New Year’s Eve 2012

Today is the last day of 2012 – which was never supposed due to the much hyped and still quite tardy Mayan apocalypse.  Even though this is an “official” work day, we here at Abnormal Use hope for an uneventful time at the office.  Like Archie before us (pictured above on the cover of Jughead with Archie Digest Magazine #97), the excitement of New Year’s Eve looms large.

Such anticipation can sometimes hamper productivity, or so we hear.

On this eve of the new year, we will be celebrating the past and looking forward to what lies ahead.  The year 2013 will be one for the ages.  While it offers no presidential election, we will observe the 150th anniversary of the Battle of Gettysburg.  We’re already awaiting the release of a new Star Trek film.  Further, 2013 is the first Twilight-less year in ages.  Yes, 2013 is going to be fantastic.

In the short term, New Year’s Eve packs plenty of excitement to carry over into the new era.  Whether you are watching a ball drop in Times Square or a possum fall in North Carolina, we hope that your New Year’s Eve is the fruitful culmination of all the memories of the past year. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you a safe and happy evening.

Friday Links

We hope you had a wonderful Christmas week. Above, you’ll find the cover of Marvel Holiday Special #1994, published way back in December of 1994. Those were the days, weren’t they? Ah, 1994. Let us pause to reflect upon the simpler times of that era. Maybe we’re just nostalgic for that era because we weren’t quite lawyers yet then. Oh, well.

Tweet of the week, from @TweetsOfOld, which takes old newspaper blurbs and republishes them as tweets: “The Seattle courts have ruled that a dog has a right to bite a man that steps on the dog’s tail. IL1911″ We would love to track down that opinion. Surely there’s a way to track that down, no?

Check out this recent interview with Shauna Barnes, the general counsel of Delaware’s wonderful Dogfish Head Craft Brewery, conducted by Don Tartaglione of The Natonal Law Journal. Our reaction: How awesome must it be to serve as general counsel for a craft beer company? (Hat Tip: Beer Pulse). A somewhat relevant aside: Remember back in May of 2011, when we interviewed Adam Avery of the Avery Brewery, about his company’s Collaboration Not Litigation Ale? If not, see here.

Whoa! Our writer Rob Green was cited on The Volokh Conspiracy! See here! Whoa again!

Our friends at The Law and the Multiverse blog ask: “Can you get a restraining order against Santa Claus?” One of these days, we need to square off with those guys in a pop culture mock trial.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

The Marquez Boxing Lawsuit? This Story Reads Like a Law School Exam!

Boxer Juan Manual Marquez knocked out Manny Pacquiao stone cold in their recent fight.  However, even before the fight, Pacquiao’s trainer, Freddie Roach, was convinced that Marquez was on performance enhancing drugs (PEDs).  In fact, nearly two weeks before the fight, Roach allegedly said, “If [Marques's body] is natural, I will kiss his ass.”  After the fight, Marquez tested clean. He is now reportedly considering a defamation suit against Roach.  But it is not the defamation suit that has our attention.

It is the fact that Marquez appears to want specific performance on Roach’s offer.

Marquez recently stated,”Roach told me that if I would come out clean in the anti-doping tests, he would kiss my ass. The Nevada Commission has announced that [I was] negative for doping.  That means Roach has to kiss my ass and then some.”  The question: Can he get the specific performance he wants?  Of course not.

But, just for fun, let’s run through this fact pattern as if it were a law school exam question.

First, a contract is any transaction in which one or both parties make a legally enforceable promise.  The question is whether Roach’s promise to kiss Marquez’s ass is legal enforceable.  A promise is legally enforceable when it was made as part of a bargain for valid consideration or it reasonably induced the promisee to rely on the promise to his detriment. Marquez could certainly argue that he would have taken PEDs but for the offer made by Roach.  It is certainly a stretch. Moreover, Marquez already had a pre-existing duty not to use PEDs under the rules set forth by the Nevada Boxing Commission. Under the pre-existing duty rule, a promise regarding a pre-existing obligation to the other party does not constitute a legal detriment.

Second, if there was no contract, Marquez might attempt to assert promissory estoppel.  When a promisee foreseeably relies to his detriment on the promisor’s promise, even in the absence of an enforceable contract, the doctrine of promissory estoppel may be invoked to make such promise binding in order to prevent injustice.  The arguments for “detrimental reliance” would be intriguing in this case, but for the purposes of this brief analysis, we aren’t going there.

Finally, even if there were success on the aforementioned theory of recovery, would a judge really order the specific performance that Marquez appears to desire?  Specific enforcement is a remedy in the form of a court order that the breaching party render performance of the contract.  Specific performance is not available if money damages are adequate to put the aggrieved party in as good a position as he would have been had the contract been fully performed. Expectation damages are deemed to be an inadequate remedy where the subject matter is unique.  I suppose Marquez could argue that the subject matter is unique, but the judge would likely interpret Roach’s promise as being symbolic.  The embarrassment could arguably be replicated by awarding money damages.

