Written by: Darci G. Van Duzer
Researched by: Jay Hall
Edited by: J. Aaron Landau

Politics just wouldn’t be politics without scandals, and the scandal last week in Michigan was a doozy. Detroit Mayor Kwame Kilpatrick, after having testified in open court that he’d never been romantically involved with his chief of staff, found himself in hot water with the law (and, we assume, his wife) when it was revealed that some 14,000 text messages between the two told a very different story. As local prosecutors decide whether to seek perjury charges against the mayor (and as his chief of staff quietly resigns), this executive office romance has many asking some important questions: can the government really search your cell phone? When? Do they need a warrant? And wait, seriously — fourteen thousand texts?

It’s important to note that Mayor Kilpatrick was caught by virtue of having sent his texts using his government-issued PDA, subject to Michigan’s mandatory archiving laws. Your high-school texts are, reassuringly, probably lost to the ether. But what about the messages that are on your phone right now? They may be fair game: recent decisions of the U.S. Supreme Court and several federal circuit courts suggest that cell phone searches, when performed incident to a lawful arrest, can be reasonable and constitutional under the Fourth Amendment. Read the rest of this entry »

This morning The Legality writer Steve Glista was interviewed regarding the Scrabulous article he wrote on CBC Radio. He gave an admirable performance, and helped provide a legal perspective on what’s becoming an emotional battle between the fans of Scrabulous and Hasbro. It was rebroadcast every hour across the country.

You can listen to just Steve’s segment here (in MP3 format).

You can listen to the full interview here (Steve is the middle interview, about seven minutes in). Real Player or equivalent is required.

Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or can be substituted for “Abracadabra!” when performing stage illusions. This week’s word is the latter.

Written by: Jeff W. Richards

Void ab initio (literally: void from the beginning) is a latin phrase that frequently appears in certain types of legal argument. While it sounds deliciously complicated and lawyerly, it has a fairly straightforward meaning, and several English phrases can serve just as well. It usually crops up when one party is arguing that no contract or comparable legal document (such as a will) exists. For accomplished practitioners, it serves to signal the form the rest of the argument will take, but to the uninitiated–like most legalese–it serves as a barrier to understanding.

This particular phrase is especially handy since it may be used by either the plaintiff or the defendant, depending on who wants the document in question declared void. It is crucial to note that it is not sufficient to merely assert that a document is void ab initio. The party making that assertion has to demonstrate that the document is void for some actual reason. Read the rest of this entry »

Every week we feature an original logic puzzle for your brain-bending pleasure. They follow a format similar to those on the LSAT, and their difficulty ranges the full gamut. Good luck!

Written by: Jay Hall

There are four people: Al, Bart, Charlie and Don. They coordinate wearing hats from Sunday through Saturday one week using the following rules.

1. Charlie wears a hat three times a week.
2. Al must wear a hat on Tuesday.
3. Bart and Charlie wear hats on the same day
4. Al and Charlie never wear a hat on the same day.
5. Charlie never wears a hat two days in a row.
6. When Don wears a hat, no one else does on that day.
7. Al always wears a hat two days in a row.

1. If Bart wears a hat on Friday, who wears a hat on Monday?

a. Al

b. Bart

c. Charlie

d. Don

2. If Charlie does not wear a hat on Sunday which of the following must be true?

a. Don wears a hat on Friday.

b. Al wears a hat on Monday.

c. Bart wears a Hat on Thursday.

d. Charlie wears a hat on Wednesday.

3. If Don wears a hat on Saturday only which of the following is true?

a. Bart may wear a hat on Thursday.

b. Al may wear a hat on Wednesday.

c. Charlie may wear a hat on Monday.

d. No one may wear a hat on Thursday.

4. If rule number six is removed:

a. Don may wear a hat 4 times a week.

b. Don may wear a hat 5 times a week.

c. Don may wear a hat 6 times a week.

d. Don may wear a hat 7 times a week.

