Written by: J. Aaron Landau
Researched by: Darci G. Van Duzer
Edited by: Stefanie Herrington and Amy E. Seely

There’s an old joke among trial lawyers that there’s one crucial difference between a federal judge and God: God doesn’t think he’s a federal judge. It’s all in jest, of course, but such jokes are only funny because judges occasionally give us reason to laugh. On February 15, a California federal judge issued a series of injunctions that brought down Wikileaks.org, a site that describes itself as “an uncensorable Wikipedia for untraceable mass document leaking and analysis,” and which aims to reveal unethical behavior on the part of governments and corporations through anonymous disclosure of “smoking gun” documents. The injunction was the opening move in a suit brought by the Cayman Islands’ Julius Baer Bank and Trust (Julius Baer), which, along with its Swiss parent company, is seeking to prevent the site from disseminating documents which plaintiffs describe as “stolen confidential bank documents and account records.” (Wikileaks, for its part, calls the documents evidence of “asset hiding, money laundering and tax evasion.” What those documents reveal, though striking, is beyond the ambit of this article.)

Rather than simply ordering the offending documents removed, however, the court instead attempted to disable the site altogether by ordering Dynadot, Wikileaks’ domain name registrar, to halt access to the web address. The court then ordered any and all Wikileaks mirror sites, from India to New Zealand, to remove the offending documents and to prevent their further dissemination. It was a sweeping and expansive move that immediately aroused the suspicions of news outlets and bloggers across the web.

Several writers questioned the legal basis of the court’s action. Why wouldn’t the court simply order the documents removed from the site? What about the protections provided to websites and their service providers under Section 230 of the Communications Decency Act (CDA)? Is the publication of these, or other similar documents, protected under the First Amendment? Moreover, does the California court even have jurisdiction over Wikileaks?

Wikileaks never had the opportunity to offer those arguments and questions to the court; Julius Baer’s injunction was granted on an expedited and ex parte basis. Wikileaks will, however, have the opportunity to contest the injunction in a hearing scheduled for February 28. If Bank Julius Baer v. Wikileaks is any indication, similar cases implicating free speech on the internet are bound to appear again. Here’s what Wikileaks — or any web-based organization in a similar position — should consider in forming its response. Read the rest of this entry »

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

Written by: Kimberly Brandt

Ex parte is a Latin phrase which, translated literally, means “from the part.” In the legal world, motions or proceedings are held ex parte when only one of the parties is present and the other party may not have been notified.

This does not, however, mean that a party to a suit can have free reign to meet with the judge without the other side’s knowledge. Most courts require that the party not present be notified of the ex parte motion or proceeding and the party that is present must prove to the court that they have done so. The Fifth Amendment states that people should not “be deprived of life, liberty, or property, without due process of law.” To protect this right, the court will want to give the other side a subsequent chance to be heard and challenge the motion.

Generally, court orders that stem from ex parte hearings are temporary or for emergency situations. For example, in a domestic violence situation a victim could seek, ex parte, a temporary restraining order against the alleged abuser. In other cases, such as for a search warrant, it would be highly illogical to notify the person who will be searched that a search of their property will be requested. An application for a search warrant can be made ex parte so that the warrant can be issued without fear evidence will be destroyed or tampered with, leaving the affected person with a later opportunity to be heard.

The need to protect confidential information could also give rise to the necessity of an ex parte proceeding. The government could meet with a judge ex parte to prove that information they have regarding an alleged terrorist needs to be kept confidential. A less dangerous scenario can be found in the case of Britney Spears, where her (now former) lawyers filed an ex parte motion to withdraw as counsel before the hearing date. After a court order from an ex parte hearing is issued and the emergency situation has passed, a hearing is usually held with all parties present in order to review the legitimacy of the prior actions.

(One final note: once in a while you will see the phrase “ex parte” in a case name. In that instance, ex parte would mean the case was brought at the request of the named person alone. For example, Ex parte Milligan would mean Milligan brought the case on his own.)

Written by: Jeff W. Richards
Researched by: Matthew A. Schroettnig
Edited by: Lauren E. Trent and Steve Glista

The current wiretapping debate in Congress, and the media circus surrounding it, has focused on the expiration of the Protect America Act of 2007 (initially passed last August). The more pressing and oft forgotten issue, however, is the administration’s longstanding violation of the Foreign Intelligence Surveillance Act (FISA).

On December 17, 2005, President Bush revealed that the National Security Agency had been conducting domestic electronic surveillance for at least the four previous years. This so-called “Terrorist Surveillance Program” (TSP) was created to execute wiretaps against United States citizens and residents suspected of contacting foreign terrorist groups. The administration has avoided any substantive discussion of whether the program violates the Fourth Amendment by claiming that the details must remain secret. TSP began, and continues, on the sole authorization of the President. In an alarming violation of U.S. law, this program has allowed the NSA to spy on U.S. citizens without obtaining a warrant.

