Law Blog

It’s refreshing to see that sometimes terms in a written contract can actually be honored without the need to go to court.  Or at the very least, they can be honored with only minimal threats from the party seeking relief.

Law school is expensive and just keeps getting pricier.  But if you release a campy 80s rap single and sign a really unfair contract with a record company, who cares about the price for admission?  Why didn’t I think of that?  (Although my musical abilities are only a slight cut above this guy).  Also, I’m pretty sure every contract in the music industry is unfair, so I didn’t need that extra adjective.  Sleaziness seems to come free with a life in commercial music.

Anyway, at least Roxanne Shante… urgh, I mean Dr. Roxanne Shante only had to fight for years and years to get the Warner Music executive who originally signed her to get them to follow through with their promise to pay for her education for life.  I say “only years and years” because a lot of rappers can get really screwed over.

Apparently clauses promising to pay for a music artist’s education, should they choose to continue it, aren’t that weird in the grand scheme of musician contract clauses.  In fact, it’s actually pretty mundane when compared to what other performers ask for — at least in terms of craziness.  I’d rather waste an hour segregating M&Ms than cough up $217k.

Props to Dr. Shante for taking a big corporation to task and getting what was promised to her.  She gets even more respect for sending the right message to teens growing up in this increasingly materialistic era of ours by pursuing higher education instead of trying to parlay her life into a bad reality show.  And finally she gets my ultimate praise by really sticking it to Warner Music and going Ivy League for her PhD.  Her life is a good lesson to everyone thinking of taking advantage of the naïve: stay moral or get stuck with the consequences.

Autism is a bad thing. Most people agree on that. For parents of children with autism, the fact that its causes are not fully understood can add frustration to an already difficult situation.

The highest court in Maryland recently ruled that expert testimony suggesting a link between vaccines and autism cannot be admitted under the relevant legal standard because (1) the witnesses were not qualified to testify as experts on epidemiology, and (2) the principles that the experts relied upon are not widely accepted in the relevant scientific field.

This follows 3 rulings earlier this year by a special federal court set up specifically to handle lawsuits against vaccine manufacturers. In all 3 of those cases, the court found that the plaintiffs, even with a very relaxed standard of proof (preponderance of the evidence – essentially requiring only a showing that the evidence favors the plaintiffs by an iota), failed to demonstrate any link between vaccines and autism.

While the causes of autism are not well-understood, multiple studies have ruled out some proposed causes. Most notably, the overwhelming majority of scientific evidence favors a conclusion that vaccines do not, in any way, cause autism. This has not stopped some individuals from repeating claims about the supposed link between vaccines and autism.

While the causes of autism are the subject of ongoing scientific debate, the benefits of vaccines are not: without question, vaccines have benefited the public health more than almost any other medical invention or discovery. Diseases such as measles, mumps, and polio, which once killed thousands of people (mostly children) per year, are now a distant memory for most of the developed world. Smallpox, which ravaged human populations for thousands of years, has been completely eradicated. Because of the smallpox vaccine, and a well-coordinated, worldwide effort, there has not been a confirmed case of smallpox anywhere in the world since 1978.

This can all change, however, even if a relatively small number of parents, no matter how well-intentioned, decide to stop vaccinating their children. Besides the obvious risks to which they’ve exposed their own children, they are endangering other children, as well.

You see, there are a small percentage of children in every population who cannot be vaccinated, either because they are too young, or they have an allergy to the vaccine. They rely on the immunity of those around them to keep them from being infected. This is a principle called “herd immunity” – in short, if a large percentage of individuals in a population are immune to an infectious disease, those few who are not immune also enjoy some measure of protection, because the disease is unlikely to gain a foothold in the population, reducing the risk that susceptible individuals will be exposed to it. As the rate of immunization decreases, the risk to everyone increases.

There are signs, however, that the anti-vaccination movement represents only a vocal minority. According to LegalMatch case statistics, of all the prospective clients seeking redress for injuries caused by defective drugs or medical devices, none of them has recently claimed autism as their injury.

This is a good sign – frivolous lawsuits linking vaccines to autism (like all frivolous lawsuits), devalue legitimate claims. And there are occasions, rare as they may be, when vaccines do cause injuries – the particular batch could have been defectively manufactured, or the doctor could administer it negligently, causing an infection or other injuries. These injuries deserve redress, but the risks of such injuries do not outweigh the benefits of vaccination.

Yes, it is. The end.

OK, not really.

Frivolous lawsuits are bad. Just about everyone agrees on that, though there’s plenty of room for reasonable disagreement as to what makes a lawsuit frivolous. What we don’t hear about nearly as often are frivolous defenses.

According to the New York Personal Injury Law Blog a defendant in a personal injury lawsuit has sent a demand letter to a plaintiff’s attorney demanding that any reference to “pain” be deleted from the injuries claimed in a lawsuit because “pain is not an injury.”

While it’s true that physical pain is generally an effect of which physical trauma is the cause, the defendants here seem to forget that pain, in itself, can be debilitating. If humans were incapable of feeling physical pain, many injuries which we view as horribly debilitating would be quite trivial.

For example, if you step on a nail, you probably won’t be able to walk correctly for several weeks afterward, even if the wound were somehow guaranteed to heal properly, not become infected, and not cause any permanent damage. It’s the pain caused by such an injury which would make it debilitating.

