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shutterstock_85882270Florida v. Jardines, United States Supreme Court (3/26/13)
Civil Rights, Constitutional Law, Criminal Law

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. The officers then obtained a warrant for a search, which revealed marijuana plants. Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s suppression of the evidence.  The U.S. Supreme Court affirmed. The investigation of Jardines’ home was a search within the meaning of the Fourth Amendment. When the Government obtains information by physically intruding on persons, houses, papers, or effects, a search within the original meaning of the Fourth Amendment has “undoubtedly occurred.” The right of a man to retreat into his own home and there be free from unreasonable governmental intrusion is the “very core” of the Fourth Amendment.  The area immediately surrounding and associated with the home, the curtilage, is part of the home itself for Fourth Amendment purposes. The front porch is the classic exemplar of an area to which the activity of home life extends.  The officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing a home on public thoroughfares but “no man can set his foot upon his neighbour’s close without his leave.”  A police officer without a warrant may approach a home in hopes of speaking to occupants, because that is “no more than any private citizen might do” but the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search.

Read More: Drug-Sniffing Dog Case Fails Supreme Court’s Smell Test

Johnson v. Priceline.com, Inc., US 2nd Cir. (3/27/13)
Consumer Law, Contracts

Plaintiffs initiated this putative class action against Priceline, seeking compensatory, punitive, and equitable relief for alleged breaches of fiduciary duty and contract, as well as a violation of Connecticut’s Unfair Trade Practices Act (CUTPA), Conn. Gen. Stat. 42-110b. Plaintiffs’ claims arose from Priceline’s alleged failure to disclose to users of its “Name Your Own Price” booking service that a successful bid for a hotel room would generally exceed the amount Priceline itself compensated the hotel vendor, with Priceline retaining the difference as profit. Because plaintiffs failed as a matter of law to allege an agency relationship between Priceline and consumers who use its “Name Your Own Price” service to reserve hotel accommodations, they could not plausibly claim that Priceline breached an agent’s fiduciary duty in failing to apprise consumers that it might have procured the accommodations at costs lower than their bids, retaining the difference as profits. Accordingly, the court affirmed the district court’s dismissal of plaintiffs’ claims.

Read More: Priceline doesn’t have to tell customers it pockets profits, appeals court rules Continue reading →

riverIn re Bulger, US 1st Cir. (3/14/13)

Constitutional Law, Criminal Law, Legal Ethics

James “Whitey” Bulger was the leader of a criminal organization in Boston from 1972 to 1999. An indictment returned by a federal grand jury charged Bulger with a number of federal offenses, including violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, and the indictment alleged that Bulger committed nineteen murders ancillary to the RICO conspiracy. Bulger’s case was assigned to U.S. District Court Judge Richard Stearns. Bulger moved that Judge Stearns recuse himself, arguing that the judge’s prior employment as head of the U.S. Attorney’s Criminal Division in Boston and his close friendship with FBI Director Robert Mueller created an appearance of impropriety necessitating recusal. Judge Stearns denied the motion. Bulger subsequently petitioned the First Circuit Court of Appeals for a writ of mandamus requiring reversal of the judge’s order denying the motion for recusal. In an opinion written by Hon. David H. Souter, the First Circuit granted the petition and ordered the case to be reassigned to a different judge “because it is clear that a reasonable person would question the capacity for impartiality of any judicial officer with the judge’s particular background in the federal prosecutorial apparatus in Boston during the period covered by the accusations.”

st-patrickSt. Patrick’s Day is a day when we celebrate the Irish in all (or at least 35 million) of us. We honor our Irish ancestors, relatives and friends by dressing in green, visiting an Irish pub, or participating in a festive parade.

