May It Please The Court
Quote of the Day - Let yourself be open and life will be easier. A spoon of salt in a glass of water makes the water undrinkable. A spoon of salt in a lake is almost unnoticed.
Take It With A Grain Of .... It's Not A Pollutant Anymore
You put it on your food, it's likely on your kitchen table, you sweat it out of your body and if someone associates it with you, you've received a compliment. Crystals of it form when ocean water evaporates, and it's spread on some roads and sidewalks in the winter to melt snow and ice. It helps make great homemade ice cream, and at least one company refers to one of its qualities in its motto: "When it rains, it pours."
The last thing you'd think of "it" - salt - would be to classify it as a pollutant.
That regulation, however, suffered a little-known setback in a recent federal district court ruling in New York. The ruling holding that salt was not a pollutant under the Clean Water Act was overruled on other grounds, but nonetheless, the ruling, issued in late January, appears to be intact given the decision (subscription required) of the Second Circuit Court of Appeals. You can also read the decision here, posted on the Second Circuit's webpage.
The case, Alliance for Environmental Renewal, Inc. v. Pyramid Crossgates Co., stands for the proposition that salt is not a pollutant, but the Court of Appeals overruled the District Court's opinion on the basis of standing, a procedural technicality. Nonetheless, the Second Circuit did not overrule the District Court's ruling that salt fell outside the category of pollutants regulated by the CWA.
Copyright Issued To Pole Dancer Teaching Exercise Class
Stretching the bounds of copyright law, a pole dancer has now copyrighted her routine according to the front page of Tuesday's Daily Journal (subscription required). No, she's not performing her moves, entitled the "Flirt," the "Peek-A-Boo" and the "Cat Pounce" in a dimly-lit corner establishment, she's teaching them to other women as part of her exercise class.
With exercise boutiques (what should they be called?) in Los Angeles, New York, San Francisco and Encino, the copyrighted routine has been featured on a number of national television shows, including Oprah (five times), 48 Hours, The View, Primetime Live, The Tonight Show and The O'Reilly Factor. You'd have to ask Sheila Kelley, the copyright holder, how Encino got included in that list of illustrious cities, but I'm sure it has nothing to do with the night life there.
The erotic moves merge striptease, pole dancing and lap dancing into a cardiovascular exercise program touted as the latest fitness craze to develop in LA. And no wonder. A two-hour class will set you back $50, but you can buy the DVD and/or book if you're not nearby. According to the website, you don't need a pole installed at home to use the book or video. You can learn the beginning moves on a floor mat.
Depending on the quality of your routine, however, I'm guessing that there may be certain establishments that would be willing to rent out their poles. For example, if this "exercise routine" takes off, then cities and counties might be able to add a new revenue stream by renting out fire station poles for classes. They'd probably be fairly well attended, too, but charging admission could raise some significant legal questions that I wouldn't want to answer.
Student Coursepacks Need Copyright Permission
It may be a difference in when you went to college or graduate school, but most likely you're familiar with "coursepacks," those stacks of paper copied from portions of textbooks, articles and other publications that are part of almost every college course syllabus. They're in the news now because of what's not included in a lot of those copies: permission to use copyrighted material.
A number of publishers have been filing suits, and one in particular has filed almost 20 lawsuits against the copy centers located close to college campuses. So far only the copy centers have been targeted, but as we know from the Napster case and other precedent, the Universities, colleges and professors could also find themselves targets of the litigation based on contributory copyright infringement.
Although the sales of coursepacks is relatively small compared to textbooks - the National Association of College Stores says it's about two percent - the sales total just less than a quarter of a billion dollars. That's a big market chunk not to regulate.
Coast to Coast Internet Radio Takes On The Business of LawBeing a lawyer today takes more than a legal degree - it also means running a business. My Coast to Coast co-host Robert Ambrogi discuss the complexities of the business of law beyond the courthouse. Our special guest is Reid Trautz, who serves as Director of the D.C. Bar Practice Management Advisory Service, where he provides practice management information and consulting services to lawyers to help them improve their businesses. Reid is a nationally recognized author and he is a frequent CLE presenter at the ABA and conferences nationwide. Listen in, and learn a bit more about the business of law.
Can The Government Subpoena Reporter's Telephone Records?
We're not done with Judith Miller yet. Some time ago while she was employed, the former New York Times reporter fielded a request from the government to turn over her phone records as a part of its investigation of leaks surrounding her reporting on the Global Relief Foundation, an Islamic charity accused of funding terrorism, as well as those of another Islamic charity, the Holy Land Foundation.
The NYT sued to protect the records and the Second Circuit held arguments today. According to this AP article, NYT attorney Floyd Abrams argued, "Telephone records are the extension of the journalist herself. Telephone records are the embodiment of the speech of the journalist and require the same protection."
The government lawyer argued that the records were necessary to investigate leaks surrounding the alleged terrorist charities. In the lower court, the judge denied the government access. Stay tuned on this one, MIPTC will follow up once the appellate court issues its decision.
The Yale Law Journal--The Most Dangerous Branch Symposium
Occasionally MIPTC gets requests to publicize legal-related events. Here's one you might be interested in from The Yale Law Journal.
From March 24-26, 2006, The Yale Law Journal will be hosting a symposium on executive power titled "The Most Dangerous Branch? Mayors, Governors, Presidents, and The Rule of Law." It will cover a wide range of topics, from the scope of the President's war-conducting powers to mechanisms for limiting the reach of state attorneys general to mayoral attempts to act as independent constitutional interpreters. Through a comparison of executives at multiple levels of government, the symposium will attempt to better understand the nature of the executive role.
