Written by: Jay D. Hall
Edited by: Stefanie Herrington, Amy E. Seely

On May 15, 2008, federal prosecutors in Los Angeles filed charges against Lori Drew for her role in a Myspace hoax that led to the suicide of 13-year-old Megan Meier. Ms. Drew told police that she created a Myspace account for the sole purpose of communicating with Megan in order to find out what Megan had been saying about Drew’s teenage daughter. Drew admitted that she, along with a temporary employee, Ashley, created the profile of a “good looking male” named Josh in order to befriend Megan. Soon, the communications became “sexual for a thirteen year old.”

The internet relationship soon took a nasty turn. After receiving messages ending the online romance that included accusations that Megan was promiscuous and a statement that “the world would be better off without you,” Megan committed suicide by hanging herself in her bedroom closet. Tina Meier, Megan’s mother, remembers with regret a conversation she had with her daughter about her online communications. Meir said Megan was “looking for me to help calm herself down like I always did…but I was upset at the language she was using.” Megan’s last words to her mother were, “You’re supposed to be my mom, you’re supposed to be on my side.” Then she stormed upstairs, where Mrs. Meier found her daughter’s lifeless body shortly thereafter.

Following Megan’s suicide and an ensuing investigation, Ms. Drew was indicted by a grand jury on charges of conspiracy and accessing protected computers without authorization to get information used to inflict emotional distress. Drew admits that “communication between the fake male profile and Megan was aimed at gaining Megan’s confidence. Mrs. Meier noted her daughter struggled with self-esteem issues, but after receiving messages from “Josh” telling her she was “pretty,” Megan seemed thrilled. Mrs. Meier also said that when “Josh” broke off the relationship, Megan was devastated.

Initially, when her involvement came to light, Drew was apologetic about her role in Megan’s death; she even sent Megan’s parents a written apology. She didn’t anticipate being held criminally responsible for the suicide. Even the prosecutor from St. Charles County, where all of the events took place, stated there was no law under which she could be charged. Federal prosecutors, however, disagreed and brought criminal charges against Ms. Drew.

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Written by: John Deininger
Researched by: Nick Caleb
Edited by: Jeff Hinman, Lauren E. Trent

The city of Los Angeles is cracking down on drugs. It filed criminal charges against officials of two companies allegedly importing and distributing poisonous toothpaste. As it so happens, the poisonous chemical diethylene glycol, is better suited for cooling engines than improving dental hygiene. Finding antifreeze in toothpaste conjures images of Upton Sinclair’s The Jungle, and people falling into rendering vats. Didn’t the public outrage resulting from the book and the leadership of one of the greatest U.S. Presidents (Teddy Roosevelt) help create food and drug regulations to prevent such egregious violations of law? Yes, but there’s a lot to regulate.

The Food Drug and Cosmetics Act required manufacturers to demonstrate a product’s safety, and granted the Food and Drug Administration (FDA) broad powers to regulate food, drugs, and cosmetics. How the FDA classifies a product has important ramifications for the regulation and approval process. When it comes to FDA approval and regulation, the product’s primary use is the determining factor.

The FDA considers toothpaste a drug. That seems like an obvious and straightforward concept, but, surprisingly, ambiguity exists. Toothpaste could seemingly be either a drug or a cosmetic because it is used to protect your teeth, but also to keep them looking nice. A product is a drug if 1) drug-like effects are foreseeable in large groups of people, 2) consumers use the product predominantly for its significant pharmacological effects, or 3) manufacturers know that the product will be used for these drug-like effects. Cosmetics manufacturers, on the other hand, must simply declare their ingredients, not make any false claims on the packaging, and use safe chemicals. Since pretty teeth are more of a byproduct of the action of toothpaste’s chemicals, like fluoride, it’s out of Clinique land and into the realm of Tylenol.

While toothpaste comes in many flavors, as far as the FDA is concerned there are only two flavors of drugs: over-the-counter and prescription. Whichever category a drug falls into will determine the amount of hoops a company has to jump through to get it approved. Most toothpaste, including the one containing the coolant, is over-the-counter, but some toothpastes are only available by prescription. So where does the FDA draw the line?
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Written by: Kimberly Brandt
Researched by: Nick Caleb
Edited by: Edward S. Bushnell and Stefanie Herrington

