And remember, if you personally think your writing is good, you’re probably right.”

Famous Torts text:

“Tort reform is a very non-controversial issue. American business leaders in particular are unanimous in their praise that our tort system functions like a smooth-running timepiece. Their only complaints are that personal injury lawyers receive inadequate compensation and that high punitive damages awards occur too infrequently.

“On the other side, most plaintiffs’ lawyers feel strongly that industry can be counted on to do the right thing and that the judicial system should just back off and leave corporate America alone.”

Criminal Law text:

“Because murder is a serious felony, it is sound legal advice to tell your clients to dispose of the body and murder weapon quickly. Explaining with a well-timed wink that fewer witnesses means lower litigation costs can help ease your path to a smooth trial.

“One thing you don’t have to worry about practicing criminal law is getting paid. Criminal clients are by nature honest and reliable people who remain grateful even after conviction. Most will carefully set aside a portion of their income each month from selling drugs in prison to pay outstanding legal bills.”

Famous Civil Procedure text:

There’s been concern in educational circles that texts are being “dumbed down.” I didn’t believe it was a problem in law school until I came across this excerpt in a Civil Procedure casebook:

“Once upon a time there was a Pennoyer and a Neff. They lived in a dark, scary forest called Personal Jurisdiction. One day a scary monster called the Supreme Court descended on the forest, laying a curse upon the land …”

Pretty disturbing results, huh? Don’t be too concerned. Other educational research shows that the harm caused by flawed textbooks is minimized by the fact that most students don’t read them.

The© Controversy

BY ANDREW J. McCLURG

The music industry has won its lawsuit against Napster to prevent song swapping on the Net. Pfizer, maker of Viagra, is suing a Little Rock woman for selling bottles of “Niagara,” claimed to be an aphrodisiac for women. Margaret Mitchell’s heirs sued to block publication of Alice Randall’s controversial takeoff of “Gone With the Wind.”

With the explosion in intellectual property rights, I knew it was only a matter of time before trouble arrived, which it did last week in the form of an alarming cease and desist letter from an IP firm claiming to represent the heirs of one Mr. Ug.

The letter asserts that Mr. Ug—allegedly a Homo erectus Peking Man domiciled in a cave in China 500,000 years ago—was first to utter the word the. The heirs are claiming a copyright in the and want me to quit using it. They also seek damages for past infringement. I could use some legal advice. Here’s the letter:

Dear Sir:

We recently became aware of your meager attempts to achieve humor through the© deliberate and willful exploitation of our client’s property; to wit, the© word the.©

Specifically, in the© past 48 months, we have documented more than 7000 copyright infringements of the© protected work in your humor columns, email, bathroom graffiti and other writings, all in violation The© Copyright Act of 1976, §101 et seq. Last month alone, we collected 63 infringing checks from your garbage written to The© Ole Neighborhood Tavern.

Mr. Ug copyrighted the© in or about 498,000 B.C. when, as a result of an apparent misunderstanding of the properties of fire, he pressed tongue to palate while simultaneously exhaling, thereby authoring theeeeaaaaahhhhieeeee, one of the most enduring and highly-creative works of the 498th-century, B.C.

(Immediately thereafter, he authored another dramatic work — ump, ump, ump — while bludgeoning himself with a club to distract from the pain in his flaming foot.)

As Mr. Ug’s lawful heirs, our clients assert a copyright in the© entire compilation work and a derivative right in each subpart: the, eee, aaaaa, hhhh, ieeeee, as well as ump (which we are currently disputing with Major League Baseball).

As you may know, copyright law requires that the protected work be expressed in a tangible form. Fortunately, Mr. Ug was a Peking Man of great foresight.

Enclosed is a photograph of the inside of Mr. Ug’s residence where you can clearly see the copyrighted works carved in the rock directly above the crude drawing of what appears to be a sabre-tooth tiger devouring Mr. Ug’s neighbor (we also assert a copyright in all pictures of tigers, neighbors and food products). According to our expert anthropologist, the chisel mark at the end is in fact a © symbol.

We demand that you immediately cease and desist using the© either orally or in writing and that you compensate our clients for past use. Be advised that This Letter© is copyrighted and that copying, quoting or even reading it will subject you to additional legal action.

