IrishLaw responded to PG here. She ends:

So, to answer PG's point, it was the jurors who chose to award the millions to the McDonald's plaintiff, yes -- but it was probably no accident that the jurors were who they were, because they were probably selected by the plaintiffs' attorneys for maximum probability of high verdict award. Blame the trial lawyers? I think I will.

Because one side gets to choose the jury, right. I forgot. What the hell were the lawyers for McDonald's doing in IL's world? Didn't they have the exact opposing interests in mind? Isn't the point of the adversarial system that this is so? Wouldn't they have been screening out for the maximum probability of low verdict award?

I'll give IL the benefit of the doubt and assume that the D.C. sun has just been getting to her and she wasn't thinking straight (no pun intended). She'll be back in the temperate Ohio climate soon enough.

To Wings & Vodka's dread, I suspect, I haven't quite finished with the McDonald's coffee case, which probably has the same Godwin's Rule-like properties on a blawg that abortion does on political blogs. While reading the otherwise useful comments to my first post, I noticed the shortage of good comparisons to this case.

Most of the attempted analogies fail because they ignore a distinctive aspect of Liebeck, which may be peculiar to the food and beverage industry: that it was necessary for the product to be at a third-degree-burn causing temperature while being manufactured, but it had to cool down considerably before being fit for consumption.

The Curmudgeonly Clerk returns to that hoary old stick of the tort reform movement: the McDonald's hot coffee case. He does so in order to refute arguments from bloggers who have latched on to a couple of new-to-me ideas: 1) the woman's sweatpants were really the cause of the third degree burns on her thighs and pelvis; and 2) if hot coffee may cause burns, and those burns may cause lawsuits, then legislatures surely would ban the product. If there is no such ban, then the product must not be dangerous.

Part of the public mystique of this case is that the plaintiff received so much money for what seems like a trivial incident. However, originally she just asked McD's to pay for her medical costs, which doesn't strike me as unreasonable. McD's refused, the case went to trial, the jurors saw the company as monstrously uncaring and irresponsible ("negligent," in other words) and penalized McD's.

What always amazes me in any discussion of the plaintiffs' bar is the complete, yet covert, contempt that the typical tort reformer has for juries, which contempt he shifts onto an easier target (trial lawyers). Why question the good sense of the 12 average men and women who served on the coffee jury -- or even the integrity of the elderly woman who brought the case -- when you can vilify the lawyer instead? After all, the line doesn't go "let's kill all the jurors/ plaintiffs." Yet it is the jurors who chose to find McDonald's guilty and to impose the $2.9 million penalty; it is the plaintiff who chose to sue.

Even assuming stereotypes about ambulance-chasing attornies, no lawyer can force a plaintiff to bring a case, any more than she can force a jury to render a favorable verdict. But from the rhetoric of the tort reformers who hate the plaintiffs' bar, and who consider John Edwards dismissed with the epithet "trial lawyer," an intelligent Martian would think that attornies are the whole system, instead of the cogs in the machine that enable plaintiffs to bring suits and juries to understand them.

A lot of chatter about electoral math going on here and here based on numbers that have been nicely compiled here. Though it's fun to talk about the issues, with so many states still polling within the margin of error, isn't it silly to pretend that this is going to be determined by anything but a turnout contest? If the Dems can get some of the Unregistered or Unvoting Millions to get off of the couch on election day, they'll win. If they bore those people into staying home, they'll lose. I'm inclined to think that the Democrats would be better served by cutting a few of their crappy ads ("I'm John Kerry. This is my big face on your screen.") and pouring some cash into some registration drives. Not that they'd actually need to use hard money for those activities, but post-convention ads seem so surreal--what with the massive amount of free media coverage that the candidates are already getting--that I'd rather see them use their federal funds to buy 150,000 IPod Minis to be handed out to unregistered voters in Florida or Ohio. And maybe to one registered voter in Texas.

Law students do all sorts of things over the summer, ranging from positions at top-ranked law firms to... positions at slightly lower-ranked law firms. Oh, and some other stuff too. We want to hear about your summer experiences, wherever you were -- the DA's office, clerking for a judge, public interest organizations, researching for a professor, and firms of all shapes and sizes, as well as people who took the roads less traveled. Tell us about the good, the bad, and the ugly of all the opportunities with which law students are confronted with each year, but about which they are never quite informed enough to know if they're making the right choice.

De Novo encourages all rising 2Ls and 3Ls to contribute posts about their experiences for our next action-packed symposium, scheduled to begin on August 23rd. Send your stories to submit-at-blogdenovo.org. Pass on the word to non-bloggers, and non-blog-readers. Also note: anonymity is cool with us.

