Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet very little empirical information exists on many aspects of misdemeanor prosecutions.

This Article provides the first quantitative look at appellate review in misdemeanor cases, nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts review no more than eight in 10,000 misdemeanor convictions, and disturb only one conviction or sentence out of every 10,000 misdemeanor judgments. This level of oversight is much lower than that for felony cases, for reasons we explain.

Additional findings include new information about the rate of felony trial court review of lower court misdemeanor cases, ratios of appeals to convictions for various misdemeanor-crime categories, detailed descriptive information about misdemeanor cases that reach state appellate courts, the results of a complete statistical analysis examining which features are significantly associated with a greater or lesser likelihood of success, including crime type, claim raised, judicial-selection method, and type of representation, and the first quantitative look at how misdemeanor appeals differ from felony appeals.

{ LawArXiv | Continue reading }

watercolor on paper { JMW Turner, A Wreck, possibly related to Longships Lighthouse, Land’s End, c.1834 }

previously { The Federalist Society — A 30-Year Plan to Transform the Courts }

If you know that a public company has done a bad thing, and no one else knows about it, how can you use that knowledge to make money? […]

This is a financial column, so we tend to focus on the financial-markets answers: You can short the company’s stock, or buy put options, or buy credit-default swaps. Then you can either sit back and let the market discover the bad thing, or you can bring it to the market’s attention, by announcing the bad thing and maybe also by taking some extra steps—generally suing or calling up a regulator—to get the ball rolling. This approach has some crucial advantages; most notably, if the company is very big and the thing is very bad, this is a good way to make a whole lot of money. But there are disadvantages too. You tend to need a lot of capital to make a lot of money doing this; if you don’t have enough money to make a big bet against the company, you’ll probably have to sell your idea to a hedge fund that does, and you’ll get only a portion of the upside. There are all the general financial risks of short selling: The stock could go up for reasons unrelated to the bad thing, “the market can remain irrational longer than you can remain solvent,” etc. There are the specific risks of noisy short selling: The company will accuse you of fraud, people won’t believe your revelations because you have money at stake, etc. There is also the risk of insider trading: Depending on how you came to know of the secret bad thing, there may be some legal risk to you from trading on it.

But those are just the markets-y ways to make money from misbehavior. There are also lots of lawyer-y ways. There are whistleblower programs that can reward you for telling regulators—particularly the Securities and Exchange Commission—about the bad thing. (The SEC’s program focuses on securities fraud, of course, but everything is securities fraud so you can be creative.) If you are a lawyer looking to profit from the bad thing, you can find a victim of the bad thing and sue for damages (and take a cut), or you can find holders of the company’s securities and sue for securities fraud (and take a bigger cut), because, again, everything is securities fraud. […]

The really long game, if you are a lawyer, is that you can become a federal prosecutor, investigate the company for misconduct, push it to hire a fancy law firm staffed with former federal prosecutors to conduct an expensive internal investigation, and enter into a non-prosecution agreement that requires the company to pay millions of dollars to an outside monitor who is also a former federal prosecutor. Do a few of these—expanding the scope of criminal liability for corporations, and normalizing the notion that corporations should resolve their criminal liability by hiring ex-prosecutors as monitors and investigators—and then leave for a private law firm where you get paid to do the investigations and the monitoring, while the next generation of prosecutors creates business for you. […]

Avenatti clearly did not do a good enough job of making the extortion look like something else to satisfy prosecutors. I don’t know if he did enough to satisfy a jury; perhaps we’ll find out. But he didn’t do nothing; the complaint contains some gestures in the direction of Avenatti being a legitimate lawyer with a legitimate case from a legitimate client trying to reach a legitimate settlement. He didn’t just ask for money; he demanded that Nike do an internal investigation and that he be in charge of it. (And be paid a lot.) It’s not pure, naked blackmail; it is a settlement negotiation that gets a little deeper into blackmail territory than you’d ideally like. But any settlement negotiation is, you know, “give me money or I will sue and that will be embarrassing for you,” so it is a matter of degrees.

