Tuesday, October 31, 2017

#HalLAWeen Art: Gallows Humor

cartoon: condemned person on gallows with clown throwing pie in face


See Wordnik (defining "gallows humor"). See generally Gallagher Blogs series of #HalLAWeen Art posted Oct. 31, 2017.

Graphic: Mary Whisner

#HalLAWeen Art: Fruit of the Poisonous Tree

cartoon: two skeletons by fruit stand with sign "Fruit of the Poisonous Tree"


"the trial judge must give opportunity . . . to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree."

Nardone v. United States, 308 U.S. 338, 341 (1939) (Frankfurter, J.), Google Scholar

Graphic: Mary Whisner

#HalLAWeen Art: Dying Declaration

"...[I]n each case, the prosecution argued that the statement be admitted as a dying declaration."
-Giles v. California, 128 S.Ct. 2678, 2703 (2008), Google Scholar.

#HalLAWeen Art: Severability

"The standard for determining the severability of an unconstitutional provision is well established: `Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.'"
 -Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987), Google Scholar.

#HalLAWeen Art: Disgorgement

cartoon: man in suit with dollar bills spewing from his mouth

disgorgement, n. (15c) The act of giving up something (such as profits illegally obtained) on demand or by legal compulsion.

Black's Law Dictionary (9th ed. 2009)

dis-gorge : to empty whatever is in the stomach through the mouth

Merriam-Webster Dictionary App


Graphic: Mary Whisner

#HalLAWeen Art: Poison Pill

"The first relevant defensive measure... would be considered a 'poison pill' in the current language of corporate takeovers — a plan by which shareholders receive the right to be bought out by the corporation at a substantial premium on the occurrence of a stated triggering event."

-Revlon, Inc. v. MacAndrews & Forbes Holdings, 506 A. 2d 173, 180 (Del. 1985), Google Scholar. 

#HalLAWeen Art: Claw Back

cartoon: large monster bird grasping human's back with claws and flying


"A new phenomenon has developed in recent bankruptcy proceedings in which trustees are 'clawing back' tuition payments made by debtor-parents on behalf of their children."

Andrew Mackenzie, Note, The Tuition "Claw Back" Phenomenon: Reasonably Equivalent Value and Parental Tuition Payments, 2016 Colum. Bus. L. Rev. 925 (2016)


Graphic: Mary Whisner

#HalLAWeen Art: Phantom Defendant

"...[A]nd that the 'phantom defendant' defense was not a viable alternative, given that the defendant's bloody fingerprints were found in the victim's apartment."
- Ex parte Brooks, 695 So.2d 184, 191 (1997), Google Scholar.

#HalLAWeen Art: Dead Hand

cartoon: skeleton hand sticking out of grave

"Is reference to the Framers' intent majoritarian? To the contrary; it amounts to rule by the dead hand from the grave."

Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577, 594 (1993)

Graphic: Mary Whisner

#HalLAWeen Art: Hung Jury

"He asserts that if the Government failed to introduce sufficient evidence to establish his guilt beyond a reasonable doubt at his first trial, he may not be tried again following a declaration of a mistrial because of a hung jury."

-Richardson v. United States468 U.S. 317, 311-312 (1984), Google Scholar.

#HalLAWeen Art: Judicial Hellhole

cartoon devil in judge's robe sitting among flames


"The term 'judicial hellhole' appears to have been created by the American Tort Reform Association and was used extensively during the CAFA debates."

Emery G. Lee III & Thomas E. Willging, The Impact of the Class Action Fairness Act on the Federal Courts: An Empirical Analysis of Filings and Removals, 156 U. Pa. L. Rev. 1723, 1725 n.2 (2008).

See Am. Tort Reform Found., Judicial Hellholes.

Graphic: Mary Whisner

#HalLAWeen Art: Parade of Horribles

cartoon: green & purple monsters marching with band instruments

"The briefs present a gruesome parade of horribles."

