Law

London and the world is reeling from the video from yesterday of two Muslim men who killed and mutilated the body of an English soldier and then asked people to film them as they raved about their atrocity. The men reportedly screamed “Allah Akbar” as the butchered the soldier. A man now identified as Michael Adebolajo is shown promising onlookers that “you and your kids will be next.” In the midst of this horror scene however there was inspirational moments including a woman who gets off her bus to confront Abebolajo covered in blood and holding a meat cleaver. In the disturbing video below, Abebolajo proclaims “The only reason we have killed this man today is because Muslims are dying daily by British soldiers.” Of course, he did not have the courage to confront the soldier head on. He hit him with his car before butchering him and posing for YouTube. Abebolajo is shown telling viewers “Remove your governments – they don’t care about you. You think David Cameron is going to get caught in the street when we start bursting our guns? You think politicians are going to die?” He warns that more will die and “No, it’s going to be the average guy, like you, and your children. So get rid of them – tell them to bring our troops back so we can… so you can all live in peace.” Abebolajo is known by the Muslim name Mujahid. He adopts the same excuse used throughout the ages by those who use religion to justify their blood lust: “We swear by the almighty Allah we will never stop fighting you until you leave us alone. We must fight them as they fight us. An eye for an eye, a tooth for a tooth.” He then added a bizarre claim of regret . . . not for the murder of course but the women watching: “I apologise that women have had to witness this today, but in our land our women have to see the same. You people will never be safe. Remove your government, they don’t care about you.” It was in this disgusting scene of religious violence that a true representative stepped forward. She is mother-of-two Ingrid Loyau-Kennett and was on a bus when the scene unfolded. She got off the bus and, when others were walking by or cowering, she walked up to the killer and demanded that he stop. One of the killers insisted “We want to start a war in London tonight,” but she replied calmly “Right now it is only you versus many people, you are going to lose.” Yes they will Ingrid, but it is because for every grotesque monster like these two men, we have Ingrid Loyau-Kennett and human beings like her.

Here is my disclaimer:  I'm from "tornado alley."  Here is "my tornado."  The Lubbock tornado was 43 years ago (gulp), when I was an infant.  I have no memories of it, just the story that my parents told me.  We went down the street to a neighbor's storm cellar; the tornado didn't come that close to our neighborhood; we left the dog in our kitchen. This week, as the history of the Moore, Oklahoma tornado is being written, I have read articles and heard radio stories asking why more residents in tornado-prone areas don't have storm cellars or safe rooms in their houses, schools, etc.  Not only why don't residents take more precautions, but why doesn't the law require new houses have tornado protection (similar to earthquake building requirements).  I never had a basement until I moved out of Texas to the Midwest.  In West Texas, and it seems Oklahoma and maybe further north, basements aren't really necessary.  Land is flat and available.  If you want more square footage, building out is cheaper than digging a basement in the really, really hard soil.  I remember having two friends my entire childhood that had basements, and everyone was really, really jealous of them (mostly because there seemed to be a lot more kissing in basements than in main floor family rooms).  Basements would also be handy in the case of a tornado, but are rare.  Instead of digging a basement, the law could require a separate storm cellar in a backyard or attached.  The NYT article estimated this cost as $4k, which seems like a low estimate to me.  So, is adding $4k to every newly constructed home prohibitive?  Is it wise? The problem is that everyone doesn't need their own cellar, and most people will never need one.  If  you think of all the homes that are situated in tornado alley, the probability of a particular home needing a cellar is really, really low.  And the cellar doesn't save your house.  It saves you, if you happen to be at your house.  At least in the Lubbock tornado, many victims were in cars, or fleeing their cars.  (Here are some pretty interesting tornado data.)  The reporters seen to think the probability of needing a cellar is really high in Moore, which also had a tornado in 1999 (no fatalities, but property damage).  In a perfect world, there would be one storm cellar, safe room or basement per block, not per house.  That's pretty hard to regulate.  But, having a storm cellar or safe room per school or office building doesn't seem like a bad idea.  (I haven't heard anyone talk about mobile homes/trailer homes, which are even less stable than a home with a shallow foundation.) Interestingly, this same week, commentators in the news have questioned Angelina Jolie's choice to have genetic testing for breast cancer (that costs $3-4k, a little less than a storm shelter), then have a double mastectomy when she learned a rare gene gave her probability of getting breast cancer was 87%.  Well, no one in tornado alley has an 87% chance of dying in a tornado. The other variable, besides the probability that a tornado will hit not only your town, but your block, is whether you would go into the storm cellar.  Here, the NYT article and the NPR story seemed to suggest that there is a low level of panic for residents of tornado alley.  That may be true.  The summers of my childhood seemed to be filled with tornado warnings and tornado watches, which we soon began to ignore.  These warnings would shoot across our broadcast TV channels, and some families had storm radios in case the electricity went off.  But, after awhile, you get a little desensitized to the daily tornado warning.  And, of course, there are stormchasers, a category of thrill-seekers that I still don't understand.  But even non-stormchasers can be mesmerized on their way to the cellar watching the sky, which looks really awesome in the middle of a storm. But I guess what bothers me about these "why don't you have a cellar" questions is an under

Posted by D. Daniel Sokol Duarte Brito, Universidade Nova de Lisboa, Ricardo Ribeiroz, Universidade Catolica Portuguesa and Helder Vasconcelos, Faculdade de Economia do Porto are Measuring Unilateral Effects in Partial Acquisitions. ABSTRACT: Recent years have witnessed an increased interest, by...

