What's In a Name…For a Future King of Great Britain?

July 22, 2013

Move over, Harry, you’ve just been bumped. As of earlier today, we have a new royal who’s third-in-line for the crown of Great Britain and you’ve been moved down to fourth (not that you care – this just means more time for parties in Vegas).

That’s right. In case your Internet connection hasn’t been working until just now, you may not know that the Duke and Duchess of Cambridge (a.k.a. William and Catherine) had a baby boy today. (Princess Diana would have been a grandmother today.) Following royal tradition, they haven’t released the baby’s name yet so that game gets to continue for a few more days.

And now I get to play!

I’m not an expert on British royalty or all their traditions, but I have been fascinated by their monarchy since I was a kid. When I wasn’t reading about John Carter and the Black Stallion I read my first biography, on Queen Elizabeth I, and I was hooked on those Tudors. Between that and a burgeoning obsession with Princess Di (I even had her haircut!) I became fascinated with the British monarchy (for its entertainment and historical value only – I’m very glad we declared our independence from the monarchy).

Both Queen Elizabeth and Duchess Catherine (the future Queen Catherine) have names closely associated with the Tudors. The Queen is only the second Queen Elizabeth, following in the footsteps of the daughter of Henry VIII who went on to become one of the greatest of the English monarchs (after a very rough childhood, thanks to her father’s ways). And, of course, the first Elizabeth only came into existence because of her father’s fascination with her mother, Anne Boleyn, which led to him divorcing his first wife, Queen Catherine of Aragon, and splitting away from the Roman Catholic Church to marry Anne. (Henry went on to marry two more Catherines, one of whom he subsequently had beheaded. Good thing it’s not as dangerous to be married to an English king anymore.)

William’s name, on the other hand, has another very important connection to English history – and the legal system we know today. While there have been other King Williams, the most important William is William the Conquerer – a Norman who invaded England and became king in 1066. 1066: that’s a date I learned the first week of law school and I’ve never forgotten it. While historically a bit overly simplistic, 1066 and William’s invasion of England are seen as the beginning of the tradition of common law, which we still use in the United States today. Common law is not law based on statutes and regulations passed by legislative or executive bodies. Instead, it’s built up out of judicial decisions, with the reasoning and holdings of those decisions used in future decisions (as precedent).

The goal, both then and now, of common law is to provide certainty to litigants and some consistency across courts and regions. In reality, of course, it’s not perfect, but its lasted almost a thousand years old and is still relied upon (at least in part) by a third of the world’s population.

Anyway, back to baby names…given the historical significance of his parents’ and great-grandmother’s name, what name will William and Kate chose for their son? George is a historically weighty name, but there have been a lot of King Georges. There’s the same problem with Henry. Edward also has a long tradition, but given the Queen’s uncle’s abdication, I don’t think they’ll choose that name. And Shakespeare ensured that we could never think of Richard in a positive light. So I say they forget about impressive names and choose a more obscure kingly name that should be brought back: Edgar. It may be a little too close to Edward for comfort but I’m placing my (fictional) money on Edgar for the new royal highness!

One of These Days, To the Moon!

Josh Gilliland

July 20, 2013

July 20, 1969: A Man walked on the Moon.

Let’s say that again: A man walked on the Moon.

President Kennedy challenged the country to be bold. We answered the challenge, doing what had only been the stuff of dreams since Mankind first looked up at the night sky.

In honor of this significant historic event, let’s celebrate with reviewing the legal issues of sending human beings to the Moon and “Lunar Litigation.”

If I were a NASA Lawyer in the 1960s…

Presidents Kennedy, Johnson & Nixon needed lawyers for many reasons. What would a 1960’s Era NASA lawyer be concerned about?

Government Contracts: Saturn V rockets, Apollo capsules, and Lunar Landers did not build themselves. The entire contract process probably rivaled the complexity of the technical requirements to get to the Moon.

Engineers have the right stuff to design space ships, but the process to order the construction of the ships required help from attorneys.

Assumption of Risk for the Astronauts: Make sure the Astronauts understand the risk they are engaged in doing. That means an employment contract that clearly stated the risks of space flight and going to the Moon. That could include anything from exploding on the launch pad, to being trapped on the Moon, to contracting a “space virus” that could destroy the human race if returned to Earth.