In order to conduct electronic surveillance operations, the NSA required cooperation from U.S. telecommunications companies. Any telecom companies that provided wiretap access to the NSA without requiring a warrant have violated FISA and exposed themselves to substantial liability.

There are other statutes that can authorize wiretapping of U.S. citizens, such as 18 U.S.C. §§ 2510-2522, which allows federal courts to issue warrants for wiretapping U.S. citizens for law enforcement purposes. However, all of these statutes require the agency requesting the wiretap to obtain a warrant from a federal court. By couching the War on Terror in terms of national security and by designating terrorist organizations as foreign powers, the administration has moved the TSP out of the standard federal court system and into the jurisdiction of FISA. Read the rest of this entry »

Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or may save you half your life savings after a Valentine’s Day gone bad. This week’s word is the latter.

Written by: Darci G. Van Duzer

We all know how romantic movies end-the happy couple lives together in wedded bliss to the end of their days. However, contrary to what Hollywood might want us to think, legal marriage in the United States has been viewed as a contractual secular agreement rather than a fairy tale ending. Though religion has played a fundamentally important role in the evolution of legal theories surrounding marital rights, the contract itself remains concerned with the protection of property. In the context of marriage and family these are sometimes referred to as relational rights. Today there exist three main types of interference with relational interests: Abduction, Criminal Conversation and Alienation of Affections. These concepts evolved in tort law to protect the husband’s interests in what were viewed as the “services” of his wife and children, otherwise known as his “valuable superior servants.” (Where are those romantic sighs now?)

The earliest form of abduction^[1] or harboring of the wife was known in England as the “writ of ravishment,” and true to its name, involved the forcible abduction or harboring of another’s wife.^[2] Though legions of romance novel fans may swoon at the name, the rather unromantic harm at issue was the loss to the husband of his wife’s services. This concept eventually expanded to include intangibles such as affection and companionship, and later became known as consortium, or the “bundle of legal rights to … services, society and sexual intercourse…”^[3] (Loss of consortium remains an important issue in Tort law.)

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

It’s the dream of many a young attorney (at least those paying off law school debt) to one day rub elbows with Tinseltown’s rich and famous, or, alternatively, drunk and disorderly. Luckily, this means that even the most difficult clients will never lack for representation. Despite what popular opinion may say about the members of the world’s second-oldest profession, even lawyers have their limits. A prime example is the ongoing custody battle between fallen pop princess Britney Spears and her ex-husband, Kevin Federline. Whether you’re on Team Britney, Team K-Fed, or just an innocent bystander, there’s no denying that Britney’s behavior these past few years—driving with her child on her lap, hair shaving, involuntary commitment, et cetera—is enough to make even the most patient lawyer a bit, well, crazy.

Ms. Spears (hereafter “Britney” by her own request), like many celebrities, has found herself at the center of legal controversy more than once. In her divorce and custody battles alone, she’s on her third—that’s right, third—legal team. First, Laura Wasser jumped ship not long after Britney’s divorce was finalized in 2007. Rumor has it that when it came to retaining custody of her children, the celebrity singer wouldn’t follow her lawyer’s advice. Next up was Melvin Goldsman and Marci Levine of the firm Freid & Goldsman, but a few days later Britney fired them. Round three brings us to Britney’s current legal team, members of the firm Trope and Trope, headed by Sorrell Trope. Third time’s a charm, right?

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Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or strikes the very foundations of our belief system. This week’s word is the latter.

Written by: Steve Glista

John thinks he saw brake lights before the impact. Mary knows that the light was yellow but the Impala didn’t slow down. John sees the impact of the airbag eject the cell phone from the driver’s hand, Mary notices the child seat in the back of the Honda. John is paralyzed with fear … Mary dials 911 with one hand while she runs to check whether anyone is hurt.

Even though they experience the same event, John and Mary perceive it differently. Their subconscious will filter their perceptions even further before they form long-term memories, and by the time they write out a statement for the police each might describe an entirely different set of circumstances. In the vocabulary of the law, the differences inherent in individual perceptions, opinions, biases, and beliefs are all bundled together into the term “subjective.”

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Written by: Matthew A. Schroettnig
Researched by: Stefanie Herrington
Edited by: Lauren E. Trent

Neither Tom Cruise nor the Church of Scientology is a stranger to media attention, though lately that attention has taken a very different tone. You’ve no doubt read or seen something about Tom Cruise’s controversial video, which seems to have cropped up across the media spectrum. You’ve also likely seen the Church of Scientology’s (Scientology) cease and desist letter demanding its removal, and the subsequent online declaration of war by a group calling itself “Anonymous,” which promises to “systematically dismantle” the Church. The resulting legal and public relations battle has given bloggers and lawyers alike no shortage of entertainment.