I have long been amazed by the rate of hospital injuries from preventable bloodstream infections. While there have been a few lawsuits, hospitals appear to have avoided liability for these preventable illnesses. Now, a study in the American Journal of Medical Quality suggests that the situation may be worse than anticipated. Not only is that not a strong litigation deterrent (my view), but this study says that hospitals are actually making a killing by making patients sick. Researchers found that an ICU patient who develops an avoidable central line-associated bloodstream infection (CLABSI) costs nearly three times more to care for than a similar infection-free patient. Here is the most amazing fact: hospitals earn nearly nine times more for treating infected patients. It is insurance companies who end up getting hit with the bill as well as patients, of course. This is not to mention those patients who become gravely ill or die from this preventable illness. Private insurers pay the most for patient stays complicated by CLABSIs — roughly $400,000 per hospital stay. That fact could add pressure to hospitals to act reasonably in avoidance of such illness. Currently, there is a surprisingly high economic incentive not to avoid such illness, even if the doctors are morally bound to do so. The CLABSI infections occur when thin plastic tubes, or central lines, are placed in ICU patients. Each year roughly 80,000 patients with central lines become infected. Now consider that hospital’s average profit margin for treating an infected patient was $54,906 in comparison to an uninfected patient of just $6,506. You do the math. That is a huge amount of income. Worse yet, the failure to avoid the contamination kills 28,000 people a year. Simple checklists at hospitals have been shown to sharply decrease such contamination. In torts, we often use the Hand formula to determine negligence: B Tens of thousands of people are dying from this preventable illness but relatively little has been done by the government to force new measures or accountability. This is why litigation is sometimes the most direct way to deterring negligence and giving an incentive to take precautionary measures in environments like hospitals. Source: Hopkins

We have all had it happen. You are sitting in a restaurant or walking on the street when you accidentally hit you phone and dial an unintended call. A friend or relative then has to sit and listen to you discussing an order or chatting with a taxi driver. Scott Simon, 24, however, may have the worst butt call story of all. Pompano Beach police say that his phone dialed 911 as he was discussing his plan to kill a man. The police tracked him down just minutes after the man was killed. A police dispatcher recorded a conversation between Simon and another man on May 5th where he discussed how he was going to follow Nicholas Romondo Walker, 33, to his home and kill him. The call was made shortly before the actual killing. Walker was turning on to the interstate when he was shot multiple times. The car crashed and caught on fire. He died of the gunshot wounds, though police do not believe that Simon actually pulled the trigger as opposed to organizing the hit. Simon’s butt call may have ended a long criminal career. He has over 15 prior arrests for everything from resisting arrest, cocaine possession with intent to sell, fraud, disorderly conduct, bad checks, and driving violations. Walker also had a long criminal record. The men apparently had gotten into an argument at a Waffle House. Now here is the truly amazing thing about this story. Just days before the Fresno Police Department nailed Nathan Teklemariam and Carson Rinehart (both 20) after a butt call to 911. The police operator actually tried to get their attention to tell them that they called the police but then heard them discussing crimes to buy “weed” and proceeded to break into a car. The two men were charged with burglary, conspiracy and possession of stolen property. You can listen to the conversation: here Source: Sun Sentinel

Rosa Brooks (Georgetown University) has posted National Security in the Information Age (ECONOMICS AND SECURITY: CHALLENGES AND OPPORTUNITIES IN A RESOURCES CONSTRAINED WORLD (Newport, R.I.: Naval War College forthcoming)) on SSRN. Here is the abstract: The information environment has been changing right along with the broader security environment. Today, the information environment connects almost everyone, almost everywhere, almost instantaneously. The media environment has become global, and there’s no longer such thing as “the news cycle” — everything is 24/7. Barriers between U.S. and global publics have virtual disappeared: Everything and anything can “go viral” instantly, and it’s no longer possible to say one thing to a U.S. audience and another thing to a foreign audience and assume no one will ever set the statements side by side. The Pakistani military has a very clear idea of what the Secretary of Defense tells Congress about Pakistan, for instance — and Congress has an equally clear idea of how Pakistani leaders talk about the United States to their domestic constituencies. Technological changes and lower costs have also democratized the media and information environment: Internet and cell phone access is increasingly ubiquitous, and individuals and organizations are ever more reliant on electronic communication. Today, news, commentary, and video can be produced and accessed equally by first world media producers, Washington decision-makers, Iowa housewives, Afghan shepherds, Chinese university students, Colombian insurgents, and Al Qaeda members. As with the security environment more broadly, the rapidly changing information environment creates both new challenges and new opportunities for the US government. The author emphasizes that this is true across the executive branch. All USG agencies, from Defense to State to Treasury and beyond, are struggling to adapt anachronistic programs and policies. Highly recommended.

