You remember email, right?  That thing you’ve been using as your main source of written communication since the last decade?  The major form of correspondence that has surpassed old-fashioned snail mail and which is relied upon by everyone from business titans to celebrities, the president, and your aging grandmother (who floods your inbox with those funny grammatically incorrect cat pictures)?  Yeah, that email – it’s no longer protected against searches from the police.

“No, that can’t be right!  Right?  Email?  They are no different than letters you received in the mail; how can they not be afforded the same protection?” Well, apparently if you think like that you’ve been preempted by a federal judge, my friend.

Specifically, this ruling comes down from and Oregon Federal Judge Michael Mosman (I almost typed Michael Madsen; if he gave the ruling I might’ve been less outraged).  Judge Mosman argues that unlike regular snail mail which is handled by postal employees, e-mail should not be afforded the same protection against unlawful searches and seizures under the Fourth Amendment because when an email is sent, it goes through various Internet service providers.  By traveling through these different providers, each email leaves a digital image of itself with each ISP.  And apparently this fact is enough to distinguish email from regular land mail because by leaving a digital copy of itself, emails are in essence open to the ISP to read and monitor and therefore people who send emails cannot expect to have the same level of privacy as when one sends a regular piece of mail through the post office.  Judge Mosman’s full opinion can be read here (please note that the link is to a PDF).

Sound mental?  Yeah, well it should.  Judge Mosman seems to hang his ruling on the notion that because emails aren’t sealed in envelopes like a written letters, people should expect it to be read.  Now to be fair, police would still need a warrant to search through your email.  However, they’ll just need to submit the warrant to an ISP that has your emails to get access to them, thereby completely bypassing you and giving you no notice before invading your private emails.

Now on one hand, Judge Mosman’s argument makes some sense.  Junk mail in the form of post cards and brochures are almost never sealed and the courts have generally viewed these as forms of advertisement and therefore not protected under the Fourth Amendment since it’s argued that junk mail is meant to be seen by as many people as possible.  However, this is also where Judge Mosman’s argument breaks down because private emails aren’t advertisements, but are actual private communications between parties.

“But Andrew, what about the whole issue of emails leaving digital copies of themselves on ISPs and not being sealed like normal letters?”  Well let me answer that question, too, and thank you for asking so kindly.  Though emails are not physical sealed, they are often digitally encrypted to prevent prying eyes from seeing its contents.  Therefore, an analogy can be drawn between sealing and encryption since they both show the sender’s intent to keep their communication private.  Furthermore, like postal workers who we trust not to open our mail, similarly we trust our ISPs not to read our emails.

Anyway, all my ranting is meaningless until someone challenges Judge Mosman’s ruling or the legislature passes a law that gives emails the same protection against unlawful searches and seizures that physical mail enjoys.

So get started people, write your senators and congressmen, just don’t email them – for now.

Email – It’s Fast, Easy, And Now Unprotected From Unlawful Searches is a post from: LegalMatch Law Blog

They make a variety of factual and legal arguments to support their conspiracy theories. The most common “factual” (a term I use loosely) argument they make is that Obama was not actually born in Hawaii, as is widely accepted. Instead, they claim, he was born in a foreign country (usually Kenya). Of course, they ignore that a Certification of Live Birth has been released, and confirmed to be accurate by the relevant officials in Hawaii.

Others concede that he was born in Hawaii, and rely on dubious legal arguments to support their claims. Some claim (usually without citing any supporting authority) that, in order to be a “natural born citizen” under the meaning of the U.S. Constitution, both parents must also be citizens of the United States. To be fair, the Supreme Court has never firmly ruled on what it means to be a “natural born citizen” under the meaning of the Constitution. So, the birthers have simply settled on their own definition, to the exclusion of all other possible definitions.

To support this point, they often rely on the writings of a Swiss political philosopher named Emerich de Vattel, author of the 1758 book “The Law of Nations.” This tome was apparently quite influential in the early development of international law, and it advocates the idea that, for a person to be a “true” citizen of a nation, both of his or her parents must also be citizens. There’s just one problem: no evidence suggests that this work particularly influenced the framers of the U.S. Constitution when they were drafting that document. Even if it did, a Swiss book on political philosophy is not binding legal precedent in the United States.

None of this has stopped a dentist/lawyer named Orly Taitz from filing a lawsuit challenging President Obama’s eligibility to serve.

The result? The case was dismissed almost immediately. However, Ms. Taitz continued to file motions, and, after repeated warnings from the judge, was slapped with a $20,000 fine for misconduct, noting that she made no coherent legal arguments, and that her briefs and motions read more like political manifestos than court documents.

