Law Blog

With so many controversial propositions on the ballot in California’s November election, it was easy to overlook Proposition 9, also known as the Victims’ Bill of Rights Act of 2008 or Marsy’s Law.  Prop 9 was passed by just over 50% of voters, despite wide opposition from many groups, including the ACLU, the Democrat Party, the teacher and firefighter unions, all major state newspapers, and even the Los Angeles District Attorney’s Office. 

Opponents take issue with many of Pro 9’s provisions.  First, by requiring prosecutors to notify crime victims’ families at each stage of proceedings, it may create huge new public liability.  Specifically, under Prop 9, the District Attorney and sometimes judges must seek victims’ opinions prior to deciding which charges to file, whether or not to let a defendant post bail, which plea agreements the prosecution may accept, and what probation conditions to impose. 

Prop 9 allows crime victims’ families, who are often (understandably) filled with a desire for vengeance, to impact a system that strives to be impartial.  Should these biased individuals who usually lack a firm knowledge of police, court, and prison procedure really be allowed to exert such a strong influence on the criminal justice system?  Prop 9 may also cause the District Attorney to more vigorously pursue those cases involving the most tenacious families, leaving victims with less vocal or connected families to endure a lesser standard of justice.

Additionally, Prop 9 may be a waste of time – and money.  First, some say it merely reiterates laws already in place.  For example, judges regularly slap victims’ attackers with restraining orders.  And California already passed a “Victims Bill of Rights Act,” which guarantees people the right to notification of and the right to present at sentencing and parole hearings; the Act also orders offenders to pay victims restitution.  Moreover, opponents claim that the California Supreme Court will likely strike down Prop 9 because it fundamentally overhauls the prosecutor’s role within the criminal justice system by making the D.A. represent crime victims rather than the state.  By doing so, Prop 9 could muddy criminal prosecutions by converting victims into independent parties who can oppose sentences and refuse to comply with defense attorneys’ requests. 

Finally, implementing Prop 9 is simply not feasible during this time of financial crisis.  Not only is California’s budget strained, the state prison system is in crises.  Recently, the feds ordered California to spend $8 billion to fix its ailing prison medical facilities to conform to federal standards.  By imposing tougher parole eligibility requirements and severely limiting early releases while California prisons are at 200% capacity, Prop 9 just doesn’t make sense.

While Prop 9 was enacted with good intentions, California cannot afford to implement a measure which will ultimately fail to serve its intended purpose while unfairly burdening an already over-stressed budget.

Remember all those huge tobacco settlements? Those were the days… oh wait they’re still around! The Supreme Court recently heard arguments-for the third time-in a tobacco case stemming all the way from a 10 year old $79.5 million jury verdict against Philip Morris in Oregon. A lot has happened since then-Phillip Morris has changed its name, we’ve had three presidents, and the Oregon Supreme Court has twice thumbed its nose at United States Supreme Court rulings instructing Oregon to overturn the verdict. Naturally this doesn’t sit well with The Brethren.

The original $79.5 million in punitive damages was awarded in 1999 to the widow of a man who died from lung cancer. The suit alleged the usual cigarette company shenanigans: Phillip Morris denied smoking caused cancer, denied that it was addictive, and denied that the sky was blue. Since then, new punitive damage guidelines have been handed down and the Supreme Court has twice told the Oregon court to overturn the ruling. Oregon’s response? “Thanks for your concern but take a hike.”

Well that wasn’t exactly what they said, but it was close. The Oregon Supreme Court’s runaround is an exercise in what I see as classic judicial decision making; coming up with a ruling and then justifying it after the fact. Whether one agrees with a $79.5 million punitive damages award (most of which is interest), all too often I read cases where the argument is clearly tailored to satisfy the conclusion, not vice versa.

In this instance, the Supreme Court’s first argument that the damages award was excessive was ignored; the court said that the award met the limited criteria for exceeding Supreme Court standards and essentially ignored the ruling. The second time around when the ruling was challenged due to faulty jury instructions, Oregon said that the issue was state law and that the Supreme Court had no business sticking its nose where it didn’t belong. In both instances the Oregon Supreme Court could have made these things clear when it first heard the case, but of course didn’t bring them up until they were necessary to deflect the Supreme Court’s influence. At least that’s what Chief Justice Roberts thinks.

The third time is a charm (or so hopes Phillip Morris). The Supreme Court (the one that Oregon has to listen to) is now considering how to be a responsible parent and tell its children how to behave. The latest tactic would be re-examining the issue that got us here in the first place: excessive punitive damages that grossly outweigh actual damages. Chief Justice Roberts advanced the option as a way of avoiding making up a rule to ensure that state courts behave in the future, which would also operate as a very public rebuke of the Oregon justices.

The alternative would make Oregon the kids that ruined the party for everyone else, definitely ensuring the Oregon Supremes would be very unpopular during lunchtime recess.

Recently, Wolfe Law Group brought a lawsuit in the U.S. District Court for Eastern Louisiana, asserting that Louisiana’s new advertising rules for lawyers violate the First Amendment right to commercial free speech.  The new rules, which will be the most severe in the country, restrict lawyers’ communications on blogs, online bulletin boards, and other online forums.  The new attorney advertising rules will also forbid lawyers from referencing past successes, forbid nicknames or slogans that imply a capacity to get results, and forbid re-enactments, endorsements from actors, and client testimonials.  Additionally, the new rules designate a committee to review advertisements and authorize sanctions for lawyers found in violation of provisions. 

