Monthly Archive for April, 2011

Texas Trying to Retake Title of “Most Regressive State” from Arizona

Just about every state in the United States, even if it does not allow same-sex marriage, allows transgender individuals who live full-time as the gender with which they identify, and (in some states) undergo gender reassignment surgery to legally change their gender. This allows them to marry people of the opposite gender, whether or not the state authorizes same-sex marriage.

Two years ago, Texas became one of the last states in the country to adopt this rule. However, some Republican lawmakers in that state want to turn back the clock.

That’s right. Some Texas lawmakers actually want to take away a marriage right that has existed in the state, with no apparent consequences, for two years. Many advocates for transgender rights are, understandably, extremely worried. They’re particularly concerned that the bill could be interpreted as nullifying existing marriages in which one or both of the partners are transgender.

If this law is passed, the results could be tragic. The article linked above points out the case of Nikki Araguz. She was born biologically male, but all her life identified as female. She married a man – a volunteer firefighter – before she underwent a sex change operation. As far as both of them were concerned, it was a heterosexual marriage. The law was on their side, too. She underwent her final gender-reassignment operation a few months after they were married. Obviously, her husband knew all of these facts, and was presumably fine with it, or else he would not have married her.

About a year ago, her husband was tragically killed in the line of duty. As his legal wife, Nikki stands to inherit his $600,000 estate. However, her husband’s family is suing, claiming that she cannot inherit under state law of intestacy, because, as far as the law is concerned, she was in a same-sex marriage, which is invalid in Texas. They’re arguing that they’re entitled to inherit under Texas’s intestacy laws.

If this bill passes, we can probably look forward to many more cases like this.

Now, regardless of whether or not you think transgender people should be allowed to get married (though, to be perfectly honest, I can’t see how anyone could be opposed to it), you should still be able to see the major practical drawbacks that come with rolling back a marriage right.

For example, when Proposition 8 passed in California, banning same-sex marriage after it had been legal for several months, a whole new round of litigation began: the California Supreme Court had to decide if same-sex marriages performed before the ban took effect were still valid. It ended up holding that they are. However, this created a great deal of uncertainty in the meantime. And, if the divorce rates for same-sex couples are roughly the same as that of heterosexual couples, we can probably expect, in the coming years, a few thousand (out of the 18,000 whose marriages are still valid) same-sex couples to file for divorce. In California, this probably won’t be a problem, as their marriages are still valid. The process for divorce will be the same as for anyone else.

However, I’ve blogged before about how other states that do not allow same-sex marriage will also not allow same-sex married couples who have moved to such a state to get divorced. This leads to costly and time-consuming disputes over marital property and inheritance. From government finance standpoint, this makes no sense, as it costs the courts (and, by extension, the taxpayers) a great deal of money. And from a broader economic standpoint, these unnecessary disputes consume private resources (money, time, and energy) that could be far better spent on more productive endeavors.

There are plenty of other practical reasons to believe that this is a bad idea. The fact that almost every other state allows marriages between a transgender person, and a person who is legally of the opposite sex will make Texas, the second-most populous state in the country, a major outlier on this issue. Considering the fact that Texas is a major economic center, and that many families relocate there for jobs, this could create problems for married couples in which one or both of the spouses is transgender, if one of them receives a job offer in Texas.

Obviously, if they have major concerns about the validity of their marriage in their new state of residence, they will probably think twice about moving. This might make it difficult for Texas companies to hire the most qualified applicants.

All practicalities aside, I also happen to believe that this bill is just plain wrong. Some people deny the existence of gender dysphoria (identifying more closely as a member of one’s opposite biological sex), despite the fact that most psychologists, years ago, concluded that it is a real thing, and that a person can legitimately identify as a member of the opposite sex, and that living as a member of that sex (possibly including gender reassignment surgery) is the most effective way to deal with the issue. Even if you deny the existence of this condition, the fact that virtually every state in the country has acknowledged its existence, and adjusted its laws accordingly. You have to admit that it would create huge practical problems for a state as large as Texas to roll back the clock.