Posted by D. Daniel Sokol The 2013 Mark T. Banner Award of the ABA Section of Intellectual Property Law has been awarded to Christina Bohannan (Iowa Law). Christina writes on IP and competition, among other topics. The Mark T. Banner...

Tessa L. Dysart (Regent University School of Law) has posted The Protected Innocence Initiative: Building Protective State Law Regimes for America’s Sex-Trafficked Children (Columbia Human Rights Law Review, Vol. 44, 2013) on SSRN. Here is the abstract: Under the federal...

The Times reported earlier today on the truly disgraceful decision of Senate Democrats on the House Judiciary Committee to capitulate to Republican homophobia by withdrawing an amendment by Senator Leahy that would have allowed, in the Times's language "United States citizens to apply for permanent resident status, known as a green card, on behalf of their same-sex partners." Senator Charles E. Schumer, Democrat of New York and an author of the measure, said that not including the provision amounted to “rank discrimination.” But he ultimately concluded, “As much as it pains me, I cannot support this amendment if it will bring down the bill.” Similarly, Senator Al Franken, Democrat of Minnesota, said: “This is the definition of a Hobson’s choice. In my bones, I believe in equality.” But [South Carolina Republican Sen. Lindsay Graham, up for re-election in 2014 and desperately afraid that he will be "primaried" by Ted Cruz and his friends] reflected the view of his Republican colleagues when he said: “You’ve got me on immigration. You don’t have me on marriage. If you want to keep me on immigration, let’s stay on immigration.” Ultimately, Mr. Leahy withheld his amendment “with a heavy heart,” though he can still bring it up on the Senate floor. Friends, now we should understand why decent people agreed to the 3/5 Clause and why FDR adamantly refused to support a federal anti-lynching bill or, for that matter, was indifferent about the non-extension of the benefits of much of the New Deal to African-Americans in the South. As Ira Katznelson demonstrates in a brilliant book, Fear Itself, on the Roosevelt and Truman presidencies, FDR needed congressional support for the New Deal, and the only way he could get it from Southern economic liberals (and former Ku Klux Klan members, like Hugo Black) was to promise that it would be, as much as possible, a "whites only" affair. And, in 1787, the only way to get a Constitution was to capitulate to slaveowners and, for that matter, to the extortionate demands of Delaware and other small states for equal representation in the Senate. As Madison said with regard to the latter, it was a "less evil" than no Constitution at all, but an evil it remained, and he was absolutely right, as was, obviously, even more the case with the aspects of the Constitution that correctly led William Lloyd Garrison to describe it as a Covenant with Death and an Agreement with Hell. But, as I myself wrote in the Times during the kerfluffle a couple of months ago about the 3/5 Clause, one sometimes has "to accept some regrettable, even “evil,” means to achieve that end. That’s the way the world works. (Think of the altogether justified alliance with Stalin to defeat Hitler.)" But, of course, this is far too facile. Most of the readers of this blog are not likely to be affected in the least by the withdrawal of the amendment, just as the whites who decided that slavery was "worth it to get the Constitution paid no price--to some extent, of course, Virginia did pay a price for submitting to Delaware's extortion). And most of those who counseled FDR to accommodate to racism paid little or no price themselves.One should not gussy up the character of the people with whom mpromises were made in 1787 or in the ;30s. At worst, Lindsay Graham is simply a bigot; a "best," he is a cowardly opportunist, scared of losting re-election, who after re-election, may "discover" that someone in his family is gay and, like Sen. Portman, suddenly realizes that that person deserves to be treated as a full member of our community. Should one be condemnatory of Shumer, Franken, or Leahy, who I assume are genuinely "heavy-hearted" about having to accommodate bigotry? Is the immigration bill worth selling out one's convictions for (at least until times are more propitious--I presume that FDR would have supported an anti-lynching bill by, say, 1948)? This is a genuine question. The answer may well be yes. The

Jorge R. Roig (Charleston School of Law) has posted Emerging Technologies and Dwindling Speech (University of Pennsylvania Journal of Constitutional Law, Vol. 16, 2013 (Forthcoming)) on SSRN. Here is the abstract: Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, reflects a continuing dissatisfaction on the part of both courts and legislatures with the current Supreme Court doctrine on First Amendment coverage. From this discussion, we can also derive some meaningful normative insights regarding the interplay between emerging technologies and First Amendment coverage doctrine. Finally, this article hopes to serve as a stepping stone in a more profound and long term pursuit of a comprehensive theory of constitutional individual rights coverage issues that might serve us well as the future brings unexpected changes in our society.