#LearnTheLaw – What is Fair Use?

Fair use, in the broadest sense, is the use of copyrighted content without permission from the relevant copyright owner for a restricted and, as the courts define it, “transformative” intent, such as commenting on, criticizing, or parodying such copyrighted work. It is based on the idea that parts of copyrighted works should be free to be used without the copyright owner’s permission. It is a widely used defense by those accused of copyright infringement.
In settling fair use disputes, courts have traditionally looked at four factors:
(1) the intent and character of the use
(2) the nature of the copyrighted work
(3) the volume and substantiality of the portion taken
(4) the impact of the use on the future market.
Section 107 of the Copyright Act provides the statutory framework for determining whether something is fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. (Source: Copyright.gov)

#LearnTheLaw – What is a Contract?

Contracts are promises that the law will enforce to be met. The law behind the security of a contract provides remedies to the harmed party which is commonly resolved in the form of monetary damages. But in limited situations, the court will order “specific performance” of the promise to be made.
The basic elements required for a contract/agreement to be legally enforceable are:
– Mutual Assent
– A valid Offer and Acceptance has been made
– Adequate Consideration from any party involved
– Capacity (Usually requires a person to have reached a minimum age and to have soundness of mind.)
– Legality (No parties being bound to perform or engage in illegal activity – the legality of the purpose of the contract is required for the contract to be enforceable.)
Specific Performance – A contractual remedy in which the court orders a party to actually perform its promise as closely as possible because monetary damages are somehow inadequate to fix the harm. (Source: LII)
Breach of Contract – The violation of a contractual obligation. One may breach a contract by repudiating (or denying) a promise, failing to perform a promise, or interfering with another party’s performance. (Source: LII)
Offer – A promise to do or refrain from doing something in exchange for something else. An offer must be stated and delivered in a way that would lead a reasonable person to expect a binding contract to arise from its acceptance. (Source: LII)
Acceptance – To form a binding contract, acceptance should be relayed in a manner authorized, requested, or at least reasonably expected by the offeror (Source: LII)
Mutual Assent – Agreement by both parties to a contract. Mutual assent must be proven objectively and is often established by showing an offer and acceptance (e.g., an offer to do X in exchange for Y, followed by an acceptance of that offer). (Source: LII)
Interesting Fact:
The shorthand symbol used for a “contract” is “K” this term is used almost universally by lawyers and law students (Source: Law.com)

Case Commentary: Lange v. California

“Probable cause” is a legal term that basically means that a police officer has either: a pretty good reason to believe that a crime may have been committed that requires an arrest, or knowledge that a crime was committed because there is evidence, which requires “search,” or investigation. A police officer must prove this “probable cause” (why he believes strongly that a crime has been committed, or present evidence of the crime), in order for a court to grant him or her a warrant. If a police officer can show probable cause, then in the former case, he can receive an arrest warrant and arrest the person whom he or she believes committed a crime, or in the latter situation, he can receive a search warrant, to search the evidence of the crime. However, there are what is called “exigent circumstances” aka crazy and unpredictable circumstances, that allow a police officer with probable cause to arrest someone or search something without a warrant. In the case currently in front of the Supreme Court, Lange v. California, the court is asked to determine whether a police officer who has probable cause that someone committed a misdemeanor (low level crime), can enter a garage without a search warrant? In other words, is entering a home because the officer has probable cause that the person who lives there committed a low level crime, considered one of those crazy circumstances that allows a police officer to search someone or something, without a warrant?
Specifically, a California Highway Patrol officer saw Arthur Gregory Lange in his parked car, playing music loudly and honking his horn even though no other vehicles were nearby. The officer, thinking this was odd, followed Lange for several blocks. Eventually, the officer turned his lights on and Lange did not stop. Lange tuned into a driveway and drove into a garage. The officer interrupted the closing garage door and following Lange in the garage. Lange was then charged with two Vehicle Code misdemeanor and an infraction. Lange argued at court that officer followed him into the garage without a warrant and this is not one of those unpredictable crazy circumstances where a warrantless search would be allowed. The officer obviously disagrees. He says that this was one of those crazy circumstances. What do you think? For reference, entering someone’s apartment without a warrant because the officer smelled marijuana was an exigent circumstance. Also, warrantless entry was allowed when it was necessary to render aid to an injured person.

