ZiefBrief

Professor Hing on Trayvon Martin's Death

Professor Bill Hing just published the post, "Honor Trayvon Martin's Death: Declare War on Racism," on HuffPost -- from the article:

The tragic shooting of 17-year-old Trayvon Martin highlights the sad truth that racial profiling of African Americans and the country's racial divide continue. The juxtaposition of this incident and the winding down of our military involvement in Iraq and Afghanistan provides us with an opportunity to declare another war -- a war on racism in America. With race on the front pages, the opportunity is ripe for President Obama and the GOP presidential hopefuls to declare war on bigotry and hate.

Freiwald's Fourth Amendment Arguments Sway Court

A U.S. District Court Judge has sided with compelling constitutional law arguments made by USF Law Professor Susan Freiwald and the Magistrate Judge in the decision below. In a single-page Order on Objections, Judge Lynn Hughes of the Southern District of Texas noted Professor Freiwald's amicus brief, along with a brief submitted by the EFF and ACLU, as an aid in arriving at his decision.

This most recent action arises out of an opinion by Magistrate Judge Stephen Smith of U.S. District Court in the Southern District of Texas. He denied the government access to a cellphone subscriber’s data absent a search warrant. Judge Smith's decision noted that cellphone tracking could allow the government to compile a "digital dossier" tracking a cellphone users movements and activities. To read the full decision click here.

The present Order is in response to the government's appeal of Judge Smith's decision. In her amicus brief Professor Freiwald urged the court to treat such records as deserving the full protection of the 4th Amendment of the U.S. Constitution. Such protected records could only be released to investigators who have received a warrant issued on probable cause. As the court put it, cell phone location records "... would show the date, time, called number, and location of the telephone when the call was made. These data are constitutionally protected from intrusion."

This decision is sure to generate discussion, starting with an entry in a Wall Street Journal blog: Judge Declares Law Governing Warrantless Cellphone Tracking Unconstitutional

Click here to read full order (.pdf).

Click here to read Professor Freiwald's full amicus brief (.pdf)

Waiting for bar results? No overtime pay for you!

According to the Cal. court of appeals, poeple waiting for their bar results have already joined a "learned profession" which means that the law firms they work for don't have to pay them overtime. Traditionally, professionals have been exempt from the California wage and hour rules that require overtime pay, meal breaks, and other benefits. This marks an expansion of an earlier ruling that stated that employees of accounting firms who assist accountants conducting aduits are also learned professionals.

No word on whether bar-takers are also exempt from CAL-OSHA rules concerning hazardous working conditions.

You can read the complete decision at www.courtinfo.ca.gov/opinions/documents/A130540.DOC

Ohio Deposition Hi-Jinks

Most people wouldn't have a hard time determining whether their office had a photocopier or not. You would think that the acting head of information technology for the recorder's division of the Cuyahoga County fiscal office should be able to answer the question. But in a recent deposition the existence or non-existence of an office photocopier was a source of much discussion. Some of the best banter:

Deponent: When you say "photocopying machine," what do you mean?

Questioning Attorney: Let me be -- let me make sure I understand your question. You don't have an understanding of what a photocopying machine is?

Deponent: No. I want to make sure that I answer your question correctly.

Deponent's Attorney: Dave, I'll object to the tone of the question. You make it sound like it's unbelievable to you that he wouldn't know what the definition of a photocopy machine is.

Questioning Attorney: I didn't ask him to define it. I asked him if he had any.

Deponent: When you say "photocopying machine," what do you mean?

Questioning Attorney: Let me be clear. The term "photocopying machine" is so ambiguous that you can't picture in your mind what a photocopying machine is in an office setting?

Deponent: I just want to make sure I answer your question correctly.

See the article at http://blog.cleveland.com/metro/2011/03/identifying_photocopy_machine.html for a more complete transcript of the exchange.

