Source Material For South Carolina Legal Blogs

We learned recently that a South Carolina lawyer friend is contemplating starting a blog.  Well, the first and most difficult question is always: What clever name should I bestow upon my site?  We can’t help you there.  But in honor of our friend, who shall remain nameless until the site debuts, we thought we would offer a bit of advice on source material for the blog. Blogging can be college side hustles for students interested in writing.

Here’s the best part!  We went back to our original late 2009 memorandum advocating the creation of Abnormal Use to address this issue.  It’s our origin story!

In that memorandum, here is what we advised our future selves about source material for a South Carolina blogging operation:

All sources of potential posts are free.  There are a number of email lists and web sites which can serve as a potential source of material, including the following:

  • Newsletters (This website sends a whole host of newsletters, including those dedicated to all of the Federal Circuits, the U.S. Supreme Court, various state Supreme Courts, as well as newsletters organized by legal subject matter and practice areas).
  • S.C. Courts – The S.C. Courts issue email alerts each time the S.C. Court of Appeals or the S.C. Supreme Court issues orders or opinions.
  • Other Law Blogs – Typically, in order for a law blog to be successful, it must occasionally comment upon the posts of other law blogs, if only to engender good will among competing blogs and institute commentary between them.
  • Federal Courts – Most federal courts now have e-mail lists and/or RSS feeds which alert practitioners to “news and/or new case filings.”
  • Newspapers – Often, legal news comes not just from official sources such as courts but also newspapers.  Information from the New York Times or The State is potentially good blog fodder, especially since it would be relatively easy to fashion a post out of a news story by adding brief commentary.
  • Bar Associations and Trade Organizations – Always a good source of information, bar associations send out e-mails lists and news of interest to their members, which can easily be turned into blog posts.

Sure, it’s pretty straightforward, but as nostalgic as we are, we couldn’t resist sharing it with you and our future blogging friend.

“Who is a member of the press?”

The Third Circuit, in January of 2013, said something that most folks were saying many years before:

More recently, membership in the Fourth Estate has been democratized. Access to blogs, smartphones, and an extensive network of social media sites (not the least of which are Twitter and Facebook) have transformed all of us into potential members of the media.

PG Pub. Co. v. Aichele, 705 F.3d 91 (3d Cir. 2013).

We’re late to this case, which was published in January, more than six months ago. But what’s interesting about this remark, which appears in footnote 24 of the opinion, is that the court immediately backs away from the principle due to the specific facts of the case.

You see, in this case, the court was called upon “to decide whether a state statute restricting access to a polling place infringes on the media’s First Amendment right to gather news.” Obviously, part of that inquiry hinged upon who was the media. As the court itself asked: “Who is a member of the press? Even if we were inclined to find a special First Amendment right for the press in this case (which we explicitly refuse to do), the class of persons to whom such a right is applicable is almost boundless.”

So, the remainder of footnote 24:  “While in almost any other situation this would be a boon to a free and democratic society, in the context of the voting process, the confusion and chaos that would result from a potentially limitless number of reporters in a polling place would work the opposite effect, potentially creating confusion, frustration, and delay. This is to say nothing of our earlier holding that the rights of access for the press and public are co-extensive. In this situation, anyone could record in the polling place if the First Amendment protected the right of access thereto.” (Emphasis in original).

How about that?

The Laptop Steering Wheel Desk, No Misuse Possible

Every now and then, a product hits the market that appears to have been taken straight out of Saturday Night Live‘s infamous “Bag O’Glass” skit.  You know the type.  A product that, while useful (or entertaining), seems to be begging for disaster if misused.  Recently, we here at Abnormal Use discovered one such product while perusing

Meet the Laptop Steering Wheel Desk by Wheelmate.  That’s right.  A laptop desk for your car’s steering wheel!

According to the Amazon product description, the product:

Attaches to your steering wheel for easy access to a writing and drink storage surface. The Go Office Wheel Mate Steering Wheel Desk is flat for writing and perfect for lunch or a snack. This Go Office Wheel Mate Steering Wheel Desk stores neatly in your car when used with the larger Auto Exec Laptop Car Desk. For safety reasons, never use this product while driving.

