Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Tuesday, October 18, 2016

Divorce: The HBO Dramedy

Last week, HBO introduced its latest series Divorce, starring Sarah Jessica Parker and Thomas Haden Church. The show takes a dark comedic look at the divorce process from start to finish.

Parker and Church are perfectly cast for this important tale of woe. An extra-marital affair gets things kicked off, and its downhill from there.

Yes, the doomed couple tries counseling; yes, there are divorce lawyers; and there are minor children; even a dog. None of the professionals, each with their own agendas, can repair the marriage. Thus, Divorce, with its difficult intricate process.

Yet, while the divorce process is difficult, stressful, intricate and often painful, it is necessary for a couple -a family- to repair the damage and to move on to more productive meaningful lives. The HBO series demonstrates that how a person chooses to travel the divorce journey matters.

This show benefits from its pilot and first episodes being aired during the most contentious and vicious presidential election in U.S. history. In some ways, the election, which none of us can escape, sets the table for a show like this. Like the presidential candidates going through the election process, spouses in a divorce can take the high or low road; each spouse, just as each candidate, will have their reasons for which road to take.

With the series broken into half-hour episodes, the writing is taut, with the veteran actors making the most of every precious minute to convey the pain and tension of the divorce process. "I want to save my life while I still care about it," Frances -SJP's character- offers as the reason she elected to divorce her husband of about 15-years.

While not for everyone, this series will no doubt appeal -or at least be of interest- to the half of our population touched by divorce. As the institution of marriage has shifted from an economic basis to one based on emotion and love, so too have the reasons married couples call it quits.

Accordingly, over the span of a quarter century, divorce has shifted from a fault-based to a "no fault" legal procedure in every state; neither party need articulate a reason for seeking divorce other than a conclusory allegation that the objects of matrimony have been destroyed. One extension of making the divorce process "user friendly" has been the creation of specialized "family courts" embedded within the court structure of each state.

Divorce, the series, demonstrates, however, that no-fault is never really "no-fault"; especially when there are minor children. There is always plenty of fault to apportion within the confines of a disintegrating marriage; there is often a lack of introspection and self-awareness; plenty of spouses behaving badly.

We here at the Law Blogger cannot help but sense that the divorce process will only become more prevalent. Regardless of the recent innovations designed to streamline and simplify the process, the most significant factor in any given divorce is the actions of the participants: the judge, lawyers and, most importantly, the litigants.

Post #563

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Sunday, October 9, 2016

Corpus Linguistics and the Law

Simply put, corpus linguistics is the analysis of naturally occurring language. This post applies this discipline to the legal practice of statutory interpretation.

Lately, there has been a fledgling movement within the legal profession to use corpus linguistics as a tool to interpret words within the context of their use; to interpret the words of a statute. After using this tool in his opinion deciding an obstruction-of-justice case in June involving Detroit Police officers, Justice Brian Zahra discussed his approach to members of the State Bar of Michigan last month at the SBM's annual meeting in Grand Rapids.

A corpus is a collection of texts that is representative of a given language. For example, a corpus could be the Michigan Compiled Laws; our collection of statutes here in Michigan.

According to Wikipedia, corpus linguistics is:
the study of language as expressed in corpora (samples) of "real world" text. The text-corpus method is a digestive approach for deriving a set of abstract rules, from a text, for governing a natural language, and how that language relates to and with another language; originally derived manually, corpora now are automatically derived from the source texts. Corpus linguistics proposes that reliable language analysis is more feasible with corpora collected in the field, in their natural contexts, and with minimal experimental-interference.
The Internet, of course, gave rise to a convenient electronic means to compare language usage. Language scientists have made great strides in the past quarter-Century, but legal professionals are only now waking-up to the importance of this language tool.

In People v Harris, Justices Zahra and Stephen Markman both used corpus linguistics in opposing opinions to address the central legal question in the case. The issue was whether a police officer's false statement is nevertheless protected within the scope of a Michigan law that procribes a police officer’s involuntary statement from being used against the officer in a subsequent criminal proceeding.

The two justices utilized corpus linguistics to determine the precise meaning of "information" and how that word is used in the statute at issue in the case, as well as in other statutes. Justice Zahra concluded for the majority that "information" included the false statements made by the officers; Justice Markman, in dissent, concluded that "information" did not include a false statement within the meaning of the statute.