US Court of Appeals Protects Privacy of Stored E-Mail Thanks in Part to Prof. Freiwald

As noted in a previous blog entry on Zief Brief, USF professor Susan Freiwald co-filed an amicus brief in United States v. Warshak [PDF of the 12/14/10 decision], a case in which the Government seized over 27,000 of the defendant's private e-mails without bothering to get a warrant. This week the 6th Circuit issued an important ruling that extends significant constitutional protection for an individuals stored e-mail messages. In addressing the constitutional issues behind their decision the court quoted directly from Fourth Amendment Protection for Stored E-Mail, an article co-authored by Professors Freiwald and Patricia Bellia of Notre Dame School of Law. Professor Freiwald has posted a complete analysis of the decision and its important implications for the future at the blog Concurring Opinions in the post Sixth Circuit Brings Fourth Amendment Protection to Stored Email. Kudos to Prof. Freiwald for the part she played in this process.

SCOTUS Gives a Shout-Out to Secondary Sources!

In a recent oral argument in the case of Chamber of Commerce v. Whiting Justice Kennedy is quoted as saying he would "look in Corpus Juris Secundum or ALR or something" to help clear up a question about "licensing." While it might have been nice if Justice Kennedy had included a source other than those published by West Publishing, it is good to see that a) Supreme Court Justices still do some of their own research and b) that they turn to secondary sources to save time and trouble. We await the day when one of the Justices says he or she will "just Google it."

Original source the always enjoyable Law Librarian Bolg, a member of the Law Professor Blogs Network.

Veterans Day

Today is Veterans Day, and ZiefBrief wishes to extend a big "thank you" to all of the men and women who have served our country.  A few websites that you may want to check out:

• A PDF of Dwight Eisenhower's 1954 Veterans Day proclamation, the first presidential proclamation of Veterans Day;
• The Veterans History Project pages at the Library of Congress - the staff favorites list has lots of great stories from veterans, including podcasts of veteran interviews;
• A history of Veterans Day from the Department of Veteran Affairs website.

 

First Star Trek, Now Monty Python Cited by Courts

 

Last week we Tweeted a blog post about a recent decision that included a reference to Star Trek's Mr. Spock. In a concurring opinion Texas Supreme Court Justice Don R. Willet quoted Spock's maxim that it was only logical that the needs of the many outweigh the needs of the few. To read the decision click here.

Now we are able to report a new addition to enlightened jurisprudence: a case from the Federal District Court for the Southern District of Texas that cites to a sketch by Monty Python. In footnote 69 of a decision authored by US Magistrate Judge Stephen Smith (available as a .pdf file from the ACLU at this link) the court makes a parallel between the ability of law enforcement agents to track the target of an investigation using cell phone location data with the demise of Mr. Nesbitt in the famous "How Not To Be Seen" sketch that appeared in both Episode 24 of Monty Python's Flying Circus and in slightly different form in the film Now For Something Completely Different.  Legal researchers who want to view the sketch should go to YouTube and search for "Monty Python" and "How Not To Be Seen" or try this link.  Thanks to USF Professor Susan Freiwald for bringing this to our attention.

Prof. Freiwald Posts About Cell Location Privacy Decision On Concurring Opinions Blog

As posted earlier, USF Law Professor Susan Freiwald filed a friend of the court brief and participated in oral arguments in an important case before the Federal Third Circuit Court of Appeal. This morning she posted her take on the case in the well-regarded law blog Concurring Opinions and attempts to put the decision in its proper perspective. She does a great job of breaking the decision down by analyzing the parties and their arguments, the court's statutory and constitutional analysis, and what will happen next.

To read the complete blog post click here.

Breaking News: Cal. Prop. 8 Overturned

In the first case of its kind to go before a federal court, US District Court Judge Vaughn Walker ruled that controversial Proposition 8 banning same-sex marriage is unconstitutional on both due process and equal protection grounds. The decision is all but certain to be appealed to the Ninth US Circuit Court of Appeals with an eventual trip to the US Supreme Court.

The servers for the District Court are currently unavailable due to the volume of internet traffic. Click here for a copy of the opinion from the San Francisco Chronicle web page:  Download Prop-8-Ruling-FINAL