Sounds useful.  We have all tried to jot down notes or browse our iPads in the car, wishing we had a flat surface to do so.  Now, this product solves those problems.  Like the Post-It Note, we all just wish we had thought of it first. Unfortunately, the laptop steering wheel desk presents a slight possibility of misuse.  We assume the product is intended to be used only when the car is parked.  After all, it has a warning label and a stock image showing the product in use while the steering wheel is upside down.  Not all products are always used as intended, however.  Just check out a few of these user comments:

“OMG! I am using it right now to post thi…”

“Watching movies is so much easier while I drive!  Thank you wheel desk!”

Obviously, these users are poking fun of the possible misuse of the wheel desk.  As humorous as these users may be, however, there will certainly be people who try to use the product while driving – despite the warning and the utter absurdity of the idea.  And, of course, manufacturer will be on the wrong end of a products liability suit as a result.
We credit Wheelmate for developing a product that serves a useful purpose when used properly.  For its sake, we only hope it doesn’t share the same fate as lawn darts.

Friday Links

Behold! The cover of Criminals on the Run #4, published way, way back in 1948! This cover is only tangentially related to the law, but it does depict felons in flight. However, since last night saw the television premiere of Sharknado, we had to find a comic book cover with a shark on the cover.  We just had to.

Whoa, yesterday’s post was our 950th in our blog’s history. That’s a lot of posts. Just saying.

We have news from friend of the blog Alberto Bernabe. Here is the relevant excerpt from a missive we received on his behalf:

For those of you who follow Alberto Bernabe’s Professional Responsibility blog, Alberto asked us to let you know that if you want to continue to get the updates by e-mail you will need to subscribe again.  Last night the “feed” that automatically generates the e-mail updates stopped sending e-mails to registered users.  Please take a moment to visit his blog and sign up again for the e-mail update.   If you have any questions or concerns please feel free to e-mail Alberto directly at

And you know what? If you’re not familiar with Professor Bernabe or his blog, check them out!

With respect to this news, all we can say is ouch.

No Matter What You Think of Scalia’s Opinions, This Guy Thinks They’re Musical

As a Justice of the Supreme Court, Antonin Scalia (or, more pointedly, his opinions) are a polarizing force.  Although gruff and cantankerous from the bench, he’s apparently not such a bad guy outside the courtroom.  After all, we’ve heard reports of hunting trips with Justice Kagan, and it’s been reported that he has eaten New Year’s Eve dinner with Justice Ginsburg since 1982.  Apparently, he’s the funniest Justice, too, eliciting more laughter with his comments than any other, according to Boston University law Prof. Jay Wexler.

Justices Scalia and Ginsburg also share a love of opera, as reported by U.S. News & World Report in a 2007 piece:

An opera aficionado, Scalia, along with fellow Justice Ruth Bader Ginsburg, appeared as an extra in a 1994 production of Richard Strauss’s Ariadne auf Naxos. Scalia appeared onstage for about an hour and a half during the second act in a costume first worn by Plácido Domingo during the world première of Goya in 1986.

Well, apparently, the opera connection doesn’t end there.  According to NPR’s Nina Totenberg, and reported on NPR, a new opera about these two legal heavyweights has been completed.  The composer, Derrick Wang, is a new graduate of the University of Maryland’s Carey School of Law, who heard music in the opinions and dissents:

I realized this is the most dramatic thing I’ve ever read in law school … and I started to hear music — a rage aria about the Constitution,” Wang said. “And then, in the midst of this roiling rhetoric, counterpoint, as Justice Ginsburg’s words appeared to me — a beacon of lyricism with a steely strength and a fervent conviction all their own. And I said to myself, ‘This is an opera.’

Well, the opera is finished, and Justices Scalia and Ginsburg got a preview last month at the Supreme Court, the day after the Court’s term ended.  No news yet on whether it will be performed elsewhere, but in our opinion, the highest court isn’t exactly community theater.