It should be noted that one of the best things about this country is the fact that you can say almost anything about anyone, especially elected officials, with relatively few legal ramifications. However, that does not mean that you are guaranteed a platform to air your views, or that you get to use the courts to air whatever crazy idea happens to pop into your head. If that were the case, I’d be in court right now, arguing the merits of hamburger earmuffs.

In the end, we should all remember that the courts are a place to settle genuine legal disputes, and the non-issue of Mr. Obama’s citizenship is not one of them. Ms. Taitz has every right to express her political views in any number of ways. She could buy space on a billboard, she could run spots on the radio, or she could simply make like this guy.

Frivolous Lawsuits Are a Bad Idea: Birther Edition is a post from: LegalMatch Law Blog

Alright, I’ll stop now. If you haven’t already closed your browser in disgust (and I don’t blame you if you have), you may be wondering what this is about. According to the ABA Journal, the highest court in the UK has allowed an anonymous blogger to be notified of an injunction through a Twitter message.

The blogger in question was impersonating a well-known English lawyer, Donal Blaney, who also happens to be a frequent conservative commentator. In his blog, the anonymous blogger apparently held himself out to be Blaney, and wrote articles under his name, promulgating caricatured political positions.

Because the identity of the anonymous blogger could not be readily ascertained, and Twitter was the easiest way to contact him, the court granted Blaney’s request to serve the injunction via Twitter. The Twitter message sent to the blogger contains a link to a copy of the injunction, and orders him to immediately cease impersonating Blaney, and to reveal his identity.

This follows on the heels of a ruling by an Australian Court, a defendant was served with notice of a default judgment through Facebook.

Apparently, courts in Australia are well known for their tech savvy, already allowing service of process via email and text messages, so such a move is to be expected. The question, then, is when should we expect such forward-thinking actions from American courts? If I had to guess, I’d say we have a while to wait, considering that some of them haven’t yet mastered advanced staple technology.

In all seriousness, this does raise some interesting questions about how service of legal documents should be handled in the digital age. The courts of most U.S. states, and the federal government, call for service to be delivered personally, in a hard copy. This is certainly the preferable method, as it all but eliminates any uncertainty as to whether or not service was actually received. However, it’s not always possible, for a variety of reasons. In such cases, “substituted service” – leaving the documents with another member of the person’s household, or at their place of business, is acceptable, as is service by mail.

Really, though, given the fact that most people in the developed world use email, and many also use social networking sites, wouldn’t allowing service by electronic means make sense, at least if other methods of service fail? After all, you can now check your email on almost any device that has a screen, and most people check their email on a daily basis. It would be pretty hard for someone to claim with a straight face that they haven’t received service, if they could receive it via email.

Of course this raises issues, as well. Once it becomes accepted that you can receive notice of a lawsuit via email, it won’t be long before the scammers realize that they can separate fools from their money by emailing them fake summons, and telling them that this pesky lawsuit can go away for a reasonable fee.

So, there are a few kinks to work out of the system, but in cases such as this, when the defendant is clearly a real person, with ready means of contact, but cannot be identified for whatever reason, it seems that justice could be served much more efficiently if this method of service were allowed.

@defendant – plz to cease n desist kthxbai is a post from: LegalMatch Law Blog

It seems that our justice system is being run by a bunch of Catholic school nuns hell-bent on tidiness because court cases are being thrown out for completely arbitrary reasons.  How arbitrary you ask?  How about poorly-stapled-document arbitrary?

Yes, that’s right people, if you’re planning on filing a claim in the New York Supreme Court, you better make sure your papers are aligned properly and the sharp points on your staples are filed down because the nuns running that court are also made out of sugar.  According to Justice Charles J. Markey, “[T]he poor stapling of the papers was so negligent as to inflict, and did inflict repeatedly, physical injury to the court personnel handling them.”  That must’ve been one incredibly bad staple job…

I’d hate to be the attorney on that one, what an uncomfortable phone call you’d have to make to the client.

“My motion was denied?  But how, I thought my case had a sound legal basis??  What, a staple??”

Now to be fair, that staple from hell did draw blood, twice.  And at the very least the court gave a reason for denying the motion, as unjustified as it may be, which is much better than what some courts give those trying to shove their cases before an almighty judge.  The court also claims that the reason for the denial stemmed from the lawyer forgetting to include his signature as well as missing affidavits from the plaintiff.  Way to recover…

Seriously though, a staple?  Reading this story, one can’t help but think of the first rule of the Federal Rules of Civil Procedure: “all civil actions and proceedings in the United States district courts…should be construed and administered to secure the just…determination of every action and proceeding.”  Which any smart-ass first-year law student can tell you basically means that the court is supposed to look at all claims so as to do justice for all those involved.  Justice.  Denying a plaintiff’s motion because the staple they used to keep their documents from flying apart doesn’t sound very fair to me (and I hope it doesn’t to you either).  Whatever happened to, oh I don’t know, judging claims on their merits?  Call me crazy and old-fashioned, but I’m just one of the nutty guys who still believe that courts were created to judge everything fairly.  They should really start tearing down those blind justice statutes all over the place.

