Nick Kam

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Custer County Action Ass’n v. Garvey, 256 F. 3d 1024 (10th Cir. 2001). The property Petitioners sought to protect was the airspace above their land. As the court extrapolated through a slippery slope argument, Petitioners would have the United States military seek consent from every individual or entity owning property over which military planes might fly, and then design its training exercises to utilize only that airspace for which permission was granted, or else risk Third Amendment liability. The 10th Circuit court was unwilling to extend this kind of Third Amendment protection:

Judicial interpretation of the Third Amendment is nearly nonexistent. The crux of any such claim, however, is whether the nature of the asserted property interest falls “within the ambit of the Third Amendment’s proscription against quartering troops ‘in any house, without the consent of the Owner.’” Engblom v. Carey, 677 F.2d 957, 961-62 (2d Cir.1982). Citing Engblom v. Carey, Petitioners argue that “[b]ecause a private party has rights to the airspace above his or her property … the United States military may not appropriate such property interests during peacetime without the property owners’ consent.” This argument borders on frivolous.

Engblom v. Carey, 677 F.2d 957 (2d. Cir. 1982), is the only significant challenge based on the Third Amendment since the Constitution was ratified in 1788. During a strike by New York prison guards, National Guardsmen were brought in as scabs to serve in their stead. Striking prison guards were removed from employee housing to make room for the National Guardsmen. Some of those evicted prison guards filed suit alleging violation of the Third Amendment. Ultimately, the majority held for the government — no Third Amendment violation. Though, the court did provide a test for all future Third Amendment violations.

Intellectual property doesn’t just sound cool. It is cool! Over at The American Prospect they’re pulling apart the IP issues surrounding Tony Stark’s Iron Man suit. Government takings abound!

While trying to fend off Vanko, Stark is pressured by the U.S. government to give up the secrets of the Iron Man suit. After Stark refuses a senator’s demand that he relinquish his body-armor technology, the government forcibly takes it from him, only to turn it over to a competitor that then uses the technology to fulfill its own defense contract. Consciously or no, this echoes the real world; the United States government can take such actions with almost total legal impunity.

Tony Stark gets to choose: disclose the details of the invention in a patent and correspondingly get superior civil (i.e. monetary) relief if someone copies it, or try to keep the invention secret himself and hope that criminal law dissuades people from stealing it.

Litigation and Trial – Max Kennerly.

See also io9′s analysis of what it would cost to build Iron Man’s suit.

“Defendant, seeing plaintiff on a city street, reviled her at the top of his lungs in the presence of bystanders and others who assembled, calling her a God damned son of a bitch, a dirty crook, and other similar epithets, which he repeated several times. Plaintiff was seven months pregnant at the time, and her condition was sufficiently obvious to the defendant; and she claimed that the verbal attack was made for the purpose of causing her physical injury.”

Bartow v. Smith, 78 N.E.2d 735 (1948) cited in Prosser’s Insult and Outrage (1956).

The Misfits – Where Eagles Dare.

“I don’t know what kind of bullshit passes for jurisprudence down in the 4th Circuit these days,” Thomas wrote. “But those pricks can take their arguments about speech that ‘appeals only to prurient interests’ and go suck a dog’s asshole.”

From The Onion.

The plaintiff in this suit sought an entry of a default judgment against the defendant for having failed to plead or otherwise defend the action. However, the fact of the matter was that the defendant had answered the plaintiff’s complaint in the following manner:

Not only do I deny all of the allegation in the above styled suit, I contend, with all due respect, that the plaintiff must be suffering from a condition of brown eyeballs since he is full of so much bullshit.

The court on review held, “While the form and language of the appellant’s response are less than desirable and more frank than customary, the appellant did state in short and plain terms his general denial of appellees’ claims.”

Wheat v. Eakin, 491 So. 2d 523 (1986).

When Panera Bakery signed a lease agreement with the White City Mall of Massachusetts in 2001, they included an exclusivity clause that both parties agreed to restricted White City from entering into new leases with businesses that primarily sell sandwiches.

Easy right? Fast forward 5 years and White City Mall signs a lease agreement with Qdoba Mexican Grill to lease space in the same food court.

Panera went bananas. They started threatening litigation, demanding recission of the Qdoba lease agreement, and rolling around red-faced on the floor. Panera believed and later asserted that tacos, burritos, and quesadillas fell within meaning of “sandwiches” and therefore, White City was prohibited from leasing to Qdoba under the Lease. “Au contraire my little baker friend,” replied the opposing counsel and the court. Superior Court Judge Jeffery Locke opined in a seven page opinion:

The New Webster Third International Dictionary describes a “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Under this definition and as dictated by common sense, this court finds that the term “sandwich” is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans.

This has got to be the first time that a court had to delineate the characteristics of the sandwich in a judicial opinion. And if that wasn’t enough, the Court put a final nail in Panera’s burrito-is-a-sandwich coffin: “Even though Panera vigorously argued for a broad definition of ‘sandwiches’ under the lease agreement to include food products sold by Qdoba, this argument does not change the fact that burritos, quesadillas, and tacos are not commonly understood to mean ‘sandwiches.’”

Prof. Marjorie Florestal of McGeorge finds the fact that Judge Locke leaned so heavily on common sense in this case troubling. In the introduction to her law review article she writes, “In short, a judge’s common sense or gut-level intuitive reactions– while permissible and useful–must undergo a second layer of logical, deliberative reasoning if she is to arrive at a truly holistic and fully-formed assessment of the case.”

While the Professor is correct that law requires such analysis, things like “Is a burrito a sandwich?” “Is waterboarding torture?” and “Is a horse a bird?” ostracize the layman and offend our notions of reality when lawyers try to justify the absurd conclusion.

White City v. PR Restaurants (2006).