SCOTUS Spotlight: Sonia Maria Sotomayor

Sonia Maria Sotomayor was born on June 25, 1954 and is the first Hispanic and Latina member of the Supreme Court. Growing up in The Bronx, to Puerto Rican parents, Sotomayor was inspired to pursue a legal career and judgeship after watching the Perry Mason television series at just 10 years old. Sotomayor received a full scholarship to Princeton University for undergraduate school, and then to Yale Law School in 1976, on a scholarship as well. Sotomayor praises affirmative action for letting students like herself from “disadvantaged backgrounds” to be “brought to the starting line of a race many were unaware was even being run.” After graduating from law school, Sotomayor was hired as an assistant district attorney in New York County. Sotomayor handled cases such as shoplifting and prostitution to robberies, assaults, and murders. Finally, after pursuing a range of legal positions, serving on various public service committees, and serving on the U.S. Federal District Court of New York and the U.S. Court of Appeals for the Second Circuit, in 2008, Sotomayor was nominated for the Supreme Court seat by President Barack Obama. After Senate hearings, Sotomayor was confirmed by the full Senate by a vote of 63-31. Sotomayor has been associated with the liberal side of the court. In her first couple of years on the court she ruled in agreement with Breyer, Ginsburg and Kagan, all three known to be of a liberal judicial philosophy. Notably, in January 2021, Sonia Sotomayor swore in Kamala Harris as the first black and South Asian and female Vice President.

Fun fact: Sotomayor identifies as a “Nuyorcian,” which refers to members of the Puerto Rican diaspora located in or around NYC. Born and raised in NYC, Sotomayor has always been a huge New York Yankees fan.

SCOTUS Spotlight: Roger B. Taney

Roger B. Taney, born on March 17, 1777, was the 5th Chief Justice of the United States and the first Roman Catholic to serve on the Supreme Court. Taney’s life and legacy have been considered deeply controversial. Taney held many political roles once he was admitted to the bar: he served for one year in the Maryland House of Delegates, he was elected to the Maryland Senate, he served as the US Attorney General, and he served as the Secretary of War. When Andrew Jackson tried to appoint Taney to serve as the Secretary of the Treasury, however, the Senate denied this nomination and Taney became the first cabinet nominee ever to be rejected by the Senate. 

Later, Jackson nominated Taney to the Supreme Court but the Senate rejected him again citing his radical views. However, 10 months later when Chief Justice John Marshall had passed away, Jackson again nominated Taney to serve as Marshall’s successor, and the Senate finally approved. Despite holding many roles in his life,  he is remembered principally for the Dred Scott decision that he delivered during his time as Chief Justice. Taney, himself, delivered the ruling that African Americans were not citizens, and that slavery could not be prohibited by Congress. The decision immediately created controversy and disagreement. So much so that not long after the decision was public, Congress passed the 13th and 14th amendment to the Constitution which, in effect, overturned the ruling of the Dred Scott decision.  

The country, to this day, has not forgotten Taney’s decision and it’s impact on American history. As of 2020, following the protests surrounding the killing of George Floyd, the House of Representatives voted 305-113 to remove the bust of Taney from the U.S. Capitol and replace it with a bust of Thurgood Marshall, the first African American Supreme Court Justice.

Two interesting facts: Roger B. Taney married Anne Phoebe Charlton Key, the sister of Francis Scott Key, who wrote the Star Spangled Banner. 

