Law Blog

Congress recently passed new product safety regulations which require United States manufacturers and importers to test toys and nursery products for levels of lead and phthalates, and to comply with a number of strict regulations.  The Consumer Product Safety Improvement Act also expands the size and budget of the U.S. Consumer Product Safety Commission, shields whistle-blowers who expose defective products, and permits state attorney generals to remove hazardous products from stores.  Further, the law raises the maximum safety violation fine to a whopping $15 million.  The law also creates a public database, from which consumers can learn about children’s product safety hazards and manufacturers can respond to complaints and clarify false information.

While efforts to make our products safer are obviously commendable, some of the law’s measures are already undergoing fierce criticism.  First, the law allows states to impose their own, stricter standards.  This means manufacturers will be forced to comply with up to 50 different standards – a truly daunting task. 

Second, some worry that the costs of compliance will simply be too great for all but the U.S.  largest manufacturers.  Larger companies with in-house labs can likely conduct their own tests; however, smaller companies that need to send their products out for testing may not be able to bear this financial cost.  Moreover, the law mandates each different style of toy be individually tested; and most small companies don’t sell sufficient stock of a single product style to offset this cost.  Additionally, small U.S. companies may have trouble keeping up with marking provisions, which require products be permanently marked with information specifying where, when, and by whom the product was manufactured. 

If smaller U.S. children’s product manufacturers go under, will we be left with only the mass-produced products from China, which, ironically, have been the source of so much trouble in the past?

With the Super Bowl just days a way, it’s hard not to get in the Football spirit.  Hold on there!  A recent case out of San Francisco highlights something many sports fans around the country have been tolerating for years: pat down checks at sporting events. To some in the post 9/11 world it is a necessary evil. It even says it on the back of your ticket: come to watch the game, and we will search you. To plaintiff and 49er fan Daniel Sheehan, however, the time has come to put a stop to it.

The term “pat down” comes from the common police procedure of frisking suspects on the outside of their clothing for weapons. If police have a reasonable suspicion that a suspect is armed and dangerous and has committed a crime, the police can stop and frisk.

With the threat of terrorism, the pat down search has become more and more common amongst private citizens and businesses. Almost every major sporting venue regularly conducts pat down searches on its patrons.

According to the original court documents that threw out Mr. Sheehan’s suit, they can do this because Mr. Sheehan and others agree to the pat down when they purchase their tickets. This, coupled with potential loss of life that can be spared by conducting relatively inconvenient pat downs, furthermore led the California Court of Appeals to deny Mr. Sheehan’s appeal. He has now taken the matter up with the California Supreme Court.

Although Mr. Sheehan may be on to something when he says the 49ers are more worried about fans sneaking in beer rather than bombs, Mr. Sheehan and others also know that stadiums would face a much bigger problem if they did nothing. But what about places other than football stadiums? Could Wal-Mart greeters turn into Wal-Mart feelers?

At its most basic level, people can’t just touch you if they feel like it. That could be a battery. Even an unwanted hug or slap on the back could be a battery. If you walk into your local cafe and the barista starts feeling your pockets for no reason, feel free to throw your iced coffee at him.

But if there is a sign on the door that says “if you enter, you will be searched,” then the game changes. Between private citizens and businesses, there are no 4^th amendment unreasonable search concerns. Much to the consternation of Supreme Court Judges like Antonin Scalia however, there may be privacy concerns. Most of the concerns go away the minute you know you will be searched and walk in, but a businesses ability to safeguard the safety of itself and its customers can only go so far. Wal-Mart, for instance, can zoom in on you as much as it wants with its cameras, but would never be able to strip search you just for walking through the front door. (And they would go out of business anyway). 

Will society ever get to the point that you need to pop your trunk to drive into the Ikea parking garage? Probably not. But it is a common misconception to believe that the same constitutional rights apply to both police conduct and the transactions of private parties.

With that said, and now that you’ve read this piece, can you empty your pockets for me?

Traditionally, it was assumed that teens accounted for most out-of-wedlock births.  However, the National Center for Health Statistics reports that the teen birth rate in the U.S. has declined to an all-time low, while unwed women in their 20s are increasingly having children.  These figures reflect the fact that more people in America marry later in life or cohabitate with their significant other without taking marriage vows at all.

Out-of-wedlock births have been on the rise since the late 1990s.  There were over 1.7 million households consisting of unmarried couples with children in 2004, compared with just 200,000 in 1970.  According to a report conducted by the Pew Research Center, almost 37% of children in the U.S. are born to unmarried women, and 47% of adults between the ages of 30-50 have cohabitated with a significant other at some point in their lives.  Currently, approximately 50% of children are born to unmarried, cohabitating couples, while in 1993, only about 33% were.

LegalMatch statistics, compiled from online intake reports completed by respondents across the nation, support these numbers.  According to 2008 LegalMatch case data, 40% of couples involved in child custody disputes are living together and have never been married to one another.  About 12% of respondents (comprised of men and women) chose “other” to describe their relationship status; a significant number of these “other” respondents stated that they are cohabitating or have cohabitated with their child’s other parent in the past, but never married him or her.  About 9.5% of respondents answered that they are separated and haven’t yet filed for divorce, while 7% stated that they are divorced and now married to someone else.  Finally, 6.7% stated that they are divorced and they, as well as their spouse, are living alone. 