Provided the Original Seven and New Nine all had military or test pilot experience, they understood the that there were risks in flight.

Insurance for the Astronauts: Develop life insurance policies for those traveling from the Earth to the Moon on a rocket that makes slightly less noise than a nuclear bomb going off.

No Keepsakes from NASA: Make sure employees and astronauts understand that hardware developed for the mission belongs to the government.

Former Astronaut Edger Mitchell tried to sell a camera used on his Apollo 14 mission. NASA sued to get it back. United States v. Mitchell, 2011 U.S. Dist. LEXIS 125844 (S.D. Fla. Oct. 3, 2011).

Eminent Domain & Project Apollo

Trailblazing to the moon has made it necessary for the United States, exercising its power of eminent domain, to acquire large tracts of land here on earth. One such acquisition included 654.43 acres owned by appellant Colton, who received as just compensation for the taking an award fixed by a jury in the United States District Court for the Middle District of Florida. The principal issue on this appeal is whether the district court erred, as the appellant contends, in disallowing evidence of enhancement in the land’s value caused by the original establishment of a space facility to which the appellant’s land was later added. We hold that this evidentiary exclusion by the district court was improper and that the judgment must be reversed.

The record before us provides an interesting account of early developments in our nation’s manned lunar landing program, accelerated in May 1961 when President Kennedy called upon Congress and the country to send an American to the moon and back before the end of the decade. The President’s challenge was accepted and, as this opinion goes to the printer, two American astronauts prepare to depart from the moon after successfully landing there and exploring the lunar surface. An initial step in the implementation of this national goal was the selection of a launch site. Officials of the National Aeronautics and Space Administration, after considering various locations, selected Cape Canaveral, Florida, now Cape Kennedy. On August 24, 1961, the Justice Department, acting upon a request by NASA Administrator James Webb, filed in the district court a complaint in condemnation describing a 72,644-acre tract of land needed for the project.

United States v. 2353.28 Acres of Land, 414 F.2d 965, 966-967 (5th Cir. Fla. 1969).

Long Before eDiscovery Cases

The instant case demonstrates once again the paradoxes within the spectrum of the practical application of the computer sciences. At its best, the computer has enabled NASA to send men on lunar missions zooming 238,857 miles into outer space so that they may land softly on the moon and return safely with pinpoint landings despite reentry speeds of 25,000 miles per hour. For computer science application at its worst, Pennsylvania’s Department of Public Welfare (DPW) could not master the less dramatic task of assuring a proper disbursement of checks to 3,502 deserving recipients in the counties of Allegheny, Dauphin, Delaware and Philadelphia.

Brower v. Wohlgemuth, 371 F. Supp. 863, 864 (E.D. Pa. 1974) [Emphasis Added].

What About Those Moon Rocks?

There have been many cases involving Moon rocks. Here is one that even included dinosaurs:

According to the presentence investigation report (“PSI”), Roberts had participated in a criminal scheme, whereby he and several co-conspirators stole lunar samples and Martian meteorites from the National Aeronautics and Space Administration’s (“NASA’s”) Johnson Space Center in Houston and transported these items in interstate commerce for the purpose of selling them and using the sale proceeds for their own enrichment. During the course of the conspiracy, Roberts and some of his co-conspirators stole a 600-pound safe containing “lunar samples from every Apollo mission that landed on the moon, documentation authenticating the lunar samples, Martian meteorites, and other items from NASA/JSC.” After transporting the lunar samples and meteorites to Florida to sell them to purported buyers, Roberts was arrested by undercover FBI agents who had been posing as the buyers. Additionally, in an unrelated case, Roberts, while working as an intern for the paleontologist department of the Utah Museum of Natural History, had possessed in his residence several items of stolen U.S. property, including dinosaur remains and other vertebrate specimens that belonged to the U.S. Bureau of Land Management, the National Forest Service, and the National Park Service.

United States v. Roberts, 155 Fed. Appx. 501, 503 (11th Cir. Fla. 2005).