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Yet Another Reason to Secure Your Wi-Fi Network: Child Porn Charges

By now we all know that privacy and the internet mix just about as well as water and BP.  Previously we have blogged about privacy concerns and technology, specifically how police need a warrant to search e-mails.  But did you know that you could get accused for internet activity that you didn’t even do, or weren’t even aware of?

That’s exactly what happened in a recent New York case regarding unsecured wi-fi internet connections and privacy rights.

In Buffalo, New York, police raided the house of a man because they suspected he was downloading child pornography.  After viewing the man’s wi-fi internet activity, they believed that he might be responsible for the downloads, which were traceable to the user screen name “Doldrum”.

It turns out he wasn’t “Doldrum” at all- after further investigation, the police discovered that Doldrum was actually a neighbor who had been mooching download time off of the man’s unsecured wireless wi-fi.  In this case, the man was found to be innocent.  However, the police stated that the unfortunate situation might have been avoided if he had protected his internet connection with a password (which of course he didn’t).

On a much broader note, the Buffalo case does raise some very relevant issues regarding wi-fi usage and citizen’s privacy rights.  That is, do the police have the right to obtain information from unsecured wi-fi internet activities?  If you are using a neighbor’s unsecured internet connection (which is completely commonplace nowadays), who is responsible for activities such as illegal downloads?  As this case illustrates, it can initially be difficult to tell who is responsible for what when it comes to openly shared and unsecured wireless wi-fi connections.

Just a quick refresher on our privacy rights:  according to the U.S. Constitution, we all have the 4th Amendment right to be free from illegal searches in places and things in which we have a “reasonable expectation of privacy”.  If a reasonable expectation of privacy exists, then police must first obtain a warrant to conduct a search.

So the question now becomes, when using someone else’s unsecured wi-fi connection, do we have a reasonable expectation of privacy?

Regarding the use of unsecured wi-fi internet connections, courts have held that we have little to no expectation of privacy.  What?  Is that surprising?  In a 2010 Oregon case, U.S. vs. Ahrndt, defendant John Henry Ahrndt was also found guilty for downloading child pornography using his neighbor’s unsecured network  (case summary here; click here for a nice analysis of the case).  Ahrndt unsuccessfully tried to argue that his privacy rights were violated when the police rummaged through his internet activity.

The court in Ahrndt compared unsecured wi-fi connections to cell phone conversations.  There the court stated that cell phone users have almost no reasonable expectation of privacy because cell phone calls can easily be intercepted.

Similarly, an even lesser degree of privacy expectation exists for wi-fi connections not secured by a password.  Not only are unsecured wireless wi-fi networks easily intercepted, they seem to almost invite outside users to use the network.  It’s as if the words “unsecured network” translate into, “go ahead, feel free to use me”.

The court in the Ahrndt case also commented on other data such as shared iTunes files (Ahrndt had saved the files using iTunes).  Using some pretty colorful descriptions, the court stated that “when a person shares files on iTunes over an unsecured wireless network, it is like leaving one’s documents in a box marked `take a look’”.  So, we don’t really have a reasonable expectation of privacy in using any unsecured wi-fi, and especially not in shared files.  Duh.

Now, some might argue that the average person would reasonably expect that their internet activity is private.  It has been pointed out that securing your wi-fi with a password is not exactly all that easy.  Although wireless routers come with instructions on how to password-secure your connection, for some reason many people can’t actually figure out those instructions.  Many are not even aware that you can protect your wi-fi with a password.

That’s a compelling argument, but I don’t think it would survive as a defense in court if the police come at you with evidence of illegal internet activity.  And that’s exactly what happened in both the Buffalo case and the Ahrndt case.  Neither of the responsible culprits had any privacy expectations when they downloaded child pornography using another person’s unsecured connection- and that’s why the police were able to nab them.

So the moral of the story is- well, a few points:

1)      Please do password-protect your wireless wi-fi.  While you might not be doing dirt on your connection, one of your neighbors or a person sitting in a car near your home might be- and you just might get caught up in the blindfolded, long-armed sweep of Lady Justice as she does her thing.

2)      Stop committing heinous internet crimes (I’m talking to your neighbor, not you of course).