Very truly yours,

We Own It, the Macho IP Firm

Personally, I feel strongly that the overly-aggressive assertion of intellectual property rights threatens free speech, and you can quote me on that. However, if you do it without written permission, you’ll be hearing from my intellectual property lawyers.

Oil Fume

BY ANDREW J. McCLURG

Following a summer of high gas prices, blackouts in California, and record oil company profits, some worriers think we might need to tweak our nation’s energy policy. Since many of the proposed solutions will entail considerable legal wrangling, lawyers need to be well-informed about this vital issue. Here are some of the most commonly-asked questions:

Q. Who’s to blame for our current energy woes?

A. Unfortunately, U.S. supplies of persons to blame for the energy crisis are running dangerously low. Experts predict that if we don’t begin conserving blame soon, we will run out by 2010. In the meantime, politicians and pundits have taken to bashing Etienne Lenior for inventing the internal combustion engine in 1860.

Q. What happened to President Bush’s campaign promise to pressure OPEC to “open the spigots”?

A. Aides claim the President never used that term, but rather, said “gropen la friggets,” which aides describe as “just one of those things the President says sometimes.”

Q. The Administration favors reducing clean air standards as a way to boost the economy. Would it work?

A. Possibly. Such a move could lower gas prices, as well as stimulate lagging markets in throat lozenges, asthma inhalers and oxygen tents.

Q. Is seems like a lot of these questions are picking on President Bush. Do the Democrats have anything better to offer?

A. Yes. A prime source of alternative energy: hot air.

Q. Should we be worried about the proposal to drill for oil in the Alaskan wildlife preserve? What if there’s a spill?

A. Oil companies say not to worry because they’ve come up with a new plan for protecting the Alaskan environment, which is to paint everything black. The companies claim they’ve been judged unfairly for spills simply because oil shows up badly on snow and water. An oil company exec likened the plan to buying a dark sofa to hide red wine stains.

Industry officials have also criticized local wildlife for not engaging in more self-help. As one industry official put it, “If a seal can balance a ball on his nose, why can’t he learn to rub a Handi-Wipe® on the ground. It’s not rocket science.”

Q. I read that American consumers are so fed up with high gas prices that they’re staging protests. True?

A. Yes. Millions of SUV owners recently converged on soccer fields around the nation to rev their engines and talk on their cell phones about the problem. To prove their commitment to being part of the solution, they turned down their AC units to medium for five minutes.

Q. There’s been speculation that recent oil company mergers have contributed to the problem by limiting competition. Is that true?

A. “Nonsense,” says Wink Gouger, new CEO of Amoco-Chevron-Exxon-Mobil-Texaco, Inc.

Q. A lot of people think a complex conspiracy lies behind gas price hikes? What’s the real story?

A. $omething $impler.

Q. Maybe I’m missing something, but 28 years ago an OPEC embargo practically ground the nation to a halt. Since then we’ve been consuming 17 million barrels of oil a day, while paying almost no attention to conservation or the development of alternative fuels. Don’t we as a nation bear part of the blame?

A. No. That’s very unreasonable of you to even ask that question.

For Children’s Sake

BY ANDREW J. McCLURG

Protect the environment. Reform welfare. Lower taxes. Regulate the Internet. Control guns. And do it all for the sake of children!

Politicians are coming to believe that any issue can be sold to the American people so long as it is dressed up in the language of protecting children, as demonstrated by this recent argument on the House floor in favor of increased subsidies for tobacco:

“Mr. Speaker, fellow members, I’m here today to urge support for my bill to increase federal subsidies for tobacco. A vote for my bill is A VOTE FOR CHILDREN!

“Look around us. What do you see? Falling stocks. Declining earnings. Plummeting home sales. But youth smoking isn’t declining. No sir. It’s rising and it will keep rising, thanks to the tobacco industry and the children of this great land of ours. God bless them.

“There are those among us who oppose more tobacco and smoking due to health concerns. But what lesson do we teach our children if we let a few malignant cells kick our butts, especially those little punks causing all that small-cell lung cancer? Sure, 400,000 smoking-related deaths a year seems like a lot, but we have a whole lot more than 400,000 PRECIOUS CHILDREN in this great nation of ours!

“Just think what a better place America would be if more children smoked. We’d have a lot fewer kids going to bed hungry at night, because tobacco is a proven appetite reducer. We’d have a lot fewer kids running from the police, as their lung capacity would be severely diminished. We’d have a lot fewer kids … well, we’d just have a lot fewer kids period.