SCOTUS Spotlight – Clarence Thomas

Associate Justice Clarence Thomas is an associate justice of the Supreme Court of the United States. Supreme Court Justices have lifetime tenure and Justice Thomas is the longest sitting member of the Court, serving for 29 years. In his young years in Savannah, Georgia, his father left, his family struggled financially, and a fire left him, his sister, and his mother homeless. The three of them moved in with his maternal grandparents where he became the first black student admitted to St. John Vianney to become a priest. After many years of pursuing becoming a priest, he was disappointed with the Catholic Church’s passive stance on Civil Rights so he decided to change paths to a legal career focused on Civil Rights. After graduating from the College of the Holy Cross, he attended Yale Law School. Clarence Thomas had a noteworthy yet brief career on the Court of Appeals before Bush nominated him to the Supreme Court. Before he could be officially appointed, Senate hearings took place regarding sexual harassment claims against him. Thomas rigorously denied all allegations and in October 1991 he was confirmed by the senate and appointed as a Supreme Court Justice by the narrowest margin in a century. As the second African American to serve on the court, Justice Thomas is known for his conservative approach. By conservative, we mean that he reads the constitution as it is: he looks at the words and makes his decisions based on that alone. This is in comparison to other justices who will read the constitution and interpret the words into modern-day context. Justice Thomas’s votes consistently reflect a small government stance. He has voted consistently for outcomes that promote state autonomy by restricting the federal government’s control on the states. While Thomas’s conservative approach has seldom been the majority of the court, and therefore, not the law, with more conservative justices added to the court in the last couple of years, (making conservative Justices the majority in comparison to the liberal Justices), we may start seeing more law that reflects Thomas’s conservative approach.

#LearnTheLaw – What is Judicial Review?

Defined: A legal phrase for what we all know Judges do: look a law, a policy, an act, a piece of legislation, etc., and assess whether it is or is not constitutional. This seems like such a deeply established concept that it’s hard to imagine that nowhere in the constitution does it say that judges have this power!
So where does this idea come from?
This comes from the landmark 1803 decision, Marbury v. Madison. In 1789, Congress passed the Judiciary Act, which in part, allows a person to bring their case straight to the Supreme Court of the United States (generally not allowed with few exceptions) if you were seeking a “writ of mandamus” (which is basically when you’re asking a higher court to tell a lower court to perform their duties).
Marbury uses the Judiciary Act to bring his writ of mandamus to the Supreme Court. The Supreme Court says that actually, the Judiciary Act is unconstitutional. The court says that the constitution already explicitly mentions the circumstances in which a person could bring their case straight to the Supreme Court and Congress can’t just add another method.
Marbury says hold on, Court: who says that you’re allowed to say whether this act is unconstitutional? The court said while it hasn’t been explicitly said before, #1 we’ve been saying things are and are not unconstitutional for a long time now so it would be silly to stop now, and #2 there are many provisions in the constitution (i.e. The Vesting Clause, Arising Under Clause, Supremacy Clause, Oath Clause) that lead us to believe strongly that that’s our job.
So while we all know that this is what courts do, it was in fact made the law more than 200 years ago. This may seem uneventful now given how settled this idea is, but it’s important to note that this remains the single most important decision in American constitutional law and at the time was considered an “epic” and “genius” decision.

Back For More: $188 million Powerball Winner sued by ex-Fiancé.

Marie Holmes, a woman from Brunswick Country, North Carolina, had won the $188 million Powerball jackpot back in 2015. This win was the largest jackpot win ever in the history of North Carolina. After taxes, she was able to keep around $88 million of the winnings and made elaborate plans of spending the money.
According to the complaint filed by Lamarr Andre McDow, her ex-fiancé, she had spent a significant amount of the money on him. The complaint states that McDow and Holmes had started dating back in 2012 and eventually had two kids together. In November 2014, McDow was arrested and charged for drug trafficking, and two months later, Holmes won the lottery. Before McDow was convicted and sentenced to ten years in prison, Holmes had bought him a $250,000 Chevy Stingray, clothes, and jewelry with a total worth of $100,000 amongst other gifts. McDow has stated that he made Holmes his power of attorney before he was sentenced and authorized her to store and maintain his possessions. However, once in prison, Holmes broke up with him and sold many of his possessions. According to McDow, this was a breach of her fiduciary duties. He is suing her for compensation for his sold assets. Meanwhile, Holmes’ attorneys have filed a motion to dismiss. Citing numerous deficiencies in the suit filed by McDow, including the lawsuit was filed outside of the three-year statute of limitations.