Diamond v. Chakrabarty, 447 U.S. 303, 316 (1980) (Burger, C.J.)

Graphic: Mary Whisner

#HalLAWeen Art: Blood from a Turnip

"Our decision merely recognizes that courts are without power to draw blood from a turnip." 
-Esteb v. Enright, 563 N.E.2d 139, 142 (1990)Google Scholar.

#HalLAWeen Art: Brooding Omnipresence in the Sky

cartoon: cloudlike brooding guy in sky


"The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified . . . ."

Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting), Google Scholar

Graphic: Mary Whisner

#HalLAWeen Art: Possession is Nine Tenths of the Law



"That possession is nine-tenths of the law is a truism hardly bearing repetition."
- Wilcox v. Stroup, 467 F.3d 409, 412 (2006), Google Scholar.

Monday, October 30, 2017

#HalLAWeen Is Coming!

Halloween is coming, and what better way to celebrate it than with some blog posts? Perhaps you've already read today's post, Ghosts and the Law. We're going to move on from there to present a gallery of some spooky or macabre legal terms, or what we call #HalLAWeen.

Now, we all know that law is serious business and affects real people's lives. This series of sketches takes a break from the seriousness to have what we hope is good-natured fun. If you see a guillotine or gallows illustrating "execution of remedies," please understand that we're just going for a visual pun and we aren't commenting on the appropriateness of different forms of capital punishment.

Be warned: spooky cartoons coming!

Ghosts and the Law

The courtroom is generally an area where facts are all that matter, and where anything that cannot be proven may as well not exist. This might lead one to the conclusion that the courts are largely silent on the topic of ghosts and the paranormal, but that assumption would be incorrect. This post will briefly discuss some legal cases revolving around the legal treatment of ghosts.

The most famous ghost-related case is Stambovsky v. Ackley. A woman named Helen Ackley lived in a house that she swore was haunted. She reported on paranormal incidents to local and national publications. Ackley decided to sell the house to a man from out of town named Jeffrey Stambovsky, but neither she nor her realtor disclosed the alleged haunting. When Stambovsky learned of the haunting, he attempted to withdraw from the agreement and sued Ackley.

The New York Supreme Court, Appellate Division ultimately found in favor of Stambovsky, ruling that the house was haunted as a matter of law. While the house may or may not have been haunted, the fact that Ackley had publicly treated the house as though it had been haunted meant that she was required to disclose the house's condition. While the decision is most famous for its ruling, the opinion became known as the "Ghostbusters Ruling" thanks to its numerous references to ghosts and spooky turns of phrase.

An ongoing copyright case addresses the existence of ghosts more directly. Horror fans might be familiar with Warner Bros.' Conjuring films. This franchise, which currently consists of four films, is based on the case files of paranormal investigators Ed and Lorraine Warren. The couple were involved with a number of high profile allegedly supernatural occurrences, including a murder trial where the defendant pled not guilty by reason of demonic possession. Gerald Brittle, the author of the Warren biography The Demonologist, has filed a nearly one billion dollar lawsuit claiming that the franchise infringes on his exclusive rights to the Warrens' stories. 

The chain of ownership is a bit complicated, but one of the core issues in the case is whether the Warrens' case files were factual or not. Copyright law protects original works of authorship. Facts are in the public domain, and are therefore not generally protected by copyright. However, the compilation, arrangement, and selection of facts- those elements of a historical account that require creativity from the author beyond recitation of events- are protected through copyright law. You can learn more about the nuances of copyright in this FAQ from the U.S. Copyright Office

Brittle argues that the cases that inspired both the book and the films did not occur. In essence, the incidents described by the Warrens were independent works of authorship, since they reflected the creative processes of the investigators rather than actual facts. U.S. District Court Judge John Gibney Jr. has declined to explore this argument at this stage in the process, and has allowed the case to move forward with a trial date in April of 2018. You can read more about the trial in this piece from The Hollywood Reporter
As you can see, the law is an even scarier subject than you might think!