Scientology is a “religion” with a controversial past. Born of the writings of science fiction author L. Ron Hubbard in 1952, the Church is headquartered in Clearwater, Florida. Although Scientology enjoys tax-exempt status in the United States, other countries have not been as accommodating. As explained in St. Petersburg Times: “Scientology has been shut down in Greece, indicted in Spain, restricted in Russia, rebuffed by Sweden’s highest court, expelled from college campuses in Norway, convicted of crimes in Canada and denied status as a charitable organization or a religion in most European countries.”

In contrast, Anonymous is a bit harder to pin down. According to them, you are Anonymous. I am. Everyone is. A recent Fox News report characterized Anonymous as an organized group of cyber-terrorists, who counted exploding vans among their methods. While the exploding vans were an apparent result of bad reporting, their threats of cyber-terrorism don’t seem to be idle. Incensed by what they consider rampant internet censorship by Scientology and its supporters, Anonymous unveiled “Project Chanology” on January 16th, prompted to act by Scientology’s copyright claim against YouTube for hosting material from the Tom Cruise video. This “game of mental warfare” is a result of what it sees as Scientology’s misuse of copyright and trademark law, as well as attempts to subvert free speech by silencing those who speak out against them.

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For Immediate Release

LAW STUDENTS MAKE SENSE OF CURRENT LEGAL ISSUES
Oregon Law Students Create Online Journal to Combat Legal Inscrutability

With the law ever-increasing in complexity, students at the University of Oregon School of Law are fighting back. As the speed of the media has increased, the rate at which incorrect legal information can spread has outpaced the rate of knowledgeable legal opinion, leaving The Legality (www.theLegality.com), a new online law journal to tackle current events with a legal slant.

“A quick look at the message boards of the internet by anyone with a legal eye is like a punch in the face: one person claims their uncle once told them it was so, another claims how they think it should be, and everyone else jumps on board,” said Alexander JL Theoharis, creator and Editor-in-Chief of The Legality. “A big part of the problem is that–for current news stories in particular–there’s nowhere for them to turn to get a grasp of what the law actually is in a readable format.”

The Legality is the combined forces of eleven second-year law students at the University of Oregon. The site launched February 4th, and has already simplified complex events like the Hollywood Writer’s Strike, the Scrabulous Copyright Infringement Claims, and Police Search and Seizure. The site targets potential law students, lawyers who want to read analysis in various areas of law, the intellectually curious, and the media (who may be looking for depth on a story). Unlike traditional paper journals which can take more than a year to publish articles, The Legality’s coverage of popular events is made possible by a quick turnaround. Each week a topic in the public eye is selected, and over the course of four days the team assembles a comprehensive legal analysis in a style accessible even to those unfamiliar with the law.

The Legality updates three times each week with original content. New main articles are posted each Wednesday.

If you’d like more information about this topic, or to schedule an interview, please contact Alexander JL Theoharis at (206)-984-3119, or email editor@thelegality.com.

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You can read the past three weeks worth of articles by selecting among the categories to the right.

Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or is an unmentioned consequence of voting. This week’s word is the latter.

Written by: Amy E. Seely

In the United States, voir dire, which translates to “to speak the truth” in Old French, refers to the process of questioning and selecting jurors to sit for a trial. Voir dire is used to create a fair and impartial jury, which is a constitutional right protected by the Sixth Amendment. The process formally involves a general questioning session of a group of potential jurors under oath, during which individuals raise their hands to show allegiance to statements the lawyers make. The lawyers can then individually question jurors to explore potential sympathies and biases in an effort to determine if they are competent to serve, as well as which way the person will vote. Although voir dire varies from jurisdiction to jurisdiction, generally lawyers may dismiss potential jurors for cause or with peremptory challenges.

Either side may move for a dismissal for cause if a prospective juror is connected to or biased about a case. For instance, let’s say that in an assault case, a potential juror is the defendant’s close friend. Would he be an impartial, unbiased juror? Probably not, so if the prosecution’s questioning elicits this information, the prosecutor may move to dismiss the potential juror for cause. However, it is at the judge’s discretion as to whether or not to sustain this request. If the judge feels that a suitable reason for dismissal has been established, he will ask that potential juror to step down and another will take his or her place. If the judge does not feel that a suitable reason underlies the request for dismissal for cause, he can deny the request. With the goal of a fair trial in mind, challenges for cause are unlimited.

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