There and Back Again

I look forward for us to return to the Moon and ultimately Mars. I was technically alive for the final Apollo mission with the Soviet Union. I really wish that mission instead had been used to service Skylab, so our first space station would have still been in orbit by the time Space Shuttle Columbia was launched in 1981.

One of my earliest memories was the roll-out for the Space Shuttle Columbia. My father was in charge of installing the tiles.

I saw the last two Space Shuttle launches. I was glad I could take my father back for the grand finale of the shuttle program.

http://youtu.be/pw96k3i5lpw

It is time to leave near Earth orbit and go beyond where we left off in 1972. The Space Program is a very American adventure. It inspires us to learn science, math and more importantly, dream. It creates jobs and improves technology. Without the Space Program of the 1960s, we would not have had the Computer Revolution of the 1970s.

Fundamentally, the Space Program brings us together as a country. It is time to take another step towards the future.

http://youtu.be/ccCWLJkO5IA

Comedy Law

Jessica_alegalgeek

July 19, 2013

Attorneys Jessica Mederson and Josh Gilliland discuss stand-up comedians and the law.

No part of this recording should be considered legal advice.

Freedom & The Guns of July 1863

Josh Gilliland

July 18, 2013

I was a history geek long before I was a lawyer. I spent a substantial amount of time at UC Davis studying 19^th Century United States History, the diary of John Quincy Adams and the US Civil War.

150 years ago, the very concept of liberty hinged in the month of July in 1863. Here is the breakdown of key events:

July 1-3: Gettysburg

July 4: The Union victory at Vicksburg, lead by Ulysses S Grant

July 11: First Draft in the Union

July 13-16: New York Draft Riots

July 18: The Massachusetts 54th Assault on Fort Wagner

The Civil War

If we were to honor all of the fallen in the Civil War with a monument of names it would be the size of 11 Vietnam Memorials.

The Civil War was caused by eleven states that committed mass treason to nullify a Presidential Election because of their self-proclaimed “right” to own other human beings.

The order of succession was in direct inverse proportion to the population of slaves within the state. With the exception of South Carolina, each state in rebellion had pro-Union troops, making the Civil War a war within each state.

The Civil War had been 80 years in the making since the Constitutional Convention, when slavery was thought to be on the path to extinction. The invention of the cotton gin perpetuated the national sin, leading to multiple crises, from the Compromise of 1820; to the Gag Rule in the 1830s; the 1844 election of James K Polk & the Mexican-American War, which lead to the Compromise of 1850; the Dred Scott opinion in 1857 followed by John Brown & Harper’s Ferry, and finally the war itself after the first shot at Fort Sumter.

For those who argue that the Civil War was about “State’s Rights,” let’s examine the Confederate Constitution. It was nearly identical to the US Constitution, with several key differences:

The President served one six-year term and could not run for re-election;

The President had a line item veto; and

The Confederate Constitution bluntly defended slavery in Section 9(I)(4) with “No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.”

The defense of slavery was driven home with Confederate Vice President Alexander Stephens’ “Cornerstone Speech.” Stephens flatly rejected Thomas Jefferson’s Declaration of Independence that all men are created equal with the haunting statement:

Our new Government is founded upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition.

The only property right at issue in the Civil War was the “right” to own other human beings.

There is nothing more Un-American than such a twisted belief.

And that is why men and women lined up to fight to preserve the U.S. Constitution when eleven states decided they could break the country in two when they could no longer decide the Presidency.

The Hinge of Liberty

The Civil War had not gone well for the North, often due to the lack of audacious generals and bad command decisions. July 1863 was a tipping point.

The three-day battle of Gettysburg had the same number of casualties as the seven years of the Vietnam War. The Union victory at Gettysburg could have ended the war if the Union Army had crushed the retreating Confederate Army. That did not happen. However, the South would never invade a Northern State again.

Vicksburg was another significant loss for the South.

The city would not celebrate the 4^th of July again until after World War II.

Vicksburg was one of the key battles that propelled General Grant to the command of the Union Army.

Grant was not afraid to fight and had done the math that the Union outnumbered the South 4 to 1. In a war of attrition, it was only a matter of time before the North would put down the rebellion.

The first Union draft launched the largest race riot in US History in New York City. The New York Herald published the names of everyone who died at Gettysburg, followed by the names of those who had been drafted. Each were several pages long.