3)      To the wireless router providers out there like Comcast, etc., please do something about your password instructions that are printed in a manual.  Very few people actually read instruction manuals anymore, because people don’t read anymore (Steve Jobs would agree with that).  I’ll bet that if you simply provide a video walkthrough of how to password-protect, and then broadcast it on any one of your 80,000 T.V. channels or post it on YouTube, everyone would know how to do it.

Until next time, let’s all remember: e-mail privacy rights > unsecured wireless wi-fi privacy rights (unless you are sending illegal e-mails using your neighbor’s wi-fi).

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Will the U.S. Soon Face a Shortage of Lawyers?

Bear with me on this. I know it sounds crazy, especially for those in the legal industry. Over the last few years, an attitude of doom and gloom about employment for recent law school graduates has become almost axiomatic: students go to law school for the wrong reasons, law schools embellish their employment statistics, the ABA will grant full accreditation to a taco truck with a handwritten sign that says “Lawskool,” and, every year, there are more new law school graduates than there are law jobs.

There are quite a few bitter lawyers and law students out there right now, who feel that they’ve been duped. While I believe that the law school system could certainly use some reform, and that every major player, including the schools themselves, the ABA, U.S. News and World Report (which provides the only rankings for law schools to which anyone pays any attention), the student loan industry, and law firms could stand to do a better job in giving people considering law school an accurate picture of what the practice of law is like, I don’t consider myself a crusader against the “law school scam,” as it’s so often called.

Anyway, the point of all this is that it’s generally assumed that the legal market will be over-saturated forever. But, is this necessarily the case? The word about the current state of the legal job market has gotten out, and law school enrollment is down. The UK has gone through a similar drop in law school attendance, and a decrease in the number of new lawyers over the last few years. However, as the global economy gradually kicks back into gear, there seems to be a shortage of entry-level attorneys in that country.

There was a recession in the early 90s, which, as with this recession, hit the legal industry pretty hard, and enrollment in law school went down. As the economy picked up, and businesses engaged in more activity, and therefore needed more legal services, law firms found that they could not find enough new associates, and this drove salaries for new associates way up, as firms competed for talent.

As the economy in the U.S. recovers, could this come to pass here? I’m sure a lot of people who graduated law school in the last 1-3 years are hoping so, and desperately want to believe that this is how it will play out here. And maybe it will. After all, the legal industry, especially the type of work done by large corporate firms, is increasingly global. On top of that, the legal systems in the US and UK are pretty similar.

If this comes to pass in the U.S., I’m sure a lot of young lawyers will welcome the news. However, in the experience of many lawyers I know, if you have been out of law school for more than a few years without a “real” legal job, many firms see you as “damaged goods,” and will pass you up for a new graduate, or someone who worked for them over one summer in law school.

This, I think, illustrates a problem in the industry, which may, in part, be the cause of some of its other problems: snobbery.

A lot of lawyers, particularly at large law firms, seem to look down on people who didn’t go to prestigious law schools ranked in the top 14 in U.S. News and World Report. Why are the top 14 considered particularly prestigious? Why not top 15, top 10, or top 20? Apparently, since the U.S. News and World Report began ranking law schools, the same 14 schools have always ranked in the top 14. They’ve switched places within the top 14, but none have ever dropped below number 14, to be replaced by another school. However, on a few occasions, an additional school has (sort of) made it into the top 14, but only by tying with one of the more “traditional” top 14 schools.

Anyway, big law firms overwhelmingly hire from those schools, and schools ranked near them. In this market, they rarely hire from outside the top 50. This leads to elitism on the top of the legal profession, and inferiority complexes on the lower.

Why is this a problem? It’s problematic for a few reasons. First of all, it creates a bit of an “us vs. them” atmosphere between different “classes” of lawyers.

Secondly, if you watch any movie or TV show having to do with the legal system, it typically focuses on the type of work mostly done by big firms, or at least it depicts young lawyers living a lavish lifestyle that only a big firm salary could provide (not that you’d have much time to spend all that money). This leads to many young people developing an unrealistic idea of what the legal profession is like, and leads to them going to law school for the wrong reasons.