Based on that, it’s absurd on its face to claim that pain is not an injury. Relatively “minor” injuries (minor in the sense that they have relatively little impact on a person’s overall health and lifespan) can cause severe, long-term pain, which impacts a person’s quality of life, and their ability to earn a living. From this, it seems absurd on its face to argue that pain is not an injury, in the legal sense. After all, tort law exists to compensate the victims of wrongdoing for injuries, and the “value” (really, the cost) of an injury is generally calculated through objectively observable facts, such as medical expenses, lost wages, etc. The cost of pain can, at least in part, be measured by a diminution in a person’s earning capacity, which is an objective measure.

Of course, we also award damages for “pain and suffering” in the abstract – and usually leave the decision of how much to award to a jury, which is the best course of action, as ordinary members of a community, especially those who might have experienced similar injuries, are in the best position to gauge what such an injury is worth.

According to statistics generated from LegalMatch case, of the tens of thousands of personal injury clients who came to the website over the past year, the overwhelming majority describe their injuries in terms of the pain they suffered, such as chronic back pain, neck pain, and headaches, as well as other difficult-to-quantify injuries such as insomnia and memory loss.

According to this defense attorney, have they not suffered any injuries?

I’ve read my fair share of odd cases, but nothing ever brings a smile to my face faster than a frivolous lawsuit.

Apparently people really can sue for anything.  A Detroit planning department employee is suing the city because she claims the strong scents from her co-worker’s cosmetics are preventing her from working.  Further details regarding the facts of the case are limited at the moment, but I’m going to go out on a limb here and say the plaintiff is probably nuts.  The employee is alleging the fragrances in her office are in violation of the Americans with Disabilities Act, which, as I stated earlier, seems pretty nuts.

Let’s just try to break this one down a little, shall we?  I’m assuming the employee is suing based on Title I of the Act since that’s the part that deals with employment.  The relevant part of this section would seem to be that workplace discrimination based on a person’s disability includes among other things “not making reasonable accommodations to the known physical or mental limitations of disabled employees.”

In reading that section, two words jump out to me: reasonable and disabled.  These two terms are very general and open for some board interpretation that I’m sure any lawyer worth his salt could probably spin into a lawsuit.  However, in my opinion, not one that can or should be won.

You see, though “reasonable accommodations” could mean essentially anything that can be done to allow a disabled person to do their job.  The caveat is that it must actually be reasonable, in other words, not nuts.  The employee wants all similar scents to be banned from her place of employment.  Which, to make an analogy, would be like using a grenade to kill an ant.  Both are ridiculously overkill.  A more reasonable accommodation would be to just give her a separate office or even just prevent people who wear cosmetics with scents from approaching her (though even that one is pushing it).

Now even if the employee were to agree to this compromise, she’d still have a much bigger problem on her hands: proving she’s disabled.

Call me old-fashioned, unhip, uncool, or whatever it is kids use to describe people who aren’t with it these days, but I really don’t think a person is disabled just because they don’t like the smell of something.  Barring some incredibly rare allergy that renders this particular employee in some sort of pained state, there’s no way she’d be able to convince a judge (though maybe a jury) that she’s disabled.  The only thing she’d be able to prove is how overly sensitive and litigious people have become.  Instead of wasting the time of the court, she should just learn to deal with the little daily annoyances of life because last time I checked there are a lot of them.

Sorry, I’ll get off my soapbox now.  All I’m saying is that there are a lot of more important issues for the court to decide.  And it’s those types of cases that deserve our great justice system’s attention.

Recently, consumers who bought digital copies of George Orwell’s 1984 for their Amazon Kindles woke up to an unpleasant surprise: every digital copy stored on an internet-connected Kindle was deleted. Apparently, the publisher that authorized the books to be sold for the Kindle never owned the rights to the book in the first place. Amazon found out about this, and decided to delete the books from customers’ devices, to avoid being sued. Customers who paid for the book received a refund.

Besides relishing in the irony of seemingly Orwellian tactics being applied to a George Orwell book, publications that specialize in law, technology, and literature have all speculated about what this means for the future of copyright law, “cloud computing,” and literature itself.

Of particular interest in this fiasco is the doctrine of first sale. Essentially, it is an important aspect of copyright law which allows the owners of particular (lawfully obtained) copies of a work to do whatever they like with the physical object in which it embodies, such as giving it to a friend, or selling it to a used bookstore, from which it can be re-sold. Note that it does not allow someone to make unauthorized copies of a work they have purchased. It only concerns the physical object, not the content.

But what happens when media is bought, sold, and consumed without ever being embodied in any physical form, such as digital media? Can the first sale doctrine be updated to accommodate digital media, or is it destined to become as irrelevant as physical media itself?

Some may be willing to give up the personal property rights that go with owning a physical copy of a work, in exchange for the convenience of being able to obtain the work immediately, and often at a lower price than a physical copy. Admittedly, I have bought digital copies of some of my favorite albums.

While there is certainly nothing wrong with digital media, and it may well be a positive good, on balance, the same cannot be said for the demise of the first sale doctrine.

The first sale doctrine allows for significant price competition in the retail market – it allows copyright owners to dictate the price of copies only when they are first sold – usually by publishers to wholesalers. Once that sale is complete, they have no control over the retail price. This means that more efficient sellers, who are able to keep their costs low, are able to sell copies at lower prices than their competitors, which provides the basis for a competitive marketplace.

Furthermore, it promotes the widespread availability of copyrighted works, even when the copyright owner has stopped selling them. Disney is notorious for this practice; they often stop selling their classic movies for several years at a time, and then re-release it as a special edition. This creates demand through artificial scarcity. Because of the first sale doctrine, it is pretty much assured that you can find a copy of any Disney movie you like, even if it is temporarily out of print. While nobody is questioning a copyright holder’s right to stop selling its products for any reason they see fit, the importance of copies already in existence being freely disseminated can also not be denied.