The Irish population in New York City exploded in three days of rioting. Up until that point, African-Americans had been racially depicted in political cartoons and lithographs as tool-welding apes. The Irish who rioted went on a killing spree, including lynching people, burning them alive and beating the faces off of police officers. The exact number of dead is not known, because of the bodies that were dumped in the river.

President Lincoln had to send in troops who had been at Gettysburg to put down the rioting with cannon and bayonet.

While New York recovered from a horrific three days, something happened that changed pubic opinion on July 18 in South Carolina.

The Massachusetts 54 was a volunteer regiment of free northern African-Americans, lead by Robert Gould Shaw. The ranks of the 54^th included the sons of Fredrick Douglas. Shaw himself was the son of Bostonian abolitionists.

Despite their depiction in the film Glory, the 54^th was never deprived uniforms, boots, or supplies. No one deserted. No one was whipped. Moreover, when Shaw learned that his men were to be paid less than white soldiers, it was his idea for them all not to take pay.

Colonel Shaw volunteered the 54^th to lead the frontal assault on Ft. Wagner in South Carolina. Those men marched straight into Hell. From sand dunes to an uphill battle under cannon fire, those soldiers faced bullets that would tear off limbs.

The 54th lost over half their numbers. Shaw was one of them. The Confederates broke the practice of returning dead officers after the battle. Shaw was stripped naked and buried with his men in a mass grave.

The Fort was never taken by force until the Confederates abandoned it months later.

The United States did a massive about face after Ft. Wagner. The story and images of a gallant battle replaced the racist lithographs from just a week before.

William Carney of the 54^th would ultimately become the first African-American to be awarded the Medal of Honor for his heroics in carrying the regimental colors.

It is important to remember that in the years leading up to the Civil War many in the North believed that African-Americans should either be returned to Africa or colonized in South America. Those unrealistic ideas vanished after Fort Wagner, because people did not see the men of the 54th as African-Americans, but as fellow Americans.

President Lincoln was able to argue that those willing to fight for their country should be able to vote in it because of the sacrifice of the Massachusetts 54^th.

We should all remember the Sesquicentennial of July 1863. Thousands of Americans were killed to preserve freedom in our country.

The key events of the first 18 days of July 1863 have to be analyzed together for their significance. All are connected. The sacrifices of many ultimately would give us the 13^th, 14^th and 15^th Amendments and the country we know today.

Kramer vs. Kramer (aka Fictional Characters vs. Their Real Life Inspirations)

Jessica_alegalgeek

July 18, 2013

I love stand-up comedians (Chris Rock, Kathleen Madigan, Jim Gaffigan…) but had never heard of comedian Mike Maron until Louis CK talked about his podcast on Howard Stern. And then Stern interviewed Maron when he was promoting his new show on IFC. It’s called Maron and it’s a fictionalized account of his life. Maron is one of those stand-up comedians who came up with a lot of the comedians we all know – Louis, Jon Stewart, and Janeane Garofalo – but he never made it big (although he’s getting closer now). And he’s angry about that. Or was, anyway. He’s getting past it now, apparently, and spends a great deal of time on his podcast apologizing to the comedians he was mean to out of jealousy.

So I just finished watching the first season of Maron. In it, Maron plays himself, other actors play fictional characters, and some actors play fictionalized versions of themselves. And he references characters from his real life – his dad, his ex-wife, etc. His relationship with some of these characters – on and off screen – is pretty toxic, so it made me wonder…what happens when real life people are depicted as “fictional” characters in shows or books?

There are classic examples of real people who were used, in “fictionalized” form, in TV shows and movies. In his masterpiece, Orson Welles based the citizen himself in Citizen Kane on William Randolph Hearst. Hearst didn’t bother to sue, however, choosing to use his considerable wealthy and power to try to stop the movie from being made or distributed at all (although he wasn’t successful, thank goodness).

In that more recent classic of the small screen, Seinfeld (good lord, that makes me feel old!), both the Kramer and Costanza characters were based, at least in part, on a real life Costanza and Kramer. Kramer didn’t sue for the inspiration he provided, although he did send a list of demands to Castle Rock for the use of his name.