Food manufacturers also observe St. Patrick’s Day through the creative use of food coloring, which is regulated by the U.S. Food and Drug Administration. Pigments used to color food and derived from vegetables, minerals or animals are exempt from certification. A natural source of green food coloring would be grape skin extract.
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cc.largeCalifornia Assemblyman Brian Nestande (R-42nd Dist.) has put forth a bill to apply a Creative Commons License to the California Code of Regulations (CCR). According to Mr. Nestande’s site, “AB 292 will provide that the full text of the California Code of Regulations shall have an open access creative commons attribution license, allowing any individual, at no cost, to use, distribute and create derivative works based on the material for either commercial or noncommercial purposes.”

Right now, the Office of Administrative Law (OAL) owns and publishes the CCR. The OAL was created by Cal. Gov’t Code §11340. Cal. Gov. Code §11343 et seq governs the filing and publication of the Cal. Code Regs. The Office of Administrative law collects the regulations from issuing agencies, and after notice, sends them to the Secretary of State for certification. The OAL is then charged with providing for the “or the official compilation, printing, and publication of adoption, amendment, or repeal of regulations, which shall be known as the California Code of Regulations.” (Cal. Gov’t Code §11344(a)).

Section 11344.4(a) also allows them to sell the CCR: “The California Code of Regulations, the California Code of Regulations Supplement, and the California Regulatory Notice Register shall be sold at prices which will reimburse the state for all costs incurred for printing, publication, and distribution.”

The OAL currently contracts with Thompson West/Barclay’s to publish the official version of the CCR. According to Mr. Nestande’s office, the OAL licenses the CCR to West for $400,000 per year, plus 7% of all royalties. [The office did not have a copy of the latest contract, but you can see the contract for 2009-2012 here]. We don’t how much it would cost to produce the CCR in house, but it’s not a stretch to imagine that the OAL is turning a profit on this deal – which seems to be outside the scope of its charter in 11344.4. Mr. Nestande’s office points out that this creates a conflict of interest for the OAL – “As more businesses are covered by new regulations, more businesses need to purchase access to those regulations from Thomson, and OAL derives a larger profit.  This makes it difficult to be truly objective when approving new regulations, if it directly benefits from expanding the state’s regulatory burden.”

I think the bigger conflict of interest is that Cal Gov’t Code §11344(a) requires the OAL to post the CCR’s online for free, but their incentive for profit is interfering with the public’s ability to view and use those regulations. The CCR is hosted online by Westlaw. They are papered over with disclaimers (“The Official California Code of Regulations is available in looseleaf printed format from Thomson – West / Barclays (1-800-888-3600)) and copyright statements (© 2013 Office of Administrative Law for the State of California;” “Use of all or part of the data displayed on this site for commercial or other unauthorized purposes is prohibited.”). The regs on the site are not indexed by Google, and users cannot download or copy them without violating the copyright. What’s more, they’re not official. The Bluebook requires you to cite to the official version, which is the Westlaw Compilation.

There’s another absurdity in the status quo: Westlaw actually sells copies of its Compilated Regs to other state offices. You know, state regulatory offices that devised the regs to begin with. According to the Assemblyman’s office, “Nearly all state agencies and departments purchase the compilation from West, in addition to hundreds of trade associations, and individual business owners that purchase single section subscriptions.”

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blueprintLast week, Public.Resource.Org, through their counsel at the Electronic Frontier Foundation, filed an action for declaratory judgement against the Sheet Metal and Air Conditioning Contractors’ National Association, Inc. [SMACNA]. In its complaint, Public.Resource.org asserts that since SMACNA’s copyrighted standards were explicitly incorporated into federal and state law, they have become part of the public domain and are no longer subject to copyright restrictions.

This saga began when Carl Malamud of Public.Resource.Org began buying copies of privately issued, copyrighted building codes and putting them up online. These codes were incorporated by law into federal and state statutes, so Carl believed that they should be publicly available – a  proposition we agreed with.

When Attributor, an agent for SMACNA, discovered the codes on Public.Resource.Org, they sent a DMCA takedown notice. Public.Resource.Org now seeks a declaratory judgment from the federal courts that it is not infringing. It asserts that since these standards were incorporated by reference into federal law, the manual is now “the law of the United States and compliance with the 1985 manual is mandatory,” and thus is part of federal law – which is not subject to copyright.