“Rather than condemn the tobacco companies, we owe them our blessings for helping to keep our nation’s children off the streets and in hospitals where they’re safe.

“It’s a national tragedy that our children lag behind the rest of the world in math, science and verbal skills. But kids who smoke know their math! I guarantee you that. A child can’t shell out $3.50 for a pack of cigarettes without knowing how to manage her allowance, especially when she’s buying them illegally from convenience store clerks who aren’t exactly rocket scientists when it comes to making change.

“Speaking of science, educational research has long shown that science is best learned through hands-on experiments. Smoking allows children to experience first-hand the amazing physiological effect of ammonia additives in pumping up the bloodstream’s ability to absorb nicotine at an accelerated rate.

“Moreover, because of the walloping buzz this delivers, our children will be learning this important lesson while their mental acuity is at its highest level.

“You want to talk about language skills? Where do you think kids are going to learn words like ‘anaplastic carcinoma’ and ‘thoracic irradiation’ if not from the tobacco industry?

“I want to close with a touching story about a POOR DISADVANTAGED CHILD in my district who lives next to an enormous tobacco farm. The nearest playground is 20 miles away, but you don’t hear him complaining. Why? Because, like a lot of kids, Lefty’s learned that tobacco harvesting equipment is much more exciting to play on than swings and slides.

“Finally, I seek unanimous consent to place into the record these important documents in support of my bill—pictures of my INCREDIBLY CUTE GRANDCHILDREN!”

Return to Vendor

BY ANDREW J. McCLURG

Judging by the passion and vituperation the topic evokes on Internet consumer complaint sites, video rental late fees may be the number one legal issue facing average Americans. The complaints are eerily similar:

“I rented There’s Something About Mary from the 3-day section and returned it exactly on time …”

“I rented There’s Something About Mary from the 5-day section and returned it exactly on time …”

“I shoplifted There’s Something About Mary and Her Sisters from the adult section and returned it exactly on time …”

Much of the ire is directed against Blockbuster, which in June settled a class action over excessive late fees by agreeing to dole out $460 million in discount coupons to almost 40 million customers. The hitch? An $85 late fee for not using the coupon by noon on the following day! Just kidding, Blockbuster.

Consumer advocates have identified two principal causes of late fee disputes: confusing rental policies and intransigent clerks.

Confusing rental policies. Many late fees result from misunderstandings regarding return policies. Industry officials deny the policies are confusing, but check out this 3-day rental provision found in small print on the back of a rental agreement used by a popular chain:

3-day rentals are due back in 2 days, except on weekends when they are treated as 1-day rentals, unless we really need them back in a hurry, in which case you have exactly one hour to fast forward through that sucker; except during Monday Bonus Specials, when 3-day rentals may be kept 5 days, provided said 5-day period begins running on the previous Tuesday. Save time and trouble by conveniently paying your late fees in advance.

Intransigent clerks. “When was the video returned?” is the great imponderable of modern times. Many disputed late fees involve a “he says/computer says” argument over when the customer actually returned the video.

Of course, the truth is that video stores have no idea when videos are returned. This is because, despite the fact that it’s a multi-billion-dollar-a-year business, the best idea the video industry has come up with in 25 years for verifying video return times is the unimpeachable “jam them in the bin” system—also referred to as the “Scanner? What’s a scanner?”-system.

When late fee disputes arise, your fate is in the hands of the highly-flexible video store clerk. For their uncanny ability to never budge under any circumstances, video store clerks should be hired to negotiate U.S. arms treaties. Here’s a typical colloquy:

Clerk: The computer says you owe $4,328.53 in late fees for Tootsie.

You: That’s impossible. I returned that video the day after I rented it—16 years ago!”

Clerk: That’s not what the computer says, which means you must be a despicable liar. Can everyone in line hear me?

You: But I swear, I returned it on time! Look, here’s a character affidavit from my mother, polygraph results showing I’ve never returned a video late my entire life, and a time-stamped surveillance tape of me actually returning the video on time.

Clerk: Would you like any popcorn or candy to go with your late fees?

Of course, there’s always the appeal process to the store manager who, relying on the computer’s expert testimony, will affirm the clerk’s finding of fact that you are indeed a liar.