{ Matt Levine/Bloomberg | Continue reading }

pigment ink on cotton paper { Aneta Grzeszykowska, Beauty Mask #10, 2017 }

While we have come to expect bullshit from politicians, there is no shortage of judicial bullshit either. After discussing Harry Frankfurt’s famous description of bullshit, I illustrate possible instances of judicial bullshit in a wide range of bioethics cases, mostly at the Supreme Court. Along the way, we see judges bullshit for many reasons including the desire to keep precedents malleable, avoid line drawing, hide the arbitrariness of line drawing, sound important, be memorable, gloss over inconvenient facts, sound poetic, make it seem like their hands are tied, and appear to address profound questions without actually staking out provocative positions.

{ Arizona State Law Journal | Continue reading }

photo { Ramón Masats, Tomelloso, Ciudad Real, 1960 }

I am Mr Trump’s longtime special counsel and I have proudly served in that role for more than a decade. In a private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to Ms Stephanie Clifford. [Note the ambiguous phrasing: “facilitate a payment.” This doesn’t necessarily mean Cohen ultimately funded the 130k payment to Clifford, just that he made it happen.] Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms Clifford, and neither reimbursed me for the payment, either directly or indirectly. [The fact that the Trump Organization and campaign didn’t reimburse Cohen doesn’t mean that members of the Trump family or campaign (or indeed anyone else) didn’t reimburse him, or give him the funds before he made the payment.] The payment to Ms Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone. [Note that Cohen doesn’t say whether or not Trump knew about the payment.]

{ Michael Cohen, annotated by Quartz | Continue reading }

Brothers Vincenzo and Giacomo Barbato named their clothing brand “Steve Jobs” in 2012 after learning that Apple had not trademarked his name. […]

The Barbatos designed a logo that resembles Apple’s own, choosing the letter “J” with a bite taken out of the side. Apple, of course, sued the two brothers for using Jobs’ name and a logo that mimics the Apple logo. In 2014, the European Union’s Intellectual Property Office ruled in favor of the Barbatos and rejected Apple’s trademark opposition. […]

While the Barbatos currently produce bags, t-shirts, jeans, and other clothing and fashion items […] they plan to produce electronic devices under the Steve Jobs brand.

{ Mac Rumors | Continue reading }

art { Left: Ellsworth Kelly, Nine Squares, 1977 | Right: Damien Hirst, Myristyl Acetate, 2005 }

Over the years, multiple people have been wrongfully convicted all over the world of which some had an alibi for the moment that the crime was committed to prove their innocence but were not believed. In the criminal justice system, there appears to be an assumption that innocent people can generate an accurate and believable alibi, which means that the alibi should be correct and be supported by strong evidence. For an innocent person, it can, however, be very difficult to provide such strong evidence as also appears in the cases of wrongfully convicted people where convincing evidence is often lacking. If people were not at the crime scene but elsewhere and they can remember where they were at that time and evidence to support their alibis, it is perhaps the best chance to prove their innocence. […]

The objective of the present study was to establish the base rate of alibis and its supportive evidence of non-offenders. Despite the fact that most non-offenders report an alibi, the vast majority of their alibis do not match the criteria of the perfect alibi by the police because strong evidence is lacking. The reported evidence is more often weak, and the evidence for their alibi differs depending on when the alleged crime was committed (i.e., during the morning, afternoon, evening, or night). In addition, an alibi without supportive evidence—the least believable alibi—is most likely to be expected during the night compared to other timeframes. An alibi supported with evidence is most likely to be expected on Saturday afternoon. The results show that the perfect alibi to which police detectives compare a suspect’s alibi is an illusion because only 7% of innocent people can present strong physical evidence (i.e., video recordings), and therefore, the base rate of alibis should be taken into account when evaluating alibis.

{ Journal of Investigative Psychology and Offender Profiling | Continue reading }

Citigroup is suing AT&T for saying thanks to its own loyal customers […] Citigroup has trademarks on the phrases “thankyou” and “Citi thankyou,” as well as other variations of those terms.