If you’re considering law school, I’m sure you’ve heard this before, but I’m going to go ahead and reiterate: don’t go for the money, or the prestige of working at a big firm. First of all, only a minority of law graduates land jobs at big firms. Second, if that’s the only reason you go to law school, chances are you’ll end up not enjoying the work, and you’ll be working longer hours than most employees. Also, if you don’t have a passion for the law, it’s unlikely that you’ll do well enough in law school to get a job at one of these big firms in the first place.

So, what can the legal industry do about this? It could start by getting over itself. Obviously, the work done by lawyers is important – perhaps more important than most people realize. But, it’s not as if they’re philosopher-kings, and it would be nice if TV and movies would stop giving that impression.

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Loose Talk Online has Real-Life Consequences

I’ve said it before, and I’ll say it again: sometimes, words have legal consequences. You can commit serious legal wrongs (fraud, defamation, solicitation, conspiracy, etc.) using words alone. Furthermore, speaking without thinking can hurt your legal position in other ways, inadvertently defeating an essential element of a claim or defense in a civil case.

I should also note, again, that these legal consequences apply whether you say something in the real world, or on the Internet. And since anything you say on the Internet generally has the potential to reach far more people than something said in the physical world, you should generally be more guarded about what you say online. But, for whatever reason, most people seem to do the opposite – typing out the first thing that pops into their heads, for the world to see.

Today brings yet another case (also seen here) of somebody saying something online, and negatively affecting their legal situation. Though this one is a bit more amusing than most. This case involved a divorcee who was awarded $850 per month in spousal support, partly because she claimed she was unable to work, due to a back injury.

However, the court found out that she was very fond of belly dancing, which, from my limited experience, looks like it would be pretty physically taxing – not exactly something for people who can’t work (even as a legal secretary, which is what our friend did before all this) due to a back injury.

So, how did the court find out that she had recently taken up belly dancing? Why, her blog, of course!

She made posts about how she “swirled around,” “danced herself silly,” and the like. And, of course, either her ex-husband, his lawyer, or the judge found these posts (she must not have made much of an effort to remain anonymous online), and asked her to reconcile this with her claim that she suffered so much back pain that she couldn’t work as a legal secretary.

Rather than fessing up, she claimed that her activities were prescribed by her doctor, as a form of physical therapy. Her doctor was called in, and he testified that he had no idea she was belly dancing on the side. Good work!

In addition to denying her petition for an order of spousal support, the judge ordered her to pay her husband over $5,000 in attorney’s fees. Ouch. This is one of the more boneheaded examples of loose online talk getting people into some sort of legal trouble (or defeating a legal claim that they might have had).

However, it’s gotten to the point that people are so reliable in revealing personal information online, that many older “high-tech” investigative tactics are becoming obsolete.

For example, it’s still pretty common for insurance companies to hire private investigators to keep an eye on plaintiffs in personal injury lawsuits against the insurance company’s policyholders. Just a few years ago, the most high-tech investigative technique they had at their disposal was surreptitious videotaping. They’d set up a hidden camera outside the plaintiff’s house, and look at what type of physical activities they’re engaged in. If they see the person working out, moving heavy objects, climbing on a ladder, playing sports in the front yard, etc., they can be pretty sure that his or her injuries are not as severe as they’re claiming.

Nowadays, however, they sometimes don’t even have to bother: the people they’re investigating will voluntarily post incriminating statements, photos, and videos on Facebook.

What is it about the Internet that it creates this massive blind spot in our discretion in sharing our personal information? I really don’t know. Perhaps it’s the illusion of anonymity. Perhaps it’s the fact that everyone else is cavalier with their personal information online.

In any case, we’ve known for years that this type of carelessness can get us into trouble. Yet, it seems that most people have to learn the hard way just how much damage it can do in real life.

One would think that, the more time we spend online, the more we’d start treating it as we treat real life – you know, thinking about what we say, and what information we share. But it seems that just the opposite has happened: we’ve completely lost any expectation of privacy. Or, if we expect to remain private online, we do next to nothing to protect that privacy, and are for some reason surprised when people find out things about us that we might not want them to know.

I have no idea how to change this. And I think it’s a pretty serious concern. With the Internet, our whole attitude towards privacy is changing, and the long-term effects this could have on society are impossible to predict.