Imagine being a bank and sending someone the wrong Venmo…

Citibank will not be able to rectify one of the biggest blunders in banking history, a US District judge has ruled. The error was an accidental transfer of $900 million by Citibank to lenders of Revlon, a cosmetics company. In the transaction, Citibank was acting as an agent of Revlon. It was supposed to send $8 million in interest payments to lenders of Revlon. But accidentally, it sent an amount that was more than 100 times the original amount.
In August 2020, Citibank filed a lawsuit seeking a return of its money. However, around 10 investment advisory firms have still not returned $500 million of the accidental transfer. The law around the spending of funds received from accidental transfers is usually strict. A Pennsylvania couple has been hit with felony charges for spending money that they had received by mistake. However, New York has an exception to this law and allows for a “discharge-for-value-defense.” The defense allows a beneficiary to keep the money received from an accidental transfer if they are entitled to the money, and they were not aware that it was an unintentional transfer. Revlon’s lenders used this defense as they thought that Citibank was sending the amount as prepayments for a loan that the bank owed them. The judge agreed with the lender’s argument and ruled that Citibank, “a highly sophisticated financial institution,” could not have made this transfer by mistake, and to believe that it was a mistake would be “borderline irrational.”

#BlackHistoryMonth – Dred Scott

Black History Month is all about amplifying black lives, voices, and experiences throughout American history. However, BHM also serves as a necessary reminder of America’s harsh relationship with racism, inequality, and discrimination to always understand where we started and how far we must go. Today we discuss Dred Scott, whose case sparked such disagreement that it partially influenced the nation to fight (literally) for freedom in the Civil War. Furthermore, it thoroughly influenced Congress to amend the constitution to reflect and protect all black individuals and their fundamental rights.
In 1820, as western expansion commenced, conflict arose over which states would be free states and which would be slave states. The Missouri compromise helped settle some of the dispute: Maine would be a free state, Missouri a slave state and anything else above the 36º 30’ latitude line would be free, and anything below that line would be up to those territories to decide. Southerners and northerners began to wonder how this would play out. What if a slave had crossed from slave territory to free territory? Enter: Dred Scott, a slave who accompanied his owner to Wisconsin territory, aka free. Afterwards, they returned to Missouri, a slave state. Dred Scott sued his owner seeking his freedom. He claimed that his entrance into free territory deemed him a free man, like the Missouri Compromise says! The lowest court in Missouri agreed with Dred Scott! However, when Dred Scott’s slave owner appealed to Missouri’s highest court, they disagreed and decided that Dred Scott’s slave status reattached when he reentered Missouri. It’s not over though. Upon Dred Scott’s loss in state court, he decides to bring a new suit in federal court, which makes its way to the United States Supreme Court. Dred Scott argued again, that the Missouri Compromise allowed him to be free because he was on free territory! The court again disagreed with Dred Scott. They said that actually, the Missouri Compromise was unconstitutional: also known as, crumple it up and throw it in the trash! The court said it was unconstitutional because it violated a provision in the constitution that protects people’s property. Essentially the court said that Dred Scott, as a slave, was considered the property of his owner, and when the Missouri Compromise attempted to revoke this property, that violated the constitution.
A note on Federal Courts & Diversity:
Dred Scott believed that because he was from Missouri, and because his slave owner was a citizen of New York that “Diversity” was satisfied. Diversity is a method one can use to bring their suit in federal court, as opposed to state court when the plaintiff and defendant are citizens of different states. However, in one of the most embarrassing parts of the Dred Scott decision, the judges decided that there actually was no “diversity” here because plaintiff and defendant needed to be citizens of different states, and Dred Scott, as a black individual, regardless of whether or not he was free, was no citizen at all. The court basically told Dred Scott that because he was black, had no right being in federal court. At all.
Dred Scott & the Decision’s Legacy
The Dred Scott decision has been widely denounced over time: “unquestionably, our court’s worst decision ever,” “stands first in any list of the worst Supreme Court decisions,” “the court’s greatest self-inflicted wound,” and “universally condemned the as the U.S. Supreme Court’s worst decision ever”. After the Civil War the Dred Scott decision in its entirety was voided by the ratification of the 13th and 14th amendment, abolishing slavery, and guaranteeing citizenship for “all persons born or naturalized in the United States…” respectfully.
Historical Fact: Dred Scott and his family were formally emancipated by his owner just three months after the Supreme Court denied them their freedom.