November 13, 2006

Law stuff collected this year

Legally impaired writing

This judge has written in a nutty and awkward style:

Mattel is the world's largest manufacturer of toys, games, and playthings. One of Mattel's most successful products is the Barbie doll which is one of the most popular toys in existence. Mattel has caused numerous Barbie related trademarks to be registered in the United States Patent and Trademark Office on the Principal Register.


Mattel, Inc. v. Adventure Apparel, 2001 WL 1035140.

You can't appeal everything your lawyer messes up

“A litigant chooses counsel at his peril, Link v. Wabash Railroad Co., 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962), and here, as in countless other contexts, counsel's disregard of his professional responsibilities can lead to extinction of his client's claim.” Cine Forty-second Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1068.

Government of laws

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.


Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944, 959-60 (1928) (Justice Brandeis dissenting).

Pithy phrase

“Absence of evidence is not evidence of absence.”

As a matter of law, the house is haunted

A buyer of a house discovered before closing that the house had a reputation of being haunted. He went to court because the seller didn't want to let him out of the contract.

Whether the source of the spectral apparitions seen by defendant seller are parapsychic or psychogenic, having reported their presence in both a national publication (“Readers' Digest”) and the local press (in 1977 and 1982, respectively), defendant is estopped to deny their existence and, as a matter of law, the house is haunted.


Stambovsky v. Ackley, 572 N.Y.S.2d 672, 674 (N.Y.A.D. 1 Dept. 1991). Wow, haunted as a matter of law. That's pretty bold determination, don't you think? The justice, Israel Rubin, peppered the opinion with more ghostly terms: “[I]n his pursuit of a legal remedy for fraudulent misrepresentation against the seller, plaintiff hasn't a ghost of a chance, I am nevertheless moved by the spirit of equity to allow the buyer to seek rescission of the contract of sale and recovery of his downpayment.” Id. at 675. Then there is a quote from Hamlet and a mention of the Ghostbusters theme song.

Not talking of some insipid broth

Sometimes policy arguments in court opinions are highly entertaining. The Supreme Judicial Court of Massachusetts once had to defend the integrity of traditional fish chowder recipes.

We must decide whether a fish bone lurking in a fish chowder, about the ingredients of which there is no other complaint, constitutes a breach of implied warranty... . As the judge put it in his charge, “Was the fish chowder fit to be eaten and wholesome? ... But the bone of contention here — I don't mean that for a pun — but was this fish bone a foreign substance that made the fish chowder unwholesome or not fit to be eaten?” ...

The defendant asserts ... that “[t]his court knows well that we are not talking of some insipid broth as is customarily served to convalescents.”


Webster v. Blue Ship Tea Room, 198 N.E.2d 309, 310 (Mass. 1964).

It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks on a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds. We are not inclined to tamper with age old recipes by any amendment reflecting the plaintiff's view of the effect of the Uniform Commercial Code upon them. We are aware of the heavy body of case law involving foreign substances in food, but we sense a strong distinction between them and those relative to unwholesomeness of the food itself, e. g., tainted mackerel (Smith v. Gerrish, 256 Mass. 183, 152 N.E. 318), and a fish bone in a fish chowder. Certain Massachusetts cooks might cavil at the ingredients contained in the chowder in this case in that it lacked the heartening lift of salt pork. In any event, we consider that the joys of life in New England include the ready availability of fresh fish chowder. We should be prepared to cope with the hazards of fish bones, the occasional presence of which in chowders is, it seems to us, to be anticipated, and which, in the light of a hallowed tradition, do not impair their fitness or merchantability.


198 N.E.2d at 312.

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