Written by: Jeff Hinman
Researched by: Darci G. Van Duzer and Tom Borton
Edited by: Eric Wasik

Last month, a writer for an Italian website revealed that the end user license agreement (EULA) for the Windows version of Apple’s web browser, Safari, prohibited installation of the software on a PC. Much to the embarrassment of Apple, the attorneys who prepared the Safari-for-Windows EULA overlooked this term while adapting the agreement from the Mac-only version. Apple has since modified the “Mac-only clause” to allow installation and use on “each computer owned or controlled by you.” Apple may have fixed the problem for now, but this slip-up highlights the fact that very few people read EULAs — sometimes not even the attorneys who are paid to write them.

With the click of a mouse, EULAs that accompany software (called click-wrap agreements) can become binding contracts. That “I Accept” button might take away your right to a jury trial, your right to exclusive use of your own work, or even your right to criticize the product that you are downloading. Some EULAs exist just to protect the company offering the product. Users under 18 violate Google’s EULA whenever they use Google’s search engine or login to their Gmail.com accounts, a provision that’s included to protect Google from liability rather than actually prevent underage users. Other EULAs are created with teeth: World of Warcraft’s EULA bans online gamers who violate it by using a program that automates gameplay to hasten “leveling-up” or to generate currency.

The Mac-only provision appears to be a quickly remedied oversight, but before anyone noticed Apple’s mistake, scores of PC users downloaded and installed Safari (as part of an Apple Software Update for iTunes) and were in violation of Apple’s explicit terms of use. If Apple’s Mac-only provision had been intentional, could they have enforced those original terms? In other words, is a click-wrap agreement a binding and enforceable contract?
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Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or can steer you toward the deepest pockets. This week’s word is the latter.

Written by: Darci G. Van Duzer

Erma Workingmom was panicked by the sudden demolition of her white picket fence as the delivery truck backed into her tiny yard. Her brother James Esquire consoled her with the words, “Don’t worry. We’ll get the money from Delivery Service.” Erma silently wondered how that was possible… the delivery service wasn’t at fault, only the driver. Little did she know, a force was fast at work distributing the burdens of economic losses and protecting innocent third parties. This force was tort law, and in this particular case, the common law doctrine of respondeat superior.

Literally meaning “let the master answer,” the respondeat superior doctrine used to be applied to master-servant relationships. It was intended to provide injured parties with an avenue to recover from the moneyed pockets of the master rather than just the moneyless pockets of the servant. While suing the servant was still an option, society viewed it as desirable to also hold accountable the one directly benefiting from the overall enterprise. Employers today are familiar with this doctrine; they are often considered vicariously liable for the injuries inflicted by their employees if the injuries occur within the scope of employment. Generally, the employer is not liable for an employee’s intentional torts, (unless they were committed in furtherance of the employer’s business). Whether an employee was acting within the scope of employment is often determined by looking at the time, place, and circumstances of the event, and whether the employee was acting for the benefit of the employer.

For example, let’s say in Erma’s case the delivery driver was making a routine stop to deliver a package when he backed into her fence. The driver was clearly acting within the scope of his employment as a delivery driver; it was performing the duties he is paid to perform, for the benefit of the delivery service, and was not intentional. If, however, the driver had been visiting his paramour illicitly when he was supposed to have been working, he might not only find himself fired, but also personally liable for the damage to the fence caused in the course of his frolic away from work. The unlucky driver could also be liable if he intentionally backed into the yard because he did not like Erma’s garden gnomes. As irritating as lawn ornaments are, the driver’s malicious intentions would most likely serve to clear the Delivery Service of liability (unless the driver was acting on behalf of the Service). If all of this seems a little unfair, remember that although the master may have to shell out the bucks, the master is typically also the one with insurance!

Written by: Nick Caleb
Researched by: Steve Glista
Edited by: Kimberly Brandt

Some documents are just too good to keep to yourself. Recently, the Department of Justice released sections of a second “torture memo” written in 2003 by John Yoo, formerly an attorney at the Department of Justice. This memo supplements the leaked 2002 memo written by Yoo and then-head of the Office of Legal Counsel for the President, Jay S. Bybee. The first memo argued that torture only occurs if an interrogator actually intends — and causes — organ failure or death during interrogation. Anything less may be cruel, inhuman, or degrading treatment or punishment (which are all flatly banned by international treaty and the Geneva Conventions), but not torture.

The second memo took it one step further, discussing possible defenses for those accused of torture, as well as the idea that “[their] Office recently concluded that the Fourth Amendment had no application to domestic military operations.” The authors of the memos undoubtedly intended to keep them private… how did they end up all over the media?

In fact, this memo would never have been publicly released if it weren’t for a law called the Freedom of Information Act, or “FOIA.” In this case, the American Civil Liberties Union (ACLU) utilized FOIA and fought a legal battle for almost four years to compel the Department of Justice to release the documents.