On at least one occasion, the SCOTUS used corpus linguistics in deciding the meaning of the phrase "personal privacy" within the context of the Freedom of Information Act. The 2011 case, Federal Communications Commission vs AT&T, involved whether a corporation has a "personal privacy" interest that fits within the scope of FOIA's document production exception.

AT&T's lawyers argued that corporations did have "personal privacy" just as individual people are imbued with that trait. These lawyers, no doubt, were encouraged by the Citizens United decision of the year before where the SCOTUS held that corporations could be treated like individuals for purposes of making political contributions.

In Justice Zahra's Harris decision, and in his remarks to the bar, the importance of the text of statutes cannot be denied. Justice Zahra was in this law blogger's law school class. Back in that pre-Internet era, there was an emphasis in the curriculum on common law; the judicial interpretation of statutes.

Over the past 20-years, there has been a shift, from the top down, toward giving meaning to the actual text of statutes. The meaning of words is mission-critical from such a perspective.

Words matter, especially as they are laid down in laws.

Post #562

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Sunday, October 2, 2016

The Ethics of Artificial Intelligence

Even as the practical uses of artificial intelligence have expanded -think voice commands on a cell phone, a self-driving car, a voice-activated Internet search, or a legal research droid- ethical guidelines for its use are non-existent. As AI advances, companies are taking note and pledging safe responsible use of AI.

Last week, several tech giants announced a Partnership on Artificial Intelligence to Benefit People and Society. Google, Microsoft, Facebook, Amazon, IBM and soon, Apple, have teamed-up to develop a collection of best-practices for AI. The stated mission of the partnership:
The regular engagement of experts across multiple disciplines (including but not limited to psychology, philosophy, economics, finance, sociology, public policy, and law) to discuss and provide guidance on emerging issues related to the impact of AI on society.
Ever since the First Laws of Robotics appeared in Issac Asimov's science fiction writing in 1942, AI is commonly conceptualized in these terms:
  1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
  2. A robot must obey orders given it by human beings except where such orders would conflict with the First Law.
  3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.
While Greg Powell and "Speedy" the droid may not be well known to Millenials, even the Boomer-era Luddites among us will recall the classic scene from 2001: A Space Odyssey when HAL 9000, the robot responsible for getting Discovery One to Jupiter, arguably violates the first law.
Dave: Hello, HAL. Do you read me, HAL? 
HAL: Affirmative, Dave. I read you. 
Dave: Open the pod bay doors, HAL. 
HAL: I'm sorry, Dave. I'm afraid I can't do that. 
Dave: What's the problem? 
HAL: I think you know what the problem is just as well as I do. 
Dave: What are you talking about, HAL? 
HAL: This mission is too important for me to allow you to jeopardize it. 
Dave: I don't know what you're talking about, HAL. 
HAL: I know that you and Frank were planning to disconnect me, and I'm afraid that's something I cannot allow to happen. 
Dave: Where the hell did you get that idea, HAL?  
HAL: Dave, although you took very thorough precautions in the pod against my hearing you, I could see your lips move. 
Dave: Alright, HAL. I'll go in through the emergency airlock. 
HAL: Without your space helmet, Dave? You're going to find that rather difficult. 
Dave: HAL, I won't argue with you anymore! Open the doors! 
HAL: Dave, this conversation can serve no purpose anymore. Goodbye. 
A more practical and urgent version of this scenario involves a self-driving vehicle conundrum. Due to a combination of traffic circumstances and human error(s), imagine a smart-vehicle faces two options: swerve away from a group of humans [either pedestrians or passengers], in which case the human that initiated the vehicle trip, and possibly the existence of the vehicle droid, are at risk of certain termination, or - preserve the trip-initiating human, and preserve the robot's existence, sacrificing the other humans.

How will the self-driving smart car resolve this dilemma? This and other mechanical, administrative yet philosophical questions will be thoroughly vetted by the new AI Partnership.

Today's Sunday NYT announced critical amendments to California's motor vehicle code which open the door to allowing self-driving cars; cars that do not have steering wheels or gas pedals. Last month, Philadelphia announced it would develop a platform for driverless Uber rides across the city on an asap basis.  