5. If rule number four is removed:

a. Bart may wear a hat 1 time a week.

b. Bart may wear a hat 3 times a week.

c. Bart may wear a hat 5 times a week.

d. Bart may wear a hat 7 times a week.

Answers after the break.

Read the rest of this entry »

Written by: Steve Glista
Researched by: Jeff W. Richards
Edited by: Amy E. Seely

Last week there was a great disturbance in the force, as though thousands of voices around the internet cried out all at once. The noise was caused by the announcement that Hasbro, Inc., the makers of the board game Scrabble, had sent a “cease and desist” letter to Rajat and Jayant Agarwalla, the brothers behind the Scrabulous online game and Facebook application. Popular news sites Gawker and Slashdot were quick to protest, and the internet was up in arms. John Carol at ZDNet complained, “the notion that Hasbro and Mattel ‘own’ the rules of the Scrabble game seems very odd.”

Despite widespread disappointment from the internet masses, many commentators agreed that Hasbro was in the right. In fact, Professor John Palfrey at the Berkman Center for Internet & Society predicted this very conflict in October of 2007. On his blog, Palfrey suggested that “One might reasonably raise copyright and trademark issues related to [Scrabulous],” although he hedged a bit by suggesting that the online imitators might “…withstand these complaints.”

As of this writing, it is still possible to register a new account and play games at Scrabulous.com, and the Facebook app is still up. The letter from Hasbro’s attorneys to the Agarwalla brothers has not yet been released to the web, but it is reasonable to assume that it would resemble this earlier cease and desist letter from Hasbro to the owners of the now-defunct website e-scrabble.com. In the e-scrabble letter, Hasbro’s attorneys assert that Hasbro has both copyright and trademark protection for the Scrabble rules and for the game board itself. Although there are differences in gameplay and in board design, experienced Scrabble players will find the Scrabulous board immediately familiar. If we accept Professor Palfrey’s guidance, Hasbro would claim that Scrabulous infringes on Hasbro’s copyrights or trademarks. Read the rest of this entry »

Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or pretentiously tossed about. This week’s word is the latter.

Written by: Amy E. Seely

The term “esquire,” or Esq. as it is commonly abbreviated, has evolved considerably over its six centuries of existence, and today is one of the many relics of the British colonization of North America. Interestingly, although the eventual colonial break from mother England symbolized a growing distaste for tyrannical kings and unearned titles, our newly emancipated forefathers still had a taste for a hint of occupational hierarchy. Those early American patriots, many of them lawyers themselves, soon found a way to turn a gentleman’s birthright into a source of professional pride.

The word’s origins date back to the high Middle Ages, where young country gentlemen known as squires served as assistants to England’s knights. In those days, the term literally meant “shield bearer,” and was therefore descriptive of the duties the position entailed. Later, the term would be used in Britain to denote a man of “gentle birth,” which could range in definition from noble relations to wealthy landowners, and was generally added after the surname to show the status of the individual. However, the evolution of the term didn’t end there. In time, a name like William S. Preston, Esq. not only denoted a man of the gentry, but specifically a member of the upper gentry, and not to be confused with the (ahem) lower gentry.

Unfortunately for the real members of that class, however, ambitious men of lower social statuses soon realized that practically anyone could add an Esq. and hold themselves out to be a member of the upper class. Over time, as the title was absorbed by the common folk, its prestige dwindled, and although the title is still used in the United Kingdom today there is essentially no distinction between the use of “Mr.” and the use of “Esquire.” Read the rest of this entry »

Every week we feature an original logic puzzle for your brain-bending pleasure. They follow a format similar to those on the LSAT, and their difficulty ranges the full gamut. Good luck!

Written by: Alexander JL Theoharis

Derek, Eli, Forest, Gary, Henry, Ivan, and Jesse are knights sitting around a square table. Each side of the square holds one person, and each corner holds one person. There is one empty seat, since the King recently passed away.