Why did Louisiana draft these new rules?  Officials say they will “protect the public from misleading ads and preserve the intergrity of the legal profession.”  But was there evidence consumers were being harmed, or were the rules “motivated solely by a general distaste for certain forms of lawyer advertising and by hostility toward lawyers who assist injured consumers“?

In a previous case, the U.S. District Court for the Northern District of New York found similar advertising rules banning nicknames, mottos, client testimonials, and internet pop-up ads unconstitutional.  Specifically, the court found that the state failed to show the lawyer advertising rules were necessary to assist consumers, and the rules were not narrowly tailored to effectuate the state’s asserted purpose.  Furthermore, the FTC has expressed opposition to these types of restrictions on speech.  Yet, the overall trend among state bars is to impose greater restrictions on lawyer advertisements. . . .

As one astute blogger pointed out, “One wonders if federal regulation of legal marketing will ever overtake the state-by-state model currently saddling the profession. So many firms have so many offices across so many state lines that the old regulatory model hardly makes sense anymore.”

If we do end up with uniform regulations, I hope they don’t unfairly restrict blogs, which provide consumers with uniquely valuable information about lawyers.  Without access to blogs, consumers can still rely on referrals or choose lawyers based on their credentials; however, blogs give consumers a glimpse into prospective lawyers’ thoughts and legal reasoning.  This type of information should not be censored.

Lori Drew’s jury is speaking to the press, and some are not happy. The forewoman of the Jury in Lori Drew’s trial gave this interesting quote to Wired’s Threat Level blog: (Thanks to Volokh for the story)

“The thing that really bothered me was that [Drew's] attorney kept claiming that nobody reads the terms of service,” she said. “I always read the terms of service…. If you choose to be lazy and not go though that entire agreement or contract of agreement, then absolutely you should be held liable.”

Quick question: did you read the terms of service for this website? Did you read the terms of service for your email carrier? A forum or blog you just posted on? Google? And did Judge Wu not inform his jury of the difference between being “liable’ and being found “guilty?”  The juror goes on to say that she was disappointed with only securing misdemeanor verdicts, noting that if more malicious sounding text messages had been offered into evidence, it would have been easier to convince the entire jury that Drew’s conduct rose to the level of a felony.

First of all, I stand by my earlier comments when this trial ended that assigning criminal culpability to private contracts is kind of, well, crazy. What you and I go to jail for should always be written by legislators, not corporate attorneys or over zealous intellectual property contract lawyers. Although what Lori Drew did was heinous, let’s not go down this road to bring her to justice.

This also adds another layer to the debate. Namely, how much emotion and back-story should be considered acceptable in these kinds of cases? The juror here stated “trust me, I was so for this woman going away for 20 years,” and throughout the article appeared very moved by the clearly tragic consequences of this online hoax. The defense, for their part, tried their best to keep evidence of the suicide out of the trial entirely, under the (reasonable) argument that it would be more prejudicial than probative to whether Lori Drew actually committed a crime.

Lori Drew was not on trial for causing a suicide or for murder, but that is what this amounted to. How much of the verdict here was retributive rather than based on the law and the facts? Time will tell, as this will be appealed to the 9^th circuit court. (And from there possibly to the Supreme Court, who are not very fond of the 9^th circuit.) Although Lori Drew’s alleged actions are outrageous and deserve contempt, are they federal crimes? If the “act” being criminalized here is not following a website’s terms of service, I have to say no. Let’s keep those violations in the realm of “liability,” not “guilt.”

Lori Drew, the mother whose Myspace shenanigans led to the suicide of 13 year old Megan Meier in 2007, was recently convicted in federal court with accessing protected computers without authorization, a misdemeanor. She was also acquitted with conspiracy and accessing protected computers to commit a tort, felonies that carry a potential sentence of 5 years each.

After Lori Drew’s alleged involvement in the online hoax surfaced, her advertising business folded. Her private information was plastered all over the internet. She was forced to leave the neighborhood after her neighbors shunned her. Missing from the picture, unfortunately, were any sort of criminal charges. Until now.

The government contends that Drew violated Myspace’s terms of service (TOS) by creating the fake “Josh Evans” profile. This gave Drew “unauthorized access” to Myspace servers across state lines, a federal crime generally used to prosecute computer hackers. Furthermore, since Drew did so with the intention of harassing a young impressionable teenager, the government also contends that she was guilty of gaining unauthorized access in order to inflict a tort; namely, intentional infliction of emotional distress. Curiously tame charges for the most hated mother in America.

Legal scholars worry that these charges may turn online TOS agreements into de facto criminal statutes. Such a strange result risks undercutting basic due process guarantees. There is a wide variety in online TOS contracts, and it would essentially be up to site administrators whether someone breaches the terms of service and thus breaks the law.

There are also practical concerns; how many people use their real names online, particularly on Myspace? Isn’t one of the benefits of online identities the ability to remain anonymous?

This may be the one of those cases where no law seems to encompass a clearly wrongful act. In such circumstances it is routine for prosecutors to use existing laws in unique ways to bring wrongdoers to justice. What balance will be struck in this case’s inevitable appeals? Unfortunately the geologic timescale of the criminal justice system may make us wait a long time for any answer. In the meantime, you may want to consider revisiting your “Studman_69″ Myspace profile.