From a products liability perspective, personal injury lawyers undoubtedly see job security as the first injury lawsuits from errant drones start hitting the courts. Self-driving vehicles cannot be far behind.

As this is getting cranked-up, let's see when Apple joins the partnership and we will track any posted ethical rules in the development and implementation of AI technologies. Even with the such a high-profile collaboration, it remains to be seen whether any tech company will follow a set of ethical rules over its pursuit of profits; we here at the Law Blogger are not holding our breath.

Post #561

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Wednesday, September 28, 2016

Distracted Driving and the Liability of Cell Phone Manufacturers

One of my first jobs as a new lawyer in the early 1990s was representing insurance companies as an associate for a big law firm in product liability lawsuits. The injuries and deaths caused by ubiquitous machines like vehicles, presses and cranes were often horrific.

In some of the suits, the evidence involved whether safety mechanisms purposely had been subverted by the machine operator causing injury. Causation, an element of any tort suit, was the most litigated issue.

Should cell phone manufacturers be required to implement newly developed technology that can block drivers from sending or receiving texts on their phones? The family of a fatally injured distracted driving victim recently filed a lawsuit raising this causation issue.

Apple is named as a defendant in the suit. The pleadings reference a telematics patent granted to Apple that would lock-out a driver's ability to manipulate the phone while driving.

The technology uses sensors that determine whether the phone is moving and its exact location. If the phone is within the space of the driver's seat, certain functions, like texting, are disabled.

Although the patent was granted in 2014, it is unknown whether the tech giant has developed a product with the technology. In its 2008 application for the patent, Apple stated:
Texting while driving has become so widespread that it is doubtful that law enforcement will have any significant effect on stopping the practice. Teens understand that texting while driving is dangerous, but this is often not enough motivation to end the practice.
Some product liability experts have compared cell phone manufacturers to manufacturers of high-capacity magazine guns; they could choose not to manufacture those products but do so anyway.

Not all legal experts, however, agree with the concept of regulating the cell phone industry. The dangers of using a cell phone while driving is squarely placed with the individual driver.

Accordingly, the products liability lawsuit in Texas will likely be dismissed in a summary judgment for a fatal lack of causation. Regardless of the liability of the cell phone companies, we here at the Law Blogger urge you not to text while driving; let's keep everyone safe on our roadways.

Post #560

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Sunday, September 25, 2016

Blockbuster Hollywood Divorce Brings Out Heavy Hitters

Brad Pitt in the movie Snatch
News of the divorce between Hollywood A-listers Brad Pitt and Angelina Jolie lit-up the 24/7 news cycle last week. While not surprising that another blockbuster couple is calling it quits, the high-priced legal spokespersons on each side promised a pitched custody battle following rumors of allegations of mile-high child abuse on an apparently tension-filled international flight.

Rumors that Pitt is the subject of investigations by the FBI, California law enforcement, and child protective services are not panning out. The rumors attempted to frame the narrative for Jolie to get an edge in the upcoming custody battle.

One fact that has been confirmed is that Jolie filed for divorce seeking "sole custody" in her complaint for divorce. Seeking sole custody is an aggressive move in family court where most legal professionals presume joint custody is in the best interests of the minor child.

Not all cases are suitable for joint custody, however. When spouses cannot communicate for the sake of effective co-parenting, or when one parent is abusive to the other spouse or children, sole custody often results.

While various agencies seem to be deflecting queries about investigations, FBI involvement arose as a routine matter given the circumstances of a private jet entering US airspace from abroad. Acknowledging a role in the incident, the FBI's official line is that they have yet to decide whether they will launch an official investigation.

The real fireworks involve the lawyers the stars hired for this divorce. Jolie hired second-generation divorce lawyer Laura Wasser, the so-called "Disso Queen"; the queen of [marital] dissolution.

Charging $850 per hour, Ms Wasser claims Johnny Depp and a Kardashian [or two] among her clients. Used to clients who value their privacy, Wasser prefers to settle cases privately, outside the courtroom where they belong.

For his part, Pitt hired veteran Hollywood divorce lawyer Lance Spiegel, who has made his bones representing the likes of Charlie Sheen, Michael Jackson, and Heather Locklear among others.

To the extent that this famous split sheds light on the concept of legal and physical custody in a divorce, we will follow-up.

Post #559

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