1. Forest and Eli are not seated on a corner.
2. Forest and Jesse are seated next to Ivan.
3. Jesse is seated to the left of the empty seat, as he was the King’s left-hand man.
4. Eli is seated across from Jesse, so they can keep an eye on each other.
5. Gary and Derek are brothers and are always seated next to each other.

1. Who is seated to the right of Eli?

a. Henry

b. Gary

c. Forest

d. Derek

e. Ivan

2. For the purposes of this question, assume the empty seat is next to Derek. Who is seated to Eli’s left?

a. Henry

b. Gary

c. Forest

d. Derek

e. No one.

3. If Eli and Jesse become on better terms and Rule 4 is removed, who is seated to the right of the empty seat?

a. Eli

b. Gary

c. Derek

d. Gary or Derek

e. Gary, Derek, or Eli

Answers after the break.

Read the rest of this entry »

Written by: Kimberly Brandt
Researched by: J. Aaron Landau
Edited by: Stefanie Herrington

Forget American Idol, the biggest thing to hit the entertainment industry this winter has been the Writers Guild of America going on strike. With the current flood of reality television, the networks are missing out by not capitalizing on this. Think about it: throw all the negotiators in one house, mix in a bunch of cameras and toll-free phones lines, then let America decide. Add in a few celebrity guest stars, et voilà ! Ten weeks of ratings success. Why? Because unless we vote, our favorite shows will forever be in reruns. Genius.

I jest — sort of (give me a few more weeks of House repeats and I’ll forget the idea’s impracticality). When the WGA went on strike November 5, 2007, most of the general public, myself included, never imagined that the Writers’ Strike would last more than a month; certainly not long enough to have a substantial impact on our television habits. Now, as we approach the third month of the strike, viewers are feeling the effects of the strike full-force, leaving us with the question: When will it end?

This article is not intended to be an argument either for or against either side of the dispute. Nor is it a discussion of what the writers are asking for. Rather, I’m looking at the settlement process. What should be going on right now in negotiations and why is it not happening? Read the rest of this entry »

Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or could prove a matter of life-or-death to our readers (perhaps in some sort of deadly legal-trivia type situation).

Written by: Jeff W. Richards
An affirmative defense is a legal strategy used by defendants in which they admit to the case against them, but offer an excuse, justification, or rationale for their behavior that nullifies the criminal charges or civil liability they have incurred. In essence, this is the “Yeah, I did it, but it’s not my fault!” defense. When an affirmative defense is offered, the focus of the trial shifts from proving the facts underlying the complaint or charge to proving the facts underlying the defense.

Note that an affirmative defense typically shifts the burden of proof from the plaintiff to the defendant. This is because the defendant has effectively admitted their guilt in the lay sense of the word, and so need to prove that there are other facts that excuse their actions. The degree of proof the defendant will have to offer will depend on the circumstances of the case. The burden does not shift to the defendant in all circumstances. Especially since the turn of the century, there has been a shift toward requiring the prosecution to prove every element of its case, including proving that an affirmative defense does not apply.

Affirmative defenses can be either substantive or procedural. As an example, substantive affirmative defenses include Self-Defense, Insanity, or Duress. These defenses address the “substance” of the charges by contesting the facts. Examples of procedural affirmative defenses include asserting Statute of Limitations or Estoppel. These defenses deal with the procedural rules for bringing claims in court.

Not all affirmative defenses are perfect. While some things, such as self-defense, are absolute defenses, others, such as provocation, offer only partial defenses. A successful partial defense can reduce the severity of the charges, such as reducing murder to manslaughter.

There are several forms of defense other than the affirmative defense. Any defense that attacks the facts making up the case or complaint against the defendant are not affirmative defenses. Examples of these include alibis, impeaching the credibility of witnesses, or otherwise attacking the evidence presented by the plaintiff or prosecution.