{ Ars Technica | Continue reading }

In a patent dispute between two pharmaceutical giants arguing over who owns the royalty rights to a lucrative wound-dressing solution, […] three judges coined a new legal definition of “one”. […]

The ConvaTec patent covered any salt solution “between 1 per cent and 25 per cent of the total volume of treatment”. However, Smith & Nephew devised a competing product that used 0.77 per cent concentration, bypassing, or so it believed, the ConvaTec patent. […]

Their lordships concluded that “one” includes anything greater or equal to 0.5 and less than 1.5  – much to the chagrin of Smith & Nephew.

{ The Independent | Continue reading }

For the student of negotiation, Breaking Bad is an absolute treasure trove, producing an incredibly complex and varied array of bargaining parties and negotiated transactions, episode after episode. What’s so fascinating about these transactions is that they draw on familiar, foundational negotiation concepts in the service of less familiar, usually illicit ends. Put another way, when we watch Walter White negotiate, we watch a mega-criminal anti-hero implement the same “value-neutral” strategies that we teach lawyers and businesspeople. […]

This article examines five negotiations, one from each season, each featuring Walter White. The close readings provided show how the five negotiations demonstrate and/or disrupt foundational negotiation concepts or skills.

{ New Mexico Law Review | PDF | More: New Mexico Law Review, Special Edition dedicated to Breaking Bad }

DNA is generally regarded as the basic building block of life itself. In the most fundamental sense, DNA is nothing more than a chemical compound, albeit a very complex and peculiar one. DNA is an information-carrying molecule. The specific sequence of base pairs contained in a DNA molecule carries with it genetic information, and encodes for the creation of particular proteins. When taken as a whole, the DNA contained in a single human cell is a complete blueprint and instruction manual for the creation of that human being.

In this article we discuss myriad current and developing ways in which people are utilizing DNA to store or convey information of all kinds. For example, researchers have encoded the contents of a whole book in DNA, demonstrating the potential of DNA as a way of storing and transmitting information. In a different vein, some artists have begun to create living organisms with altered DNA as works of art. Hence, DNA is a medium for the communication of ideas. Because of the ability of DNA to store and convey information, its regulation must necessarily raise concerns associated with the First Amendment’s prohibition against the abridgment of freedom of speech.

New and developing technologies, and the contemporary and future social practices they will engender, necessitate the renewal of an approach towards First Amendment coverage that takes into account the purposes and values incarnated in the Free Speech Clause of the Constitution.

{ Charleston School of Law | Continue reading }

photo { Bruce Davidson }

With the First Amendment, you’re never protecting Jefferson; it’s usually protecting some guy who’s burning a flag or doing something stupid. […]

Here’s the brilliant thing they did. You embarrass them first, so that no one gets on your side. After the Obama joke, no one was going to get on the side of Amy, and so suddenly, everyone ran for the hills.

{ George Clooney/Deadline | Continue reading }

photo { Christopher Morris }

Crimes such as bribery require the cooperation of two or more criminals for mutual gain. Instead of deterring these crimes, the state should disrupt them by creating distrust among criminals so they cannot cooperate. In a cooperative crime with two criminals, the state should offer amnesty and a bounty to the criminal who first secures punishment of the other criminal. When the bounty exceeds the bribe, a bribed official gains less from keeping the bribe than from confessing and receiving the bounty. Consequently the person who pays the bribe cannot trust the person who takes it. The game’s unique equilibrium is non-cooperative and bribes disappear.

{ Review of Law & Economics }

[T]he Office will refuse to register a claim if it determines that a human being did not create the work. […]

[T]he Office cannot register a work purportedly created by divine or supernatural beings. […]

A musical work created solely by an animal would not be registrable, such as a bird song or whale song. Likewise, music generated entirely by a mechanical or an automated process is not copyrightable. […]

To qualify as a work of authorship a choreographic work must be created by a human being and it must be intended for execution by humans. Dances performed or intended to be performed by animals, machines, or other animate or inanimate objects are not copyrightable and cannot be registered with the U.S. Copyright Office.