Now, these certainly aren’t all the issues you could bring up on a word vomit law school exam.

You’d want to discuss things like unilateral contracts, acceptance by performance, inapplicability of the UCC, et cetera.  But you get the idea.

The Wackiest Warning Labels of 2012

In the summer of last year, we blogged about the Center for America’s Wacky Warning Labels Contest – a contest which, in the words of the Center’s own words, “reveal[s] the excesses of civil liberty.”  These are labels that assume mankind has no common sense.

Well, 2012 was no different for the Center for America. Once again, its loyal devotees submitted warning labels for the contest, and the “wackiest” have now been chosen.  Here is the winner of the 2012 contest:

Well, I suppose I must remove my globe from my car’s dashboard!  A complete list of the Wacky Warning Labels contest is here.

In other navigation news, several news outlets have reported that Australian police are warning users of Apple Maps, a feature of the newest iPhone, that following its directions can be life-threatening.  Really?  Yes.  Apparently, people using the feature to find Midura, Australia are directed not to the small town, but 40 miles away to a remote part of Murray-Sunset National Park in the Australian Outback.  This is no small sort of error.   Temperatures can reach more than 100 degrees, and there is no water source in the park.  Several travelers were rescued by the police.  On the bright side, it appears that the iPhone gets great cell service in the Outback.

Perhaps while Apple is scrambling to fix its widely criticized maps application, we can come up with an adequate warning to help in the case of an unanticipated detour:  “Warning:  Use of This Maps Application Can Be Life Threatening.” “Objects on Map are Further Than They Appear.”  “Make Sure to Carry Plenty of Food and Water When Using Navigation System.” “Beware of Crocodiles.”

Maybe we’ll see some of those in next year’s contest.

Merry Christmas!

Santa Clause Conquers The Martians, a comic book adaptation of the 1964 film of the same name, may feature the best comic book cover we’ve ever seen.  We must confess that we had not heard of the film when we chanced across the comic book cover earlier this week. We could offer you some type of plot summary, but that would just spoil the fun, wouldn’t it?

On that note, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and your family a very Merry Christmas. As we’ve said before, if you were you to send us a request to admit that Christmas is a splendid time of year full of fine sentiment and warm feelings, we could not in good faith deny it. But we would totally object to the request as irrelevant just to preserve our cynical shell.

So, please be safe, be warm, and be merry during this fine holiday season.

It’s Christmas Eve!

It’s Christmas Eve.  Since many of our readers are fellow lawyers, we must ask you: are you in the office today? On the one hand, it is the day before Christmas, but on the other hand, it is a Monday.  It’s not even a federal holiday. But it seems exhausting to trek to the office on a Monday when Tuesday is, in fact, one of the biggest holidays of the year.  Especially if you find yourself traveling to faraway places.

By the way, depicted above is the cover of Xmas Comics #2, published way, way back in December of 1942.  Look at all of the superheroes with Santa in his sleigh! But even with that on the cover, we have to think that 50 cents is pretty expensive for a comic in 1942.

Know this: We here at Abnormal Use are off today.  This post you are reading – these words you see right now – were written long ago, and this post was set to publish far in advance so that we could enjoy the day with our families.

But if you need us, you know where to find us.

Friday Links

Well, if you’re reading this, we may have actually survived the 2012 apocalypse.  That, or the end of the world is just a bit tardy.  To observe this unusual occasion, we direct your attention to the cover of Doomsday +1 #1, published way, way back in July of 1975. The noted website Comicvine describes the plot as follows: “After a nuclear holocaust wipes out humanity three astronauts return to Earth, team-up with a newly thawed-out caveman and have loads of exciting adventures.” (To learn more about the series, click here.).

As we previously mentioned, the ABA Journal named us to the Blawg 100, the list of their favorite legal blogs in the nation. As you read these words, the ABA Journal is asking its readers to vote for their favorites, as well. We’d greatly appreciate it if you could take a moment to vote for us! Today is the last day you can do so. To vote, please go here.

Since it’s the holiday season, we direct you to “12 Toys From the 1980s That Didn’t Take Off.” How many of them do you remember?

Doomsday 2012?

Alas. The end is near. As you likely know, tomorrow – Friday, December 21, 2012 – marks the endpoint on the Mayan calendar – an occasion some have interpreted as the end of the world. Doomsday, if you will. The end of the world as we know it.  A total R.E.M. moment.  Now, we here at Abnormal Use don’t necessarily believe in such apocalyptic soothsaying. That kind of talk lacks logic and reason. But, we are no fools. If the world is to end tomorrow, we won’t be caught flat-footed. Expect us to spend the next twenty four hours seizing the day and gathering our rosebuds.