Notably, fathers aren’t necessarily absent from the homes of unwed mothers.  A 2002 report conducted by the National Center for Health Statistics showed that about 20% of new mothers under age 20 were unmarried yet cohabitating with the father of their child at the time of birth. 

While younger adults have expressed less moral concern over out-of-wedlock children and cohabitation, many older adults have expressed significant concern over these trends.  Perhaps as part of a backlash, Arkansas and Utah have expressly barred unmarried couples from adopting, but these statutes may reflect a prejudice toward homosexual parents rather than any bias against unmarried couples in general.

The state of Illinois will become the 4^th state to require ignition interlock devices in the cars of first time DUI offenders. (Thanks to CrimLaw for the story). These devices are essentially portable breathalyzers which require a breath test result below a certain amount to turn on the vehicle. While driving, the devices require subsequent tests to continue operating the car. If the driver fails, the device instructs the driver to pull over and stop, and the car is then disabled.

The move is controversial due to the invasive nature of the devices, but there is something that critics of the devices nonetheless admit: they work. The devices also may have a predictive function, allowing courts to better foresee repeat offenders. According to a study in Alberta, Canada, there was a strong correlation between the proportion of failed breathalyzer tests and an offender’s chances of being convicted of a DUI again. A California study showed that within 120 days of having the interlock device installed, first time offenders were at lower risk of having an accident than those without the devices.

But what about the 1.5 million people arrested for their first drunk driving offense each year? Ignition interlock devices may prevent a second occurrence, but too often it is the first offense that ruins a life and ruins a family. Is there a way to reduce this number?

Although preventing repeat DUI offenses is important, spotting and treating the warning signs of alcohol abuse early could help lower the amount of intoxicated drivers on the road. According to National Statistics reported by the California DMV, over 75% of drunk drivers were either frequent drinkers or alcoholics. Short of a Minority Report-esque future however, how can courts prevent these people from committing their first DUI defense?

Some, if not most, of first time offenders with alcohol abuse problems must have a past criminal history related to alcohol or drug use. Across the country, drug courts already address drug use as a health problem by focusing their efforts on rehabilitation rather than punishment. Hybrid DUI/Drug courts for repeat offenders boast recidivism rates as low as 4%, a startlingly low number compared to national averages. These programs prove that addressing alcohol abuse is an effective means of preventing future DUIs.

Although these hybrid DUI/Drug courts are for repeat offenders and offer programs far more invasive than an ignition interlock device, their underlying principle is the key: treat the underlying behavioral health issue of alcoholism and irresponsible alcohol use. Perhaps a solution to curbing first time offenders, therefore, is the recognition that a lesser offenses, such as a minor in possession or public intoxication, can be warning signs of a future propensity for something such as a DUI. Many states already offer various rehabilitation programs for these offenses. Many also do not, and not much scholarship exists on the effectiveness of those that do. If statistics showed a significant correlation between certain past offenses and DUI convictions, steps can be taken in the sentencing and rehabilitation of these lesser crimes to try and address future alcohol abuse.

This is not a call for harsher penalties on minor offenses. Instead, courts should take a more sophisticated approach with sentencing that focuses on alcohol dependency and behavioral issues. In many ways, extending the drug court paradigm further to more alcohol related offenses (although perhaps not in as invasive as that for repeat DUI offenders) may nip the greater DUI problem in the bud.

Homeowners aren’t the only people affected by the foreclosure crisis.  Increasingly, renters who have dutifully paid their rent are being evicted from their apartments because their landlords face foreclosure.  In fact, over the last several months, as many as 70,000 renters have confronted foreclosure-related eviction.

Recently, government-run mortgage finance company Fannie Mae promised to assist tenants by signing new leases with those living in Fannie-owned properties that have been foreclosed.  Under the proposed plan, renters will be granted the option to lease month-to-month on foreclosed properties until the property is resold.  Fannie’s actions mark the first nationwide attempt to save renters caught in the mortgage crises.

While it’s a little disconcerting to see Fannie effectively become our national landlord, the mortgage behemoth’s actions may encourage private lenders to enact such programs; further, lawmakers may be persuaded into enacting more comprehensive relief measures. 

Still, there are potential problems with Fannie’s plan.  First, because the government lacks incentive to maintain rents at market rate, taxpayers may ultimately subsidize below-market rentals.  Second, government may waste taxpayer dollars because it lacks the necessary experience and/or infrastructure to manage these rental properties efficiently.  Third, Fannie’s action prevents these foreclosed properties from being sold on the open market, perhaps exacerbating the housing downturn and economic recession. 

While some states such as Minnesota have passed stricter laws to protect tenants from foreclosure, other states are dragging their heels.  For now, here’s some advice for prospective and current tenants.  Existing tenants should be wary if they suddenly become inundated by advertisements from local bankruptcy lawyers – this indicates the owner may be facing foreclosure.  Prospective tenants should perform a credit check on a property owner.  Also, look out for default or sheriff sale notices posted on the property (and don’t take the owner’s word, if he says things are “under control”). 

Further, check public records online or in your local county records office to see if the owner is failing to make payments or the property is in foreclosure; and while you’re at it, check to see if the owner owes property taxes or association dues – both clues that he may owe mortgage payments as well.  You can research your local foreclosure laws online too.  If you don’t have the time (or patience) to perform such due diligence, at least make sure to watch for a landlord who asks for an unusually high deposit or a number of advance rent payments.