The real-life Costanza, on the other hand, did sue. Costanza v. Seinfeld, 693 N.Y.S.2d 897 (N.Y.Sup. 1999). But just like his fictional counterpart, Costanza had nothing but bad luck. The court not only found that his claims were either baseless or not allowed under New York law, but also held that his suit was so frivolous that he and his attorney each had to pay a sanction of $2,500 to the defendants.

Other plaintiffs in similar situations usually don’t fare any better. In a case against the writers and producers of CSI, for example. the plaintiffs filed a defamation claim because of the actions taken by characters on an episode of CSI. Tamkin v. CBS Broadcasting, Inc., 193 Cal.App.4^th 133 (Cal. App. 2011). In the rough draft, the TV characters actually had the same names as the plaintiffs (the names were changed before the show was filmed) and both the fictional and real male character worked in the real estate industry. The court ruled, however, that even if the depiction was defamatory (the male character was a hard drinker and into kinky sexual acts), the question was whether a reasonable person would understand the characters to actually refer to the plaintiffs. The fact that the real and fictional characters shared both first and last names (and that the wives in both instances had the same name) was not enough. Even the similarity in the area of work for the fictional and real characters was not enough. Nor was a generally similar physical description enough. Instead, such specific details as a special birthmark, birthplace, children’s names, educational background, or unique career were needed to assist a reasonable person to recognize that the fictional character is actually the real-life plaintiff.

In another case, the parties argued over whether the supposedly defamatory actions taken by a “fictionalized” character in a book could reasonably be understood as stating actual facts about the real person. Smith v. Stewart, 660 S.E.2d 822 (Ga. App. 2008). The book at issue contained the usual disclaimer, of course, about the novel being a work of fiction, but the appellate court still said that such a disclaimer (or the humorous nature of a publication) will not protect it from a defamation claim “if the allegedly defamatory statement could [] be reasonably understood as describing actual facts about the plaintiff or actual events in which he participated.” In this instance, the plaintiff had a small measure of success because the appellate court found that there was a genuine factual dispute over that issue and so it sent the case back to the lower court.

In general, however, the courts seem reluctant to hold creative people (comedians, authors, screenwriters, etc.) liable for drawing inspiration from their real lives. And, as a fan of comedians (and books, TV shows, and movies), I appreciate that. I just have to hope I never tick off a budding comedian!

Bloomberg Law on Superman's Legal Duty to Save Jonathan Kent

Josh Gilliland

July 15, 2013

Great video with attorney James Daily’s analysis on Superman’s legal duty to save his father in Man of Steel.

I agree with Mr. Daily’s legal analysis that Clark Kent did not have a legal duty to save his father. While that sounds extremely harsh, part of the theme in Man of Steel shows both of Clark Kent/Kal El’s fathers sacrificing themselves for their son.

From the legal point of view, Jonathan Kent made the choice himself to go back to the car to save the dog. Clark at no point started to rescue his father or left his father in a worse position, such as the classic issue of the rescue swimmer who abandons a rescue.

Check out the video to see more of Daily’s analysis.

There are many other legal issues in the film. In a prior post, I addressed the issue of Clark Kent visiting his minister in Would Superman Be Protected By the Clergy Privilege? There also would be a significant legal battle rivaling Superman and General Zod’s over insurance coverage for the destruction in Metropolis.

Vote The Legal Geeks for the ABA Journal Blawg 100

Josh Gilliland

July 13, 2013

Please nominate The Legal Geeks for the ABA Journal Blawg 100.

We have had a great first year and would appreciate your vote to put us on the ABA Journal Blawg 100.

For any lawyer who is a fan of Doctor Who, Buffy the Vampire Slayer, Star Trek or John Carter of Mars, we would appreciate your vote.

There are many excellent attorney bloggers who put in significant time to share their knowledge on the subject matter they are passionate about. You can nominate multiple blogs for the list, you just need to complete a separate nomination.

Voting Information:

Blog: The Legal Geeks www.thelegalgeeks.com

Twitter: @TheLegalGeeks

Nomination Link: http://www.abajournal.com/blawgs/blawg100_submit/

1...118119120...137 Page 119 of 137