Today's Sign of the Apocalypse

Death Cab for Cutie had their own music videos removed from their website, by their record label...

Kudos to Warner Music Group. This is a superlative example of how the DMCA(Digital Millennium Copyright Act) take-down request process has grown entirely out-of-hand; it is arbitrary, frivolous and downright laughable. 

I find it nearly impossible to defend the practice when it yields results such as this.

'Black Berry One'

Yesterday, White House Press Secretary Robert Gibbs announced that President Obama will be allowed to keep his beloved Black Berry phone. 

This is to be considered a notable victory for the President, whose desire to keep his phone has overcome the vociferous objections of security officials.  Concerns arise because after he leaves office, any and all Obama communications, whether strictly business or candidly personal, are required to be released under the Freedom of Information rules and become part of the public record. Thereis also an apprehension that secure information could be "hacked" or "leaked" from the phone. 

I don't really see why Obama's bid to keep his phone became such a major contention.  First, White House IT personnel will "whitelist" the phone, restricting incoming messages to a tightly controlled list of Obama's personal and business contacts.  Michelle Obama, his kids, Rahm Emanual, David Axelrod, Hillary Clinton and a couple of close friends will likely constitute the entire approved list.  Obama's outgoing emails and messages will be closely regulated as well. Such tight control allows the President to retain at least some of the phone's functionality, but drastically reduces the chance for any malfeasance on the account. [imagine how Bill Clinton's texts to his interns would read]

Second, Obama is the first man to take Office who actually supports and embraces technological advancements.  He knows and understands the responsibilities that come with the Presidency, and will not abuse it by sending any inappropriate messages on his phone.  In all likelihood, President Obama's most "revealing" personal emails will expound his love of sports; he is too conscious of his technological footprint to allow any secure or scandalous information to leak through his phone. 

The controversy over the President's phone has quickly be resolved and will become an non-story as Obama's staff  brings a tech-centric approach to the entire White House.  This tech transition may encounter a few road bumps (apparently some junior staffers were entirely flummoxed when they tried to access information from an actual *gasp* Rolodex), but it is long overdue and a wise move by the new administration. 

Follow, Follow Up

Today, Chief Justice Roberts administered the Oath of Office to Obama...again...

Hey, better safe than sorry.  Maybe there really are no hard feelings between the President and the Chief Justice. (whom Obama did not vote to confirm...)

Follow Up: Obama's Oath

For an interesting discussion about the constitutional validity of Obama's Oath of Office, check out this intriguing post by Lyle Denniston...

Commentary: Was Obama's Oath Valid?

Amazingly, his post merges my fascination with Obama's jumbled Oath and my new "favorite" class, Constitutional Law...and raises some interesting insights. 

Obama and Roberts Drop the Ball...('Sports Metaphorically', of Course))

It was blatantly obvious to everyone watching the Inaugural Address this morning, that Chief Justice John Roberts and President Obama badly muddled the Oath of Office.  Rachel Maddow commented on Twitter, "maybe john roberts will get a mulligan in four years." (possibly at Obama's second inauguration? yes...anyone?) 

Interestingly, the Oath of Office's wording is prescribed in Article II, Section 1, Clause 8 of the Constitution. Therein it reads...

"I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Besides mention of the trouble the two men had "parroting" the Oath back and forth, John Roberts, in reading the second clause, omitted the worth faithfully. 

This, after all, is an arguably important word within the Oath.  The Chief Justice, recognizing his mistake,  'corrected' it by stuck it in at the end of the clause. (talk about a non-originalist approach to interpretation of the Constitution...the man is rewriting it!) As WSJ.com suggests, while this sentence structure may be grammatically more befitting than the Framers' parsing, it demonstrably through the new President off-kilter. 

Needless to say, this inaugural blunder will merely be a footnote (at best!) on Obama's presidency.  Here's to hoping that this is the worst gaffe the President makes as his familiarizes himself with his new job responsibilities...

Palm Pre: 'I Kinda Really Want One'

Thanks largely to my dreadful cellphone provider, I am left to endlessly pine for a new "smart-phone".  As I am locked into my current contract for a seemingly endless amount of time, my choice between the newest phones is pure conjecture. However, I am fairly certain that if I could get a new phone within the next few months, it would be the Palm-Pre, over the iPhone or the G1 (google phone). 

The to-be-released Palm-Pre has enormous upside.  It has sleek and stunning looks, on par with the iPhone design.  It's new 'touch' operating system, Mojo SDK, has been continuously regarded by all those who had an opportunity to appraise it at the recent Consumer Electronics Show (CES). And, the functionality of the phone seems to be exemplary of a "smart phone" capability.  Like the G1, it has a full QWERTY keyboard, not a problematic (for some) touch pad like the iPhone. Further, it offers "cut-and-paste", a function that Apple seems disinclined to provide to the iPhone, despite many frustrated users (I'm thinking a Molly Wood iPhone "cut-and-paste" rant). 