It seems like just yesterday that the biggest concern in collapsing the judicial system's capacity was the possibility that 50,000 detainees would file habeaus corpus petitions to undermine America's ability to fight the War on Terrorists. Now the Big Story is Blakely v. Washington's disruptive effect on sentencing guidelines, through which the Supreme Court apparently has undermined America's ability to fight the War on Regular Criminals.

The latter doesn't seem to worry Prof. Eugene Volokh as much as the former did, though the difference may be simply that, like Justice Scalia, he agrees with the majority's reasoning in Blakely while disagreeing with it in Rasul. For most other observers, however, the immediate problem of hundreds of thousands of actual criminal cases far outweighs the hypothetical difficulty that granting habeas corpus to detainees may create.

BREAKING NEWS!

The Smoking Gun has uncovered a videotape of Milbarge hacking into our servers and changing his readership numbers. As that violates Rule 12.3(a) of our contest bylaws, we unfortunately have no choice but to disqualify Milbarge from the competition. Thus, Wings & Vodka emerges as the champion, and he will be sticking around to blog with us for the rest of the summer. Congratulations.

And a special thank you to all who participated in Survivor, whether as contestants, commenters or readers. We'll do it again, but not too soon.

When I read this AP piece in the Houston Chronicle, I was outraged. The state just gives alleged crime victims money? in amounts like $20,000 for sexual assault? Perhaps people ought to receive monetary compensation without having to pursue a civil trial (particularly against defendants without financial resources), but shouldn't they have to prove their allegation first?

Defense attorney Pamela Mackey certainly put it in an ugly light, saying that the accuser "has profited to an enormous amount, $20,000. I would suspect to most people in this county is a lot of money, most of our jurors, and she has done that on the basis of a false allegation and has persisted in that false allegation."

Then I read the longer, updated AP piece from MSNBC.

Hearsay:

so, uh, the Clerk is baiting you on another child pornography case... the girls are from my high school. That judge gave us the "drive carefully, or I'll keep you from driving until you're 18" speech when we all received our licenses. Sigh.

Earlier this year PG of De Novo and I had a bit of debate about child pornography charges lodged against a teenage girl for photographs that she took of herself. I think such charges are likely illegal, while PG seems to think otherwise. Now I see yet another instance of such prosecution has arisen.

Regarding this amusing parody of the song "This Land is Your Land," and the unjust, if legally warranted lawsuit against it, I think Professor Volokh gets the fair use analysis completely wrong:

The copyright owners have a pretty good case. If JibJab were making fun of the song, then the cartoon would likely be a fair use. But JibJab seems to be just using the song to make fun of Bush and Kerry, rather than making much of a comment about the song itself -- that makes the fair use defense much weaker. (See Campbell v. Acuff-Rose (1994), the "Oh, Pretty Woman" case; see also Dr. Seuss Enterprises v. Penguin Books USA, the Seuss-rhymes-about-O.J. case from the Ninth Circuit several years ago.) I realize one could argue that JibJab is partly commenting on the song, and, even if courts reject that argument, JibJab's fair use case isn't a clear loser. But on balance, the copyright owner's s argument is likely stronger than the defendant's.

JibJab's work does far more than "partly comment[] on the song." It lampoons the idealistic notions of American unity in the original song, throws in a comic, but scolding, reminder that "this land" isn't really the land of Native American's anymore, and contrasts the silly geographical themes of the song with our childishly divisive political climate.

Like most of the people watching the Democratic convention, Slate correspondent Dahlia Lithwick is chiefly occupied with critiquing everything they're doing wrong. Her first dispatch mostly just mocked the onanistic coverage and bipolar rhetoric, but the end of the article revealed a more urgent concern:

My overwhelming memory of the GOP Convention four years ago was of the harnessed, focused, laserlike energy of suppressed Republican rage. I keep hearing about the rage of the Democrats, but I can't find it here; with the exception of Michael Moore, who is whirling around like the Tasmanian Devil in a baseball cap.
Words like "Abu Ghraib" and "Guantanamo" and "torture memo" are choked back until your head hurts. I, for one, am not "terrified, yet braced- for- the- challenges." I am "terrified, yet petrified." I am "frightened, yet sickened." Today, I hit the streets of Boston in hopes of hearing that speech.

I didn't actually see any of the convention coverage last night. But blessed with the New York Times full-text of the convention speeches, I can relive it this morning, and pass along the highlights, as I see them.