{ U.S. Copyright Office /Popular Science | Continue reading }

Does Having Daughters Cause Judges to Rule for Women’s Issues?

Using new data on the family lives of U.S. Courts of Appeals judges, we find that, conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion on gender issues than judges who have only sons. This result survives a number of robustness tests and appears to be driven primarily by Republican judges. More broadly, this result demonstrates that personal experiences influence how judges make decisions, and this is the first article to show that empathy may indeed be a component in how judges decide cases.

{ American Journal of Political Science | Continue reading }

Paul Ingrisano, a pirate living in Brooklyn New York, filed a trademark under “Pi Productions” for a logo which consists of this freely available version of the pi symbol π from the Wikimedia website combined with a period (full stop). The conditions of the trademark specifically state that the trademark includes a period.

The trademark was granted in January 2014 and Ingrisano has recently made trademark infringement claims against a massive range of pi-related designs on print-on-demand websites including Zazzle and Cafepress.

Surprisingly, Zazzle accepted his claim and removed thousands of clothing products using this design.

{ Jez Kemp | Continue reading }

Millionaire playboy and Instagram celebrity Dan Bilzerian is best known of late for chucking a 90-pound porn star, Janice Griffith, off his mansion roof during a shoot for Hustler, and missing the pool. Griffith is now threatening to sue Bilzerian:

The highest European Union court decided on Tuesday that Google must, in some cases, grant users a so-called right to be forgotten that includes the removal of links to embarrassing legal records.

{ NY Times | Continue reading }

related { Research in India suggests Google search results can influence an election | Biased search rankings alter the voting preferences of undecided voters }

images { 1 | 2. Gregory Reid }

Giving violators more punishment than they deserve can undermine the benefits of cooperative action. […] At the same time, imposing markedly less punishment than what a violator deserves creates disaffection and acrimony that also can subvert cooperation. In other words, it is not punishment that is needed to maintain social cooperation, but justice. […]

In 1848, the discovery of gold brought 300,000 men to California from all over the world. Yet this sudden mass of humanity lived without a functioning legal system. And if there had been a legal enforcement system, it was unclear what law it would enforce. […] Without a functional government, there were no licensing procedures, fees, or taxes to regulate gold prospecting. No miner worked land that he owned. Any prospector could join any mining camp at any time. Camp populations were heterogeneous: “Puritans and drunkards, clergymen and convict, honest and dishonest, rich and poor.” There was no common language, culture, or legal experience. […] The men shared a common set of needs, however. Each miner needed to be able to leave whatever he owned unguarded each day while he worked his claim. A miner who found gold needed to protect his find until he could convert it into cash or goods.

{ Paul H. Robinson/SSRN | Continue reading }

The husband and wife team behind the handmade cosmetics company Lush – which this week won a high court battle against Amazon over its use of the word “lush” to sell rival cosmetics – has trademarked the name “Christopher North” as a brand name for a new range of toiletries, which could eventually extend to deodorants and hair removing cream. North is the managing director of Amazon.co.uk.

{ Guardian | Continue reading }

Typically, the loser of a bar fight who later initiates a lawsuit has been beaten up pretty badly, or at least has the medical bills to suggest significant personal injuries. The loser sues the bar on one of several theories — the most common ones being inadequate security, not having banned a patron known to have a history of fighting, bar employees initiating the violence, or bar employees responding to a situation with unreasonable force. But that’s the boring legal stuff. […]

Roughly equal numbers of men and women filed these lawsuits. […] Everyone I can remember had tattoos. […]

You might think that a bar fight is most commonly started between two guys fighting over a woman. That’s not so, at least not in my experience. Ejection seems to be a more precipitating event. More than half the bar fights I had to sort out started when a too-drunk patron was asked to leave and refused to do so. […]

Women were faster to employ weapons, whether prepared (the knife) or improvised. Improvised weapons are almost always thrown, and have included highball glasses, pool balls, bar stools, knives, and in one notable case, the assailant’s own feces.

{ ordinary-Times | Continue reading }