Nominations for ABA Journal Blawg 100

The ABA Journal is once again preparing its annual list of the 100 best legal blogs.  At present, the publication is soliciting nominations from its readers for blawgs to add to this year’s list.  Accordingly, we humbly request that you nominate us for the honor.

Note: The deadline to do so is August 9, 2013.

The ABA Journal is not just looking for the name of your favorite blog. They’d like you to offer a few lines about why that particular blog is your favorite.  What has the blog done in the past calendar year to earn your favor?  Why is it that you enjoy reading that blog?  Is it, say, a regular feature, its editorial tone of voice, a particularly impressive series of posts, or just the subject matter itself which intrigues you?

Allow us to do a bit of electioneering.  Throughout the year, we have continued to bring you news on the latest product liability litigation and jurisprudence, each business day, as we have since January 2010.

So, if you like us, please feel free to nominate us for the ABA Journal’s list.

There are many great legal blogs out there, and we hope that even if we are not your favorite that you will still participate in this process and nominate your favorite blog.  We here at Abnormal Use – who are prohibited by the rules from nominating ourselves – would probably be too bashful to vote for our own site, anyway. Whatever the case, some of us here have already nominated a few of our favorite blogs for inclusion onto the list (including some blogs which we read and enjoy but with which we disagree regularly).

You can complete the very brief nomination form here.  It will only take you a few moments.


Jersey Shore, A&F Cross Paths in Legal Battle Royale

Two things we here at Abnormal Use detest: MTV’s Jersey Shore and retail clothing giant Abercrombie & Fitch. We understand that Jersey Shore and A&F appeal to some people, but we legal nerds have no place for spray tans and over-priced clothing – unless they cross paths in a courtroom. Much to our chagrin, after A&F released a t-shirt bearing the phrase, “The Fitchuation,” Jersey Shore‘s Mike “The Situation” Sorrentino filed a $4 million lawsuit against the retail chain, alleging trademark violations, deceptive advertising and misappropriation of his publicity rights.

A suit where there can be no winners, to be sure. According to the Hollywood Reporter, U.S. District Judge John O’Sullivan has now granted A&F’s motion for summary judgment. In a decision sure to make law school case books, Judge O’Sullivan notes:

Although the word ‘situation’ is not a word that was coined or made up by the plaintiffs, or a word that is obsolete, totally unknown in the language or out of common usage, the Court can discern no relationship between the word ‘situation’ and the apparel or entertainment services that the plaintiffs provide.

Moreover, Judge O’Sullivan found little in common between Sorrentino’s self-appointed nickname and A&F’s t-shirt.

The T-shirt expresses ‘The Fitchuation’ visually and phonetically different than ‘The Situation.’ There is no evidence of A&F ‘palming off’ its T-shirt as that of the plaintiffs where, as here, the T-shirt has the A&F inside label and prominently uses A&F’s own famous trademark ‘Fitch’ as part of the parody.

The highlight of the opinion, however, is Judge O’Sullivan’s response to a pre-suit press release put forth by A&F offering Sorrentino $10,000 to cease wearing its clothing.

A&F used only so much of the plaintiff’s name as was reasonably necessary to respond to his wearing A&F’s brand on The Jersey Shore, and did not do anything that would suggest Sorrentino’s sponsorship or endorsement. A&F’s press release expressly disassociated Sorrentino from A&F, and the plaintiffs have conceded that no third party has expressed any confusion that the press release rejecting Sorrentino’s image somehow suggested sponsorship or endorsement by Sorrentino.

Maybe The Situation should have taken that money. It is not $4 million, but it would be $10,000 closer to buying another 15 minutes of fame.

Idiocy By Proxy Is Indefensible

The dog days of summer are here, and the school year is over.  Kids love this time of year; for parents, it’s a mixed blessing – no more responsibility for getting the kids to school at the crack of dawn, but also, they must face the long, hot days and fill them with activities, camps, and play dates. The end of the academic year is marked in most schools by end-of-year recitals, plays, and fundraisers of all types.  Perhaps you can go and bid in a silent auction on Precious Boy or Girl’s priceless works of “art” – colorful swirls done with fantastically dirty fingers.