Things are about to get wild. So wild that we may even pause before responding to certain written discovery requests. Since we can live without fear of repercussions, we may even serve some pleadings by regular mail – without signing them! Dare we say, we may just move for summary judgment on the grounds that plaintiff’s claims are just downright silly! The possibilities are endless.

Why  are we concerning ourselves with pleadings and discovery when the apocalypse is upon us? Well, we are lawyers, after all. We need to cover all of our bases. We can run with the whole armageddon thing for a while, but we have learned from past experience. This 2012 thing wouldn’t be our first failed prophecy of doom. We are still paying the price for going a little nuts over Y2K. And the Hale-Bopp comet. Take our advice – have a contingency plan for the off-chance we are misreading the Mayan prophecy. We’ve even prepared tomorrow’s edition of Friday Links just in case!

We wish the best, and we hope to see you tomorrow. Cross your fingers.

Christmas: ‘Tis the Season of Torts?

During Halloween, we here at Abnormal Use pondered the potential tort claims present in all of those horror movies. With Christmas nearly upon us, we got to thinking. Although this month may not pose the dangers of the Halloween tort season, certainly, it is not a vacation from the law. Christmas, like Halloween, can also be a plaintiff’s dream.

Let’s start with the obvious: gift giving. Unfortunately, gifts cost money. What can happen when people don’t have money? Theft. Or as tort lawyers like to call it – trespass to chattels (or conversion). Earlier this month, a California man was arrested for stealing Christmas presents from an elderly couple. If convicted, he may face jail time and a tort suit.

Christmas is the season to be jolly, but all is not always so. Anytime family and friends gather, things are bound to get eventful. Just last week, a woman was arrested in New Zealand for biting off another woman’s fingernail at a work Christmas party. We are not well versed in Kiwi law, but we imagine this constitutes a battery worldwide. Not exactly what one wants from Santa.

Annually, we contemplate a nuisance claim against the local mall for incessant Christmas music in November. Some inmates in Phoenix had a similar idea against their prison, but, unfortunately, those claims were unsuccessful. Maybe we should instead target our neighbor’s tacky yard decorations. After all, is it truly necessary to display an inflatable Harley-riding Santa in the front yard?

Speaking of Santa, he may be the biggest holiday tortfeasor of them all. The man enters billions of houses year after year but never faces a trespass claim. Sure, he has permission from many property owners, but he must be unwanted somewhere. Why bother anyway? We imagine it would be nearly impossible to select an impartial jury.

Unfortunately, as Clark Griswold can attest, torts do not take a sabbatical over the holidays.  We imagine there are plenty that we have overlooked.

We welcome your comments on any you come across as you enjoy the holiday season.

Our Favorite Posts of 2012

Now is the time that we, as consumers of media, are inundated with year end best-of lists. So, just as we did last year and the year before that, we here at Abnormal Use have collected our favorite posts of this past year – our third full year of existence. If you’ve followed us from the very beginning, you know that we’ve posted at least every business day these past three calendar years. That’s a lot! Looking back over our posts this year, it was difficult to choose our favorites. But, dear readers, the ones we enjoyed the most are linked for you below, along with their author and publication date. Fill yourself with nostalgia, just as we have, and revisit these entries from 2012.

Dealing with the Anxiety of Pfizer’s Birth Control Pill Recall: A Flowchart (Steve Buckingham, February 6, 2012)

Ten Years Ago Today: Dedman Graduates From Baylor Law School (Jim Dedman, February 9, 2012)

Gas Can Litigation = Big Business for Plaintiffs Firms (Frances Zacher, February 13, 2012)

20th Anniversary: “My Cousin Vinny” (1992) (Various Bloggers, March 12, 2012)

Lessons Learned from Vincent L. Gambini (Rob Green, March 12, 2012)

Remedies for Unreasonably Defective Law Schools (Frances Zacher, March 28, 2012)

American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law (Jim Dedman, April 1, 2012)

Deposing Siri (Jim Dedman, April 2, 2012)

Johnny Cash’s “Cocaine Blues” Leaves Much To Be Desired (Legally, Anyway) (Nick Farr, June 12, 2012)

The Flaming Rat Case: A Revisionist Analysis (Steve Buckingham, June 27, 2012)

Critical Thoughts on Depositions of Asbestos Plaintiffs (Jim Dedman, July 12, 2012)

CPSC aims to eradicate Buckyballs, outstretch its boundaries (Nick Farr, July 31, 2012)

UIM Coverage Issue Goes Viral; Great Misunderstandings Ensue (Nick Farr, August 15, 2012)

The Most Important Unwritten Rule: Depositions Should Start at 10:00 AM (Jim Dedman, September 26, 2012)

First World Problems: Litigating A Really Sweet Pool Table (Steve Buckingham, October 15, 2012)

First Hot Coffee, Now Hot Tequila? (Rob Green, November 26, 2012)