FOIA has been used to obtain government information on a wide range of issues, including everything from FBI information on pop culture icons (like Elvis and Frank Sinatra), to notorious criminals (such as Bonnie & Clyde and Al Capone), to famous scientists (like Einstein), and even paranormal activity (UFOs, Roswell, and ESP).

What exactly is this tool and how does it help the public acquire the necessary knowledge to participate effectively in democracy?
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Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or could save you from a painfully embarrassing mispronunciation at your next office party. This week’s word is the latter.

Written by: Darci G. Van Duzer

Most people have, from time to time, found themselves stranded in front of the television set at 2 a.m. suffering from an acute case of insomnia. During the course of the fascinating late night infomercial hawking the new caulking ray-gun home security device that seals cracks while preventing ninja attacks, the announcer states, “This item is 100% guaranteed; created by a bona fide expert in the field.” Although the brain realizes that the use of Latin somehow lends credibility to the announcer, what exactly does “bona fide” mean?

“Bona fide”- pronounced bo-nuh feid, NOT bo-nuh fee-day - literally signifies “in good faith,” but has evolved in common parlance to encompass a variety of meanings dependant upon its context. Generally, the term is used to denote that a person or thing is genuine, that something is without fraud or deceit. People often refer to someone’s “bona fides,” meaning their credentials or documentation. The phrase is also used to emphasize authenticity or legitimacy, such as a bona fide artist, or bona fide prodigy.

When used in the legal context the term takes on a somewhat different meaning. More often “bona fide” will have to do with a person’s state of mind or intent. In contract law the term refers to the requirement that parties entering into a contract or transaction do so in good faith, without fraudulent means or motives. The absence of this good faith intent (or honesty) can void a contract in some cases, and may be a factor weighed by the court in deciding damages. A “bona fide occupational qualification” is an affirmative defense in employment discrimination cases allowing employers to consider certain characteristics when hiring or firing employees that would otherwise be unlawful under civil rights laws. This defense essentially means that the employer has a genuine and valid reason for its decision not arising from unlawful discrimination. The “bona fide purchaser” is a term used in the law of real and personal property to refer to an innocent party who purchases property without notice that anyone else already has title or claim to that particular property. Again, the term “bona fide” refers to the intent of the party as being genuine or without deception.

The mere use of the term “bona fide” cannot in and of itself authenticate the intent of a person, a fact that late-night viewers would be well served to remember. Though the ray-gun expert may be what he or she claims, and there may in fact be a roving band of ninjas bent on home invasion, chances are that the expert’s bona fides aren’t really that bona fide.  The law can only require good faith; it can’t ensure that it always exists.

Written by: Ed Bushnell
Researched by: Jeff Richards
Edited by: John Deininger

On March 30, six teenage girls in Lakeland, Florida, allegedly took turns beating 16-year old Victoria Lindsay for half an hour while two teen boys acted as lookouts. Planning to broadcast the beating on YouTube and MySpace as an apparent retaliation for insults Lindsay posted on her own MySpace page, the girls took turns videotaping the attack.

Polk County Sheriff Grady Judd was upset about the incident, and upset about the way the teens reacted to their subsequent arrest: “They were laughing and joking,” he said. In fact, Grady was so appalled at the alleged behavior that he released parts of the videotaped beating. Within days of its release, the video and the sheriff’s statements were broadcast in print, television, and online sources around the country.

The media blitz was stymied on April 9, when a Florida judge issued a gag order, restricting lawyers, law enforcement and witnesses from releasing information about the case. Rusty Franklin, who is representing one of the alleged lookouts, requested the order in response to what he described as the “barrage of inflammatory, prejudicial information” pertaining to the case.

Why does it matter if parties affiliated in the case release information to the general public? Isn’t it their First Amendment right? A gag order represents the clash and compromise between two fundamental rights: the right to free speech, and the right to a fair trial.
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Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or could make you rethink a spur-of-the-moment marriage to that person you just met in Vegas. This week’s word is the latter.

Written by: Lauren E. Trent

Given the media hype often surrounding celebrity annulments, it is no surprise that the process is commonly misunderstood as an easy way out of a bad decision. Divorce is something we all understand — for whatever reason the parties ask the courts to end a completely valid marriage. It is often a long process, including standard waiting periods before the divorce will be final. Petitioning for an annulment, on the other hand, means asking a court to immediately declare the marriage invalid. Since an annulment treats a marriage as if it never happened (which may be highly attractive, depending on who you married), it will only be granted in very limited circumstances.

Under most states’ laws, grounds for annulment exist if the marriage was unlawful, where there was fraud, duress, undue influence, or a party did not have the capacity to consent to marriage. Duress and undue influence are simple concepts: it’s about pressuring one party into the marriage or taking advantage of them to the extent that they do not exercise free will. An unlawful marriage might involve people who are too closely related under state law, or where one party was already married. Fraud may come up where one party lied to the other about something important in order to convince them to marry. The significance of a lie warranting annulment varies from state to state, but the quintessential example would be “You’re the father of my baby and I want us to be a family.” (Sadly, “Of course we’ll share household work equally!” does not constitute fraud.)