Teenagers often do things they later regret, but these days such mistakes can quickly reach a global audience. One incident that has graced the headlines involves two Wisconsin teenagers, Alex Phillips and his ex-girlfriend (referred to as “HLK”). In a breakup that turned ugly, Phillips posted pictures on his Myspace account that HLK had taken of herself and emailed to him several months prior to the incident. What’s illegal about that? According to the complaint, the first picture was full frontal nudity and the second of her genital area, to which Phillips added his own colorful caption. And since HLK is a mere 16 years old, the criminal issue pops up. When police contacted Phillips and requested that he take the pictures down, warning him that he could go to jail for refusing, Phillips reportedly replied, “f*** that, I am keeping them up.” Though Phillips did later take down the photographs, the “venting” teenager now faces charges for possession of child pornography, sexual exploitation of a child, and defamation.
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Written by: Tom Borton
Researched by: Jeff W. Richards
Edited by: Jay Hall, Stefanie Herrington, and Amy E. Seely

Over the past few centuries, this country has seen vigorous debate about what kinds of marriages should be recognized valid. As early as 1664, anti-miscegenation laws criminalized marriages between whites and black slaves. In 1862, Congress passed the Morrill Act, which prohibited polygamy. Since the 1970’s, courts have permitted laws limiting marriage to opposite-sex couples. Today, anti-miscegenation laws have been fully repudiated, but debate continues regarding same-sex marriage, and recent events in California and across the nation have fueled the fire.

On May 15, 2008, the California Supreme Court decided In Re Marriage Cases, allowing same-sex couples to marry. That decision has stirred two old debates back to life. First, if a same-sex couple legally marries in one state, must other states recognize that union? Will statutes banning same-sex marriage soon be just a speed-bump on the U.S. road to marital bliss? Second, will state recognition of homosexual marriages lead to anti-polygamy laws bring overturned? Will plural marriage follow from gay marriage? The path ahead is unclear. Is Gay Marriage a Slippery Slope or an Even Playing Field?
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Written by: Steve Glista
Researched by: Darci G. Van Duzer
Edited by: Peter Fehrs, Lauren E. Trent

Global warming may be a fact of life, but fashion still changes with the seasons. Consumers of high-fashion clothing continuously demand new looks from designers like Armani, Chanel, and Christian Dior. A buyer who has spent thousands on a single item of clothing would not tolerate the embarrassment of showing up at a party in the same dress as the hostess. To prevent such faux pas from ruining anyone’s night, most couture designs are made in limited quantities and at exorbitant prices. Unfortunately, not even those precautions are guaranteed to avoid the problem. New York designer Oscar De La Renta crafted an $8,500 crimson gown and several socialites still managed to wear it to the same event in 2006.

For those of us who aspire to keep up with the latest trends, but are forced to hang our fashion sense from the clearance rack, there is a ray of hope: retail operations like Forever21 and PinkIce work in partnership with knockoff creators like Seema Anand to imitate each new design as soon as it crosses the runways of Paris or Milan. The imitators are so quick that sometimes the copied designs hit store shelves before the originals!

The dispute between designers and copycats has inspired scholarly papers and textbook chapters. A series of blogs have sprung up to chronicle the escalating friction between high-fashion designers and the retailers beating them at their own game. Widespread copying has forced some designers to turn to the courts to prevent the imitations from stealing their business. Anna Sui, for example, is suing Forever21 in New York federal court for “blatant and intentional” copying of “numerous” pieces of women’s apparel. She’s asking the court for lost profits and an order preventing Forever21 from imitating her work in the future. Can Ms. Sui rely on copyright law to stop Forever21?
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Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or a poor investment opportunity. This week’s word is the latter.

Written by Eric Wasik

Trophies, bridges, airports, or even an elementary school - all good things to have named after you. Two things you never want named after you are diseases and financial schemes: the former because you likely didn’t survive the eponymous disease and the latter because you likely got caught. Such was the fate of Charles Ponzi. An enterprising chap from Italy, Ponzi discovered a loophole of sorts in the international postage system. A person could purchase an international postal reply coupon (IRC), which acted as a kind of self-addressed stamped envelope, allowing the recipient to send a reply without having to pay the postage themselves. If the country you are sending the letter to was a member of the Universal Postal Union, the IRC could be exchanged for that country’s stamps to send the reply internationally. Ponzi discovered that the decreased cost of postage in his native Italy could allow IRCs to be bought at a lower price and exchanged for the more expensive American postage. Ponzi solicited people to invest the money needed to buy large amounts of IRCs with the promise of a return on their investment. He even gave them security notes to show their investment in his “company.”