Al Gore:

"I’m going to be candid with you... sheep... especially my beloved partner in life... BeBe Winans...."

OK, I know, stringing together non-sequiters with ellipses is a cheap joke, and is only marginally amusing. What you really want is sharp, incisive political commentary. Sorry. But I can at least try to excerpt the meat of the speech and insert some semi-coherent comments in italics.

"I sincerely ask those watching at home tonight who supported President Bush four years ago" Um, are any of those people actually watching? Their convention is still a month away... "did you really get what you expected from the candidate you voted for? Is our country more united today? Or more divided? Has the promise of compassionate conservatism been fulfilled? Or do those words now ring hollow?

A friend who enjoys perverse Americana sent me to a website with "lesbian" paperback artwork from 1950s and '60s pulp fiction. Lust on the Run ("He forgot his tramp wife in a depraved love-nest"), by Josh Tithing, sold for 95 cents -- but only to adults. The frontal nudity on the cover is obscured by "Adults Only" and "Sale to Minors Forbidden" warnings.

While movies, music and magazines frequently bear similar cautions, with legislatures enforcing them by statute, I've never seen a book in a bookstore that had even a "parental advisory" sticker. Romance novel fansites will rate books for the level of sexual content, but this information must be sought out; it does not appear on the cover of explicit works.

As you can tell, working for a firm in the summer does something to the productivity of a law-student blog. As Nick, Jeremy, and I are at firms this summer and PG is enjoying her last summer before law school, I do hope that you pardon our irregular posting habits. We are certainly thinking about the law, only most of us are providing our legal thoughts to employers right now -- and not the world.

I am, however, keeping up with politics and press, as well as a little law, over at Law Dork and encourage you to visit if you'd like to read about the Marriage Protection Act; the NYTimes' liberal bias; or other topics at the intersection of law, politics, and press.

I entirely agree with Prof. Kerr's comment here regarding the accuracy of the ACLU Flash movie's depiction of a Matrixed America. In accordance with their customary practices, the ACLU is freaking out somewhat disproportionately to the actual problem. The information displayed in the Flash film is unlikely to be gathered by the government.

However, the crux of the ACLU's concern with the Matrix program -- the sentiment behind the cartoon -- remains: the sharing of information between private sector entities and the government. There was and is similar concern about the sharing of information between terrorism-preventing departments and "regular" law enforcement.

While many Americans may be puzzled as to why this would be problematic -- why shouldn't the government know my credit rating? my future landlord does -- the ACLU appears to be concerned that this represents a step down the (you knew it was coming) slippery slope of information flow between commercial entities and public authorities. After all, if Sam's Club sent the receipts of purchases made with "business expense" cards to the IRS, I suspect the latter could nab a lot more people for improper tax accounting. Which brings up a consistent theme of the ACLU's response to the expansion of government powers and programs post-9/11, that all such expansions must have a strict relation to the prevention of a terrorist event, and not be utilized to catch non-terrorist criminals.

The best part about being in Vegas for a few days (aside from the 107-degree heat, which is just awesome…I think my pancreas melted this afternoon) is that I actually get to see some campaign ads. Texas having been marked down for Bush a long time ago (an out-of-date assumption in my book, given our Hispanic population—but that’s another post) we really only get campaign ads when they’re part of a national buy, and since I mainly watch Bravo and the Style Channel, I have to go out of state to see any good TV spots. This is a shame because, as a law student with the soul of an advertising copywriter (and the portfolio of an advertising copywriter, the degree of an advertising copywriter…and, let’s face it, the legal knowledge and skill of an advertising copywriter), I take a special sort of joy in watching what the policom outfits churn out for election season. It’s never good from a creative standpoint, and it’s usually misleading from a factual standpoint, but that doesn’t mean it’s not perfect from a popcorn-munching, hand-me-my-Fanta, who-stole-the-last-Bon-Bon standpoint.

Milbarge and Wings & Vodka are the final two challengers in the enormously successful Survivor: Blogosphere!

As the final challenge, we ask the two of you to write for the next week on the topics of law, politics, law students, lawyers, or any appropriately related topic, with the judge and points being awarded by the rest of the blogosphere.

The winner will be chosen basen on links obtained, with bonus points to be obtained by receiving links from:

* The guy who started it all: Unlearned Hand (2 points).
* Our role models: Volokh, Crescat, or Crooked Timber (3 points).
* The blawg-o-rific: Instapundit or Howard (5 points).

It's Thursday afternoon . . . next Friday, we will announce the winner.