Yet the biggest downside to the Pre, is that Palm has yet to deliver.  Expectations were set alarmingly high at CES, as many praised the Pre and the accompanying OS as the saviour of Palm.  Can the Pre live up to the hype?  

First, the battery on the Pre needs to be sufficient.  Palm cannot afford a battery that performs as poorly as the G1 (with full battery charges lasting for only 4-6 hours).  A "smart phone" simply needs to operative for a full day (8 hours+) on one charge. Second, the exclusivity to Sprint as a carrier needs to be short-lived.  Sprint has received widespread criticism as being the worst carrier in terms of customer service (beating out AT&T), and having spotty 3G service (although, supposedly if you are in a good coverage area, the service is superb).  The sooner the Pre goes non-exclusive, the better off Palm will be...

Palm is set to release the Pre within the first half of 2009, yet no official release date has been set.  

If could just get out of my current service contract and also afford a monthly data plan, I'd be in business...because, I kinda really want a Pre. 

A Water Landing? Seriously?

Yesterday's news was predominated by a truly remarkable story. 

A US Airways flight suffered a "double bird strike" (sounds cooler than it is) shortly after takeoff. Both of the jet's engines were apparently damaged by an impact with a flock of birds.  The controller suggested to "Sully" (pilot's full name: Chesley B. Sullenberger) that he make an emergency landing attempt at either a small airstrip in New Jersey, or on an empty runway at LaGuardia Airport. 

 

The pilot, however, literally dove into the Hudson River.  Miraculously, (Gov. David Patterson has, himself, dubbed the event a 'miracle') the water landing was a success! Steven Levitt, of Freakonomics fame, notes that there have been over 150 million commercial flights since 1970, and yesterday was the first official "water landing".  

To quote Vizzini from 'Princess Bride...INCONCEIVABLE!

Another interesting question arises when determining whether or not these passenger will have an action in tort for negligent inflection of emotional distress (NEID).  Such a case would likely turn on a finding of negligence...Aaron Twerski, a law professor at Brooklyn Law School, argues that negligence would be difficult to establish.  

"If the pilots were warned of the birds", he says, "and didn't avoid them, maybe you have negligence."  Since the presence of the birds appear to be happenstance  (a skillful pilot could surely have avoided the birds if he knew their position), it is difficult to find notice.  

New York tort law requires that, to recover for NEID, a plaintiff must be within the "zone of danger"; clearly these passengers were. As to damages, the passengers would need to demonstrate emotional distress - nightmares, fears, anxiety, etc.  

If negligence can be demonstrated, an action for negligent infliction of emotional distress could lie.  It will be interesting to see whether or not any of the passengers choose to pursue such an action, and whether they would dare to name the (heroic) pilot as defendant. 

Teaching to the Test

Kerry MacIntosh, a contracts professor at SCU School of Law, made an interesting comment in today's lecture.  She articulated her fear that many professors fall into a habit of testing the same patterns of material, and correspondingly, many students lapse into the habit of regurgitating the same patterns of information on exams. She questioned how practical 'patterned' testing techniques can be when translated to exams that break out of the pattern, i.e. the bar exam.

The bar is sufficiently intimidating to any first year law student, however, I am more concerned with how 'patterned' testing (and teaching) could leave students, such as myself, at a disadvantage in a 'real-world' law practice. 

There is no doubt that some subjects are particularly well suited to a patterned testing of material.  Torts, for example, is a particularly mechanical subject that many first year students write off as a subject that is only passingly relevant (similar to how many high-school students regard calculus). However, every student is going to see tort law again, whether or not they would like to...on the State bar exam.   Will the preparation of a 1L Torts class that concentrates around a patterned outline, be enough to scrape by on the bar?  I am not the least bit confident, as evidenced by my inability to produce a concrete answer to a relatively simple question from my uncle (at least I knew it was concerning torts...).  

Such a lack of confidence cannot be unique to myself, as it is likely a predominant reason why expensive bar preparation courses are so widespread.  Law students pay an absurd amount of money for school, yet many 1L students sign up for these pricey bar preparation courses before they even finish their first semester!

Perhaps a movement away from a patterned style of teaching/testing and towards a more practical approach to certain subjects, especially torts, could better prepare students to handle problems that present in law practice, and on the bar exam. 

So This is the New Year...

...and I don't feel any different.

But I am. And we, collectively, are.  

2008 has been quite a year, but can anyone really appreciate what 2009 might bring? I am thoroughly excited (and only a little bit scared).  

One of my resolutions will be to keep this blog on a semi-regular basis (I know, I know, the anticipation is unendurable!).  We will see just how long it will last. 

Thank you to those who made 2008 so incredible.  Best of luck to all in 2009.

Cheers,

Mike V. Sardina