Participants will include: Professor John Yoo, the influential (and controversial) former Bush Administration attorney; Professor Neal Katyal, who will be arguing Hamdan v. Rumsfeld, this term's most anticipated Supreme Court case; Dean Elena Kagan of the Harvard Law School; and Dean Harold Koh of the Yale Law School.
The discussions should be lively and timely, given the increasing public interest in the limits of executive power and the wisdom of the unitary executive.
The Yale Law Journal hopes that you will help them spread the word by letting your friends know about the seminar. If you would like to register for the conference or to obtain further information, then send an email to The Yale Law Review at email@example.com. You can also obtain more information on the conference here.
"We're Not 'Within The Class Of People' Required To Pay Taxes," And Other Fantasies
When an opinion starts out with a slap in the face, you don't have to read much further to understand its outcome: "The Jibilians, who describe themselves as “citizens” of the state of California, filed state income tax returns ..." That is if you want to call the document they filed state tax returns. Putting "citizens" in quotes was my first clue that the Jibilians were going to have a hard time of it. The second was the amount of taxes they wanted to pay on their rather substantial income. Read on.
Although the Court notes that they filed state tax returns "for the years 1999, 2000, and 2001 and paid taxes for those years of $61,542, $56,730, and $90,470, respectively" and taxes of $75,000 for 2002, they apparently started to get creative with their tax returns once they secured a full tax refund of $315,000 from the federal government. Yes, you read that number right: $315,000, or so the state court opinion reports. The actual facts may be a bit different.
That alleged victory of sizable federal tax refund might embolden some people to get creative with all of their tax returns, and the Jibilians apparently thought they likewise deserved an equivalent tax refund from California, so they amended their tax returns for these four years to $0.00 for the "taxes due" line item. That's right. Zero.
Admittedly, I don't like paying taxes anymore than anyone else. But zero? How did they reach that riveting number? The Court sets out their six defenses (now known as "don't try these excuses here"):
"(1) Whether or not they earned any income, they are not 'within the class of people' required to pay income tax under federal or state law.
(2) They are not 'taxpayers' within the meaning of the Internal Revenue Code, title 26 of the United States Code, or the California Revenue and Taxation Code and have no obligation to file returns or pay a tax based on income.
(3) They had no taxable income for federal or state purposes because their earnings were not 'gain from capital, labor or both.'
(4) Their earnings were not includable as gross income under section 861 of the Internal Revenue Code (section 861) and regulations thereunder.
(5) No tax is owed because [the Franchise Tax Board] has not made any assessment against them.
(6) Because they have no taxable income for federal purposes, they also have no taxable income under the California statutory scheme."
It may not have been the smartest idea to argue these positions in front of government employees whose salaries are paid by the taxes we all pay. But then again, what other alternative do you have? If you're going to live in California, drive on our freeways, use and rely on our government services and otherwise enjoy the benefits that paying taxes create, it's hard to believe anyone that earns that much money would believe that you don't have to pay anything for all of those benefits.
Maybe they should buy an island somewhere far away and try out a new form of government. As long as I have a government there that provides everything I have here, I'd be happy to go live on that island and not pay any taxes.
Dividing Up Life Insurance Without Directions From The Insured
Law and life often collide. This collision frequently results in confusion that requires the intervention of lawyers, and sometimes courts. If the situations people created were black and white, then we wouldn't need advisers or deciders. Let me illustrate.
We're greeted with the dilemma created by Scott Parker, now deceased. Scott worked at the Bank of America, and had life insurance of just over $450,000.00 Scott was survived by Anita Pietrofitta, his widow; Eileen Marrero, his ex-wife and Zachary Dry, a son born to a third woman five months after Parker died, here represented by the Estate of Scott Parker.
Yes, if you're wondering, Scott filled out a beneficiary designation form for his life insurance, but made the cryptic designation "ES" (an estate designation) "according to the terms of my will." He didn't specify an individual like the form required.
Let's introduce the next stop in our problem. As you can see from the description of the parties, Scott got divorced. And if you guessed that he made his will during his first marriage and then after his divorce, forgot to change it, you'd be right. Under the will, then, Scott's ex-wife gets everything.
But we're not done yet - there's one more wrinkle. Scott's life insurance was governed by ERISA, and there were two ERISA plans in effect during the time that Scott was insured, and it's far from clear which plan governed at his death. If Scott's beneficiary designation is determined to be invalid, then one of the plans deems the beneficiary to be his widow and the other plan deems the beneficiary to be the estate, which means the money would go to Scott's son. Side note here by the Court for ERISA administrators: don't accept beneficiary designation forms that fail to name an individual. If they had made Scott fill in a name, you wouldn't be reading this post.
How would you sort through this mess?
Let's add in a little law, and one or two more facts. Scott resided in Arizona, which according to the Ninth Circuit opinion has a divorce revocation law that automatically revokes wills that leave money to the ex-spouse. That law conveniently cuts our problem by one-third, eliminating the ex-wife from collecting anything. Now, however, we're left with two competing claimants: the widow and the son of the third woman and Scott.
ERISA requires that beneficiary designations be a person, not an undescribed entity. Here, although Scott's will created a "person" by drafting a will, given the divorce revocation law, Scott died intestate, without a will. So, we have to turn to ERISA for guidance. We know that there are two competing plans directing the money two different ways, so who wins?
You'll have to stay tuned for the result on this one. The Ninth Circuit punted it back to the trial court to determine which ERISA plan was in effect at the time of Scott's death, which will determine who gets the money: his widow or his out-of-marriage son.
Now that you've got all but one fact, who would you give the money to?