So what’s the moral of this story?  Evidently, it’s that when you hire a lawyer make sure you insist that they include their kindergarten teacher on their list of references.

Justice is Blind, But Apparently Not Immune to Jagged Staples is a post from: LegalMatch Law Blog

This case raises quite a few interesting legal issues, not the least of which being whether a Florida court even has the jurisdiction to rule on the parental rights of a family in Ohio.

However, it also raises other legal and practical issues: there does not appear to be much evidence supporting this girl’s claims. On the other hand, the allegations are extremely serious. What weight should be given to such allegations? In cases such as this, should there be some sort of sliding scale that decreases the standard of proof as the severity of the harm alleged increases? This may make logical sense, but raises many practical issues, as well.

This girl is 17 years old, meaning she will be 18 in less than a year, at which point she’ll be legally able to sever any relationship she has with her parents. Whatever the merits of her allegations (again, there does not appear to be any concrete evidence supporting them at this point), it is clear that her relationship with her parents is less than perfect. Would anybody’s interests be served if she were forced to return to her family, when she could legally move out in a matter of months? Given what we currently know about the facts of this case (not much, at this point), it seems that, whatever her reasons, she will probably choose to leave her family when she is legally free to do so.

On the other hand, if her testimony lacks any credibility, and she cannot articulate any other reasons that a court should terminate her parents’ custody over her, a court might reasonably conclude that this is simply a case of teenage angst taken to extremes.

If this girl is telling the truth, the sad fact is that her story would not be a new one, though the particular facts are unique. According to LegalMatch case data, the majority of recent cases with issues of child abuse involved alleged abuse by a parent or stepparent. While we don’t know if this girl’s allegations are true, if they do turn out to be true, it wouldn’t be the first nor the last time, unfortunately.

Religion and Child Custody is a post from: LegalMatch Law Blog

This case raises quite a few interesting legal issues, not the least of which being whether a Florida court even has the jurisdiction to rule on the parental rights of a family in Ohio.

However, it also raises other legal and practical issues: there does not appear to be much evidence supporting this girl’s claims. On the other hand, the allegations are extremely serious. What weight should be given to such allegations? In cases such as this, should there be some sort of sliding scale that decreases the standard of proof as the severity of the harm alleged increases? This may make logical sense, but raises many practical issues, as well.

This girl is 17 years old, meaning she will be 18 in less than a year, at which point she’ll be legally able to sever any relationship she has with her parents. Whatever the merits of her allegations (again, there does not appear to be any concrete evidence supporting them at this point), it is clear that her relationship with her parents is less than perfect. Would anybody’s interests be served if she were forced to return to her family, when she could legally move out in a matter of months? Given what we currently know about the facts of this case (not much, at this point), it seems that, whatever her reasons, she will probably choose to leave her family when she is legally free to do so.

On the other hand, if her testimony lacks any credibility, and she cannot articulate any other reasons that a court should terminate her parents’ custody over her, a court might reasonably conclude that this is simply a case of teenage angst taken to extremes.

If this girl is telling the truth, the sad fact is that her story would not be a new one, though the particular facts are unique. According to LegalMatch case data, the majority of recent cases with issues of child abuse involved alleged abuse by a parent or stepparent. While we don’t know if this girl’s allegations are true, if they do turn out to be true, it wouldn’t be the first nor the last time, unfortunately.

Religion and Child Custody is a post from: LegalMatch Law Blog

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.

Yet Another Court Agrees: Vaccines Do Not Cause Autism is a post from: LegalMatch Law Blog

Contributing to this significant transfer of assets is an increase in the number of will contests being brought today, particularly as it relates to step-families.  Children of these families are rapidly learning that the second (or third) spouse often has significant if not greater rights than the children; intestacy shares can range from 1/3^rd to as much as ½ of the decedent’s estate when there is no will.  (Before Your Parent’s Say ‘I Do’ Again)

Even when there is a will, sometimes a new spouse will change not only the family dynamics but also the dynamics of the will or family trust.  Most Americans are familiar with Anna Nicole Smith’s short-lived marriage and protracted court battles that continue even after her death. (Daughter to Inherit Mother’s Estate ).  Anna’s litigation, however, is not atypical although most people’s estate assets are significantly less than the Marshall fortune.