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Wendy’s Battles for French Fry Crown, May Only Get False Advertising Lawsuit

Fast food junkies around the country rejoice, for a new king of french fries has apparently been crowned.  According to Wendy’s website anyway.

Yes, the red-headed fast food giant made waves in the fast food world last week when the company called out current reigning champ McDonalds in their new set of commercials.  What Wendy’s claims in its ads can be considered blasphemy to devout burger eaters, because the company asserts that their new Natural Cut French Fries taste better than those at the Golden Arches.

These are pretty tough words to back up, as I’m sure most people would considered McDonalds’s fries to be a crowning achievement when it comes to fast food.  However, Wendy’s supports its claims by touting the results of a blind taste test conducted by an independent research company it hired.  The report’s results found that 56 percent of consumers preferred Wendy’s new fries over McDonalds, which only received 39 percent of the votes.

Now fries with great flavor are all well and good, but the problem some people are having with Wendy’s new line of fries is the company’s use of the word “natural.”  The blogosphere has been lit up as of late over this topic.  In advertising its new fries which debuted last November, Wendy’s asserts that it developed the recipe in an attempt to better cater to the tastes of its consumers.  The company determined that by leaving the potato skins on their fries and using sea salt instead of the usual iodized table stuff, they were able to create a crispier tastier and more natural-looking fry.

Wendy’s new fries certainly do look better than last year’s model, but the problem as one blogger points out is that they’re not all that natural.  The reason is because after the fries are cut, they still go through a chemical bath of sodium acid pyrophosphate and dextrose, which are designed to keep the fries from browning after they’re fried a second time at the restaurant.  The oil used to cook the fries also has an equally long and unnatural sounding chemical added to it in order prevent the oil from getting foamy.

The result is that Wendy’s new fries are essentially more of the same old thing, only covered in potato skin and sea salt.  And to some, this has led to speculations over a potential new class action against the company because the fries aren’t as natural as Wendy’s claims them to be.

Sounds crazy, right?  If you nodded in agreement, you’d be right.

Now it’s pretty obvious by Wendy’s throwing the word “natural” into the name of its new fries and loading its new ads with images of grassy fields and farmland, that the company wants to jump on the organic food wagon or at least make their customers think they have.  Some would say that this is all very misleading as some consumers may actually start to believe that Wendy’s fries are organic and start to buy them based upon this belief.  However, such a misinterpretation alone is not nearly enough of a basis for a false advertising class action.

The case law for false advertising is pretty clear under federal and most state laws.  The standard is generally that an advertisement must either literally be false or likely to mislead consumers.  Wendy’s new ad campaign for its fries hardly meets the “literally false” standard at all because for one, the company never actually asserts their fries are organic, and for that matter, that the fries are even natural.  The official product name is “Natural Cut French Fries,” not “Natural French Fries.”  The word “cut” tells you that the fries are just simply cut into fries without the usually peeling first and definitely doesn’t conjure the belief that they are natural or organic.  Even the boarder “likely to mislead” standard isn’t met either because all the company ever says about its fries is that they taste better than before and that more consumers prefer their brand over their competitor’s, which they support with a blind taste test.

Wendy’s never claims their fries to be anything more than just tasting good.  And that’s the genius behind these ads.  You see, rather than just go the misleading route like most companies do, Wendy’s has gone the subliminal route with it ads.  They used natural looking scenery and images to promote their new product which in turn has a chance of subtly implanting the notion in consumers that the company’s fries are natural and perhaps even healthy.

Some might say that even if this were Wendy’s intent, the advertising would still be misleading.  However even so, almost every major company out there uses this advertising tactic and if Wendy’s goes down, you’d better believe that the litigation flood gates would be open to every single one of those other companies, too.  And as unfair as something like this might sound, the fact of the matter is that puffing up ads has long been acceptable in the eyes of the law.

So what can you learn from all this?  Well, if you’re a consumer, you can pretty much rest assured that fries are still bad for you.  And if you’re a business owner looking to puff up your products without the FTC or private individuals suing you, than take a page from Wendy’s advertising playbook and go subliminal.

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