How about the fabled trip to Vegas that results in a marriage to a stranger? A court might find that one or both parties did not have the capacity to consent to a marriage if they were overly intoxicated. Failure to consent could also be any impairment that causes a person to not understand the nature, effect, and consequences of marriage when they entered into it. Minors (as defined by the particular state) are generally considered unable to consent to marriage, though there are circumstances under which a court will find that a valid marriage exists despite a party being underage.

The final way out of that Vegas marriage might be on the grounds that it was a joke. While joke weddings are no laughing matter, courts are likely to let the parties off the hook with an annulment when one or both of them never had any intention of taking on the obligations of marriage in the first place. Just remember: courts consider annulments carefully, and the fact that you just met the bride won’t be reason enough for a judge to declare that the marriage never happened.

Oregon Law Review has published Volume 86, No. 1. In operation since 1921, the journal is the largest at the University of Oregon.

To read their newest and past issues online, or for subscription information, visit their website.

Written by: Alexander JL Theoharis
Researched by: Jay D. Hall
Edited by: Peter Fehrs

Despite his untimely death in 1995, formerly prolific rap artist Tupac Shakur has continued to influence the world from beyond the grave. The most recent ripple came from a set of supposed FBI documents implicating Sean “Diddy” Combs in Tupac’s 1994 murder attempt. Mr. Combs has long claimed no involvement in the attack, and the new revelations caused him to issue a press release calling the entire thing an utter fabrication. The LA Times’ veteran reporter Chuck Phillips wrote a story based on the documents that garnered more than a million visitors — more than any other story on the site.

The problem? As it turns out, the supposed FBI documents were flat-out fakes. In a scathing analysis of the alleged documents, the Smoking Gun reveals that the LA Times’ “informant” is a known con man currently serving time. What’s worse for the Times: its failure to properly check facts leaves them open to a potentially damaging defamation lawsuit. “I would suggest to Mr. Phillips and his editors that they immediately print an apology and take out their checkbooks - or brace themselves for an epic lawsuit,” Sean “Diddy” Combs’ lawyer said Wednesday.

Subsequent to these details coming to light, the LA Times has done an excellent job of purging the story from the internet — any former links to it redirect to an apology, and the paper published a retraction. With the Times licking its wounds and admitting its mistakes, is there any ground left to sue the country’s fourth-largest newspaper? If so, what can Mr. Combs expect to receive as damages? Read the rest of this entry »

Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or a matter of life-and-death. This week’s word is the latter.

Written by: Steve Glista

Henry Brown was shot as he tried to break into an apartment in Columbus, Missouri. Joe Horn shot and killed two men as they were running away from a home in Pasadena, Texas. Ashton Brown shot Damarcus King as Mr. King tried to force his way into a home in Cleburn, Texas. And William Wilkerson shot and killed Jason Payne through the window of Wilkerson’s pickup truck outside of a party in Palm Beach, Florida.   

In most situations, American law goes out of its way to discourage people from trying to kill each other. Why might all of the shooters named above avoid prosecution?  Each of the shootings happened in a state that has recently enacted a version of the so-called “Castle Doctrine.” These laws can be traced to the old cliché that states “a man’s home is his castle.”

Castle Doctrine laws are in part a reaction to the potential for an unjust outcome in American law. In theory, a non-violent robber injured by his victim could win a lawsuit if the victim used too much force to defend himself. A robber’s estate might win a suit for wrongful death if the victim killed the robber instead of safely retreating from the confrontation.

Beginning with Florida in 2005, many state legislatures acted to prevent this potential injustice. Today, Castle Doctrine laws in thirty different states allow a person to use deadly force against anyone who illegally enters their home. In some of those states, the privilege extends to automobiles, workplaces, or any “occupied habitation,” such as when the shooter is threatened while in the home of another person (as Mr. Brown was when he fired his weapon at Mr. King).  

Most of the new laws have three main features in common. First, they remove the duty to retreat from some confrontations. Second, they codify the assumption that anyone attempting to enter an occupied home illegally has the capability and the intention to use deadly force. Finally, most of the new laws expressly remove criminal and civil liability from the shooter if his use of force fits within the boundaries of the law.  

Proponents of the Castle Doctrine argue that it will prevent home invasion robberies, because would-be robbers will back down once they realize that their lives are on the line.  Critics argue that lethal violence is an inappropriate response to property crimes, and that any deterrent effect will be more than offset by an increase in gun-related homicides. Since the laws are relatively new, it’s not yet apparent whether any state that has adopted the Castle Doctrine has seen a significant reduction in crime. However, one thing is clear: anyone planning a surprise visit to friends or family in a state with a Castle Doctrine law might want to call ahead.