Written by: Amy E. Seely
Researched by: Kirk Strohman and Dean Micknal
Edited by: Nick Caleb and Tracy Frazier
Managing Editor: Lauren E. Trent

Each October in the United States, grocery stores beef up their candy displays, and thrill-seekers go searching for the scariest movie, creepiest haunted house, or spookiest ghost story. Indeed, horror movies about the Devil and his minions, claiming to be “inspired by actual events” tend to fly off the shelves as All Hallows Eve approaches.

Although such real-life claims of demonic possession may be a touch more believable during this season of thrills and chills, during the rest of the year, most people have a hard time believing “evil spirits” can cause criminal behavior. This begs the question: once the body count is totaled, an arrest is made, and the evidence is collected, can a claim of “the Devil made me do it” ever act as a defense?

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Written by Roberta Mann

Professor Roberta Mann teaches tax, property, and tax policy at the University of Oregon School of Law. Professor Mann came to the UO from Widener University School of Law, where she had been teaching since 1998. Mann earned her M.B.A. and J.D. cum laude from Arizona State University, where she also served as assistant editor of the Arizona State University Law Journal. In 1995, she received her LL.M. in taxation from Georgetown University Law Center.

Professor Mann practiced in the Office of Chief Counsel of the Internal Revenue Service, concentrating primarily on the areas of partnerships, corporate, estate and gift, and natural resources. She also served on the Staff of the Joint Committee on Taxation in U.S. Congress.

Sarah Palin has always been an attractive person: at one time she was a beauty pageant contestant. Still, when Senator John McCain tapped the governor of Alaska to be his partner in a different kind of contest, the Republican National Committee (RNC) went shopping. And shopping. And shopping. Over the last two months, the RNC has dropped over $150,000 to spruce up the Palin family’s wardrobe and accessories.

This spending frenzy raises a number of disturbing questions: What were they thinking? Will Joe the Plumber like this? Do suits from Neiman Marcus fit in with the governor’s “hockey mom” image? And, most importantly from the tax attorney’s perspective, are the Palins required to treat the wardrobe enhancements as taxable income?

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Written by: Edward S. Bushnell
Researched by: Daniel Kwak and John Deininger
Edited by: Casey E. Sanders
Managing Editor: Mary Anne Nash

There are some legal jobs where you just have to get your hands dirty. Criminal defense attorney Robert Simels may have such a job - he’s known for defending high-profile alleged criminals, including foreign drug kingpins. Simels found himself searching for his own defense attorney, however, when he was arrested on September 10 for alleged witness tampering. According to the complaint based on a four-month investigation by the Drug Enforcement Agency, Simels instructed an informant to “neutralize” and “eliminate” witnesses in a case where he represented an alleged South American drug overlord. According to the complaint, such instructions constituted obstruction of justice under 18 U.S.C. 1512.

While the complaint charges several instances of criminal wrongdoing, Simels’s attorney Gerald Shargel has a different take on Simels’s behavior: “He was doing his work,” Shargel said. Intuitively, we all recognize that it is wrong to “neutralize” or “eliminate” witnesses. Any direct pressure to prevent a witness from testifying in a legal proceeding or force a witness to testify untruthfully undercuts the justice system.

However, a good attorney’s job up to and during litigation is to elicit certain testimony from witnesses while ignoring other testimony. Is this not a form of pressure, used in order to get a witness to say certain things? Can an attorney who is conducting an especially aggressive cross-examination be guilty of witness tampering? When does an attorney cross the line from “doing his work” to breaking the law?
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Written by: Matthew A. Schroettnig
Researched by: Adam Gottlieb
Edited by: Eric Blaine and Tom Borton
Managing Editor: Brady Iandiorio

Music is like, crazy, man.

It seems every time you check the news, the music industry is once again going broke as a result of some epic catastrophe. In the 1980s that catastrophe was the blank cassette tape; in the ’90s it was used-CD sales; the turn of the century brought us the MP3 format and Napster. And now, another problem has surfaced: “promotional” music CDs. So much so, in fact, that Universal Music Group (UMG) filed suit against a man named Troy Augusto in California Federal Court in May 2007. Mr. Augusto runs an eBay business named “Roast Beast Music Collectables” based around finding rare promotional albums in second-hand shops and selling them online for a profit. These CDs are distributed by music labels to radio stations, music industry executives, and other influential people as a marketing tool. UMG argued that marking the CDs with the label “For Promotional Use Only” means that UMG will own the CDs forever, and that selling them, or even throwing them away, is illegal.

Luckily for Mr. Augusto, UMG seems to have forgotten about the century-old “First Sale Doctrine.” In 1908, the Supreme Court handled a similar issue in Bobbs-Merril Co. v. Straus. Therein, Bobbs-Merril, a publisher, attempted to control the second-hand price of one of its books by inserting a detailed declaration:

The price of this book at retail is $1 net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright.

Macy’s Department Store sold copies of the book for less than $1, and Bobbs-Merril brought suit to prevent them from continuing to do so. The Supreme Court replied, in short, “That’s not how this works…” The Court stated that once a person purchases or is given a book (that is, after its “first sale”), it belongs to that person exclusively. Of course, a seller is still free to negotiate a contract or licensing agreement with the buyer regarding subsequent use of that book. But barring that, the individual is free to sell, lend, or give away the book as he or she sees fit. The First Sale rule has since been extended to cover other published materials, including movies and music. The copyright holder still retains the right to make and distribute additional copies of the original work, but that copy Joe Plumber bought with his own money? It’s his and his alone. He doesn’t have to sell it at the price the publisher sets, pay the publisher a share of the resale value, or listen to what the publisher has to say at all.