Ponzi did pay off some of the first investor notes, but only by using the money he got from additional investors — not capital earned from his grand postage scheme. The payment of some initial notes, of course, created the appearance of a successful financial operation, enticing more investors. Ponzi never imported the IRCs and never paid many of the later notes. Eventually, Ponzi’s public relations agent discovered the impossibility of Ponzi’s stamp promises and sold his story to the Boston Post. A week later, Ponzi was in the hands of authorities, his scheme costing thousands of people millions of dollars.

Today, a Ponzi scheme can best be described as an investment structure that uses further investor capital to pay dividends to initial investors, creating the false impression of actual profit. By their nature, the scheme’s bubble will always burst, leaving some investors with without a profit and without their initial capital. The investor’s only hope of getting their money back is a suit against the scheme ringleader (if he or she hasn’t already skipped town for the Bahamas), likely for breach of contract or securities fraud. Judgments won often go unpaid by the schemer, who likely owes money to other investors. Duped investors are left without much to their name, and curse Ponzi’s.

Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or makes a great insult. This week’s word is the latter.

Written by: J. Aaron Landau

As any first year law student  struggling with the “reasonable person standard” can tell you, the last thing the legal world needs is more imaginative standards and tests. One novel concept, however, might be an exception: the charmingly named “moron in a hurry.” Like the “reasonable person,” the “moron in a hurry” is a legal fiction employed to represent the decisions someone might make under a given set of circumstances. That “someone,” however, isn’t reasonably prudent at all. Instead, it’s an imaginary conception of the least informed, least diligent consumer in a given market - and it’s making the transition from informal phrase to bona fide legal concept.

The phrase was first used in Morning Star Cooperative v. Express Newspapers in 1978. In that case, the People’s Press Printing Society sued Express Newspapers, alleging that Express’s tawdry new tabloid “The Daily Star” would adversely affect sales of their own Communist daily, “The Morning Star.” The Morning Star’s publisher argued that Londoners seeking to keep up on the daily news of the Communist Party might accidentally pick up the similarly-named celebrity gossip rag instead, besmirching the Morning Star’s good name and confusing its readers. 

The High Court of England rejected the claim, holding that “only a moron in a hurry would be misled” into confusing the two magazines. Today the two continue to publish under their respective titles, presumably with little confusion among readers.

In the U.S., the process of determining trademark infringement is largely similar. If Joe McDonald were to open “McDonald’s Sandwiches” in a market where McDonald’s Hamburgers also does business, he’d likely be sued for trademark infringement, given the “likelihood of confusion” that consumers would believe his sandwiches originated from the fast-food chain. By the same token, McDonald’s Hardware can operate without fear of legal action, since no consumer is likely to believe the company has suddenly branched out from hamburgers to hammers and nails.

In the grey area between those two extremes, the logic of the “moron in a hurry” test emerges. If there’s some possibility of confusion between two trademarks, but the only confused party would be a less-than-prudent consumer, the defendant’s mark should rightfully stand. As a Canadian court recently held, “it is not sufficient that the only confusion would be to a very small, unobservant section of society … [or] if the only person who would be misled was a ‘moron in a hurry.’” In 2006, Apple Computer used the same standard in successfully defending against the Beatles record label Apple Corps in the courts of England. Though the phrase hasn’t yet been employed by a federal court in the U.S., the concept is well-established: any “likelihood of confusion” isn’t determined upon the basis of just any consumer, but rather a reasonably prudent one. It’s only a matter of time before an artful attorney brings the “moron in a hurry” to the U.S. courts - and brings a chuckle to struggling law students.

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Written by: Rachel Sowray
Edited by: Stefanie Herrington, J. Aaron Landau, Amy E. Seely

The capitalist society of the United States glamorizes having money, and lots of it. The media covers the beautiful homes, jewelry, and entire islands owned by celebrities and millionaires around the world, and these stories get airtime because everyone dreams of living that life, too. The glitz and glamor of Las Vegas and other casino cities draw millions of people each year to see the splendor and — more importantly — gamble. The riches are sexy and exciting, so it’s no surprise many dream of hitting it big. Becoming a millionaire by just putting some money on the table, having lady luck smile down, and playing the odds against the casino’s advantage is glamorized even by Hollywood movies like “21.” Besides, who doesn’t want to have the celebrity lifestyle Kate Bosworth and Kevin Spacey embody?

Gambling isn’t just luck, though. A big part is being smart and knowing the odds so you don’t lose your shirt… but how far can a person go? Count cards? Work with friends? Use wireless earpieces to communicate about which tables are “hot”? How much can a player tip the odds in his or her favor before the casino can complain or even remove that player from the premises? Read the rest of this entry »