In fact, some children are proactively approaching their parents about their estate plans before their parents die.  SmartMoney.com profiles Neil Finkel whose 80+ year-old father placed a large percent of his multi-million dollar estate into a trust for his son.  However, Finkel’s Dad married a woman 30 years his junior. Amy, the new spouse, and Neil subsequently waged a 2-year court battle over the father’s dwindling assets which were being eroded by the spending habits of the new wife.  Although the case was settled, it’s unlikely that the rift in the family will be healed and it could erupt again after Dad Finkel’s death.  (Before Your Parent’s Say ‘I Do’ Again)

During the past five years, tens of thousands of people have used LegalMatch to find an attorney to represent them in filing a lawsuit to contest a will or to defend the estate against a will contest.  Not surprisingly, many of the most popular states for will contests have a high concentration of residents age 65+.  Plus, this top 10 state list comprises over 55% of LegalMatch’s will contest customers: 

Your will or trust will have lasting implications on your heirs after your death, particularly in those families where there are step-children or multiple spouses.  Probate litigation is generally protracted and can tear families asunder.  Developing a proactive estate plan, even if your estate assets are small, should help to reduce family tension after your death.  However your estate plan is crafted, you will be communicating a strong message to your family. The properly drafted will can stand the tests of probate court and ensure that your intent is followed after death.

Where There’s a Will, There’s a Way? is a post from: LegalMatch Law Blog

Retail: 28%
Manufacturing: 16%
Government: 12%
Transportation: 9%
Professional (law, accounting, architecture, etc.): 9%
Education: 8%
Construction: 8%
High technology: 6%

Approximately 61% of these respondents reported their sexual harassment to their superiors. Federal whistleblower protections are meant to protect these people from retaliation. With these rules in place, why are almost 40% of employees not reporting sexual harassment?

For one, litigating a claim in federal court is intimidating. Federal Whistleblower cases are costly and complicated. The burden of losing a job often outweighs the small consolation of possible redemption years down the road.

Additionally, whistleblower protections may not have applied to a large portion of sexual harassment victims until recently. The recent Supreme Court case of Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, finally applied federal whistleblower laws to in-house employer investigations. Prior to this ruling, an employee could be retaliated against for answering an employer’s questions about sexual harassment in a private employer investigation. Lower courts stated that such investigations did not come under the ambit of federal protections, creating the absurd situation where employees reporting discrimination on their own initiative were protected, but employees reporting the same discrimination in the same words when their boss asked a question could be fired.

Such an obvious ruling should have come a lot sooner. How many sexual harassment cases flew under the radar while lower courts created and followed this absurd precedent?

Jobs with Most Reported Sexual Harassment Cases, 2004-Present is a post from: LegalMatch Law Blog

The state’s highest court applied a state law shielding participants in “contact sports” from most personal injury lawsuits. The law is well known and common throughout every state. Reckless or intentional injuries are still actionable, such as hitting an opponent in the face with your hockey stick. Injuries resulting from tackling the quarterback or knocking over a forward on a pick and roll, however, won’t end up in court, and for good reason. Almost every sport in the country would probably be buried in an avalanche of lawsuits.

What makes this case interesting is characterizing cheerleading as a “contact sport” under Wisconsin law. The relevant statutory language describes a contact sport as any recreational activity involving physical contact between persons in a sport involving teams. Well, there is at least one “team.” And they definitely come into contact with each other. But a contact sport? The lower court didn’t think so, citing that normal usage of the term meant opposing teams must come into contact with one another.  

In this blogger’s cynical opinion, what motivated this reversal was not an appeal to clear statutory interpretation, but the same pragmatic considerations for immunizing participants that come into play for other sports. In other words: policy. Almost 1/3rd of all catastrophic injuries to high school female athletes in the United States occur during cheerleading. Even though it may not be the biggest draw on ESPN, cheerleading is a popular activity. (Or sport, or whatever you want to call it). Ensuring that cheerleading has an affordable future free of multi-million dollar insurance contracts for participants is certainly an important consideration.

Although a case about cheerleading may not jump out as the most obvious foil for a debate on judicial decision making, this case has all the elements. A statutory interpretation that could go either way, along with policy considerations that are not clear in the statute but undoubtedly under consideration by the judges. Interestingly however, both a textualist and a pragmatist can find common ground with this decision. The law was written ambiguously enough that cheerleading could plausibly be considered a “contact sport” under the law of Wisconsin. And, important policy considerations for ensuring the continued survival of cheerleading are recognized and supported, even though they are not clearly spelled out in the law.

Perhaps we all therefore have something to cheer about?

Cheerleading for Tort Reform, One Broken Bone at a Time is a post from: LegalMatch Law Blog