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Written by: Eric Wasik
Researched by: Edward S. Bushnell and Kirk Strohman
Edited by: Peter Fehrs and Casey King
Managing Editor: Lauren E. Trent

Every four years an invisible, omnipresent visitor arrives. You cannot escape it. It interrupts your peace as you are watching television in your living room. When you drive to work, it follows you. It is the only thing people talk about around the water cooler.

The presidential election.

It seems like everywhere you go, someone is talking about Barack Obama or John McCain. Traditionally, one could seek refuge from the race for the White House in places of worship. A new attempt to introduce presidential politics into the pulpit, however, has created a controversy that could result in some congregations losing one of their most valuable assets: their tax-exempt status.

Sermons regarding presidential candidates and politics have largely been unwelcome in worship services following the Johnson Amendment of 1954. This provision forbids tax-exempt organizations from participating or intervening in political campaigns. Most religious groups in America are tax-exempt as a result of Internal Revenue Code section 501(c)(3), which frees certain non-profit groups from paying taxes on contributions they receive. The tax-exempt status is meant to encourage Americans to engage in certain valued activities, such as religious expression or the prevention of child and animal abuse. By allowing groups that facilitate these activities to take donations tax-free, we allow them to maximize their potential charitable intake. Congress enacted the Johnson Amendment to give guidance to tax-exempt organizations regarding their political involvements, and campaigning for presidential candidates is not permitted as a tax-exempt activity.

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Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or makes your spellchecker freak out. This week’s word is the latter.

Written by: Tracy Frazier

Imagine, if you will, two dapper businessmen in their fine wool suits negotiating a contract as to who can grow his hair the longest without getting fired.  As their lawyers scramble to capture the terms that are flying out of their mouths, certain elements of their agreement go unrecorded and are left hanging in the air.

Some time passes and one of the businessmen is fired for his unruly mane.  As he dejectedly meanders out of his building, he sees the other businessman on the street and notices that his hair is slicked back with an obscene amount of Aquanet.  Peeved, he marches straight to his home filing cabinet and pulls out the dusty contract.  He scans the paragraphs again and again, searching for the line of the contract that bans the use of such styling products.  Much to his chagrin, the terms are simply missing from the document.  After an angry phone call to the other businessman (who denies having ever agreed to this “Aquanet clause”), this unemployed chap calls his lawyer and explains the situation: “I’m suing that swindler for breach of contract.  Will we be able to get this missing Aquanet clause into court?”  His lawyer sighs and responds “maybe.”

What his lawyer means is that the clause will be admissible if the courts sees fit.  This oral clause is parol evidence.  Parol is derived from the Latin word to speak.  This term is drawn from the same word as parole, which means to be released from prison “on your good word.”  These homonyms are not used interchangeably, however, so wipe the image of evidence strolling out of a jail from your mind.

Parol evidence is additional or contradictive terms that for some reason were not memorialized in the writing of the contract.  Under both the Uniform Commercial Code (”UCC”) and common law, parol evidence is a mechanism a court can use to limit how much outside of the written terms of the contract they will consider.

Traditionally, courts would not admit any undocumented terms of the contact into the trial.  But as time progressed, courts began to see the injustice that this strict doctrine could bring.  Therefore, modern courts will generally allow parol evidence insofar that it does not mislead the trier of fact (normally the judge or jury).  Under the UCC, additional or contradictory terms may only be admissible to explain or supplement, and not to contradict the terms of the contract. U.C.C. § 2-202

What is easy to forget is that parol evidence does not determine the outcome of a case.  Rather, it allows the extrinsic evidence to be considered so that the court may grasp the entire picture.  Therefore, overcoming the doctrine of parol evidence is a hurdle that our businessman must leap over if he wants the court to hear about his Aquanet clause.

Written by: Brady Iandiorio
Researched by: Tracy Frazier
Edited by: Jeff Hinman and Dean Micknal
Managing Editor: Mary Anne Nash

Apparently life in these United States has changed dramatically; orgies are more popular than apple pie. At least that’s what the defense attempted to show in a recent Florida trial. Using “Google Trends,” which shows the popularity of individual search terms in geographical areas, the defense found that several sexually explicit terms were searched more often than generic terms such as “apple pie,” “ethanol” and “boating.” By introducing this information, the defense hoped to prove that the defendant’s adult website was not considered obscene by contemporary community standards.

Currently, obscenity is measured under the “Miller Test,” which relies on the amorphous concept of “contemporary community standards,” as laid out by the U.S. Supreme Court in Miller v. California. To determine whether material is obscene, the court examines the local community affected by the alleged obscenity and asks whether the “average person, applying contemporary community standards,” would find the material to be lascivious in nature. The court next looks at the material under the applicable state law to determine if it demonstrates any sexual conduct and if it lacks value. The use of “Google Trends” data in obscenity cases would cause the concept of “community standards” to shift from the more puritanical standards most people support publicly to the more liberal ideas betrayed by their community’s private habits. For some, the idea of internet search habits helping define decency norms may make them long for the days when apple pie was truly more American than Paris Hilton’s latest sex tape.

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