Or, perhaps you are out of town, so you proxy bid.  If this is your method of bidding, perhaps you should set a ceiling on those bids.

Enter Jon and Michelle Heinemann, who send their Precious Boy (who is 5 years old) to Cathedral School of St. John the Divine in Manhattan.  Out of town for the silent auction, they gave their proxy to make sure they would be the highest bidder on a painting done by Precious Boy and his classmates.

The price tag at the end of the day?  $50,000.00.  For a finger painting.

Furious, they have sued the school, saying that one of the teachers kept increasing the bids artificially so that the Heinemanns would have to pay some big bucks for Precious Boy’s creation.  They are suing not only to recover the price they paid for the painting, but for costs to send their children to another school, and a chauffeur to get them there.


There are several things we love about this story, which we found on Gawker here.  First, it’s that a couple of people who think they’re really smart may just have been outsmarted, and they are too fancy to admit it.  Second, it’s this line, as reported by Gawker:

Because the Heinemann’s were out of town, and had given instructions to a proxy to be the highest bid, they believed the largest possible damage for a finger painting (which are priceless) would fall around $3,000.

Because $3,000.00 would have been reasonable for a finger painting.

Finally, we love that the Heinemanns are also claiming that Precious Boy has been treated unfairly by the school since the auction went sour, claiming that he has had to do such things as hold the door for other students. Maybe I’m just a public school kid who didn’t know any better, but when I was five, it was cool to do such menial tasks as hold doors and erase blackboards for teachers.

A few other fun facts:  Jon Heinemann appears to be in finance in New York, running investment money management funds.  Here’s a website for The Heinemann Fund.  Michelle Heinemann was featured in something called “Black Tie Magazine” [pdf], which called her a “modern day Renaissance woman” and informed readers that she maintains several homes.  The Google has much more on this couple, if you’re curious.  Finally, according to its website, tuition  at Cathedral School of St. John the Divine in Manhattan for the upcoming school year rounds out at $38,425.  At least it includes lunch.

Friday Links

Above, you’ll find the cover of Police Comics #7, published way, way back in the 1940’s. You may recognize Plastic Man prominently depicted on its cover. However, we bring this issue to your attention due to the presence of one of the heroes showcased on the comics left sidebar: #711. Get this: By day, #711 was a lawyer, and a district attorney to boot! Here’s what Wikipedia has to say about him:

Daniel Dyce was a District Attorney who was almost an exact twin of his friend, Jacob Horn. Jacob was in prison, but wanted to see his wife give birth, so Daniel agreed to become a prisoner while Jacob was with his wife. However, Jacob is killed in a car crash on the way to the hospital, so Daniel was stuck in jail. Daniel was able to tunnel himself free, but instead of escaping, he decided to return to his cell. Each night he uses his tunnel to go outside and fight crime, then returns before the morning. Dyce adopts the name #711, a reference to his prisoner number. After two years of adventures Daniel Dyce was killed by the mobster Oscar Jones. The hero Destiny sees this take place, and starts his crime fighting career when #711 died, replacing his feature in Police Comics.

How about that?

Oh, my goodness! There’s a Third Amendment claim being made in litigation!

The folks at Reddit are now discussing the infamous Stella Liebeck McDonald’s hot coffee case. We’ve talked about that case a time or two, we think. Haven’t we?

FYI: The new clerk of court for the U.S. District Court for the District of South Carolina is Robin L. Blume.

And the award for worst copyright lawsuit of the years is already decided, apparently.

The founder of the rock band Boston must pay his opponent’s costs in his unsuccessful defamation lawsuit. “More Than A Feeling,” indeed.

Happy Fourth of July!

Above, you’ll find the cover of the trade paperback of the comic book adaptation of the 1996 film, Independence Day, which many of us will watch over this extended holiday weekend.  Even after all of these years, we’re still suckers for that movie, and we’re pleased to know a sequel is in the works. In the meantime, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and yours a safe and eventful Fourth of July. Let’s celebrate our nation’s birthday today (and, if time permits, have a beer or two, as well). If you’d like to see our past Fourth of July posts, please see here, here, and here.