Law -

I’ve been studying to take the Oklahoma Bar Exam recently (test next Tuesday, wish me luck!), reviewing the generally accepted standards of agency law, and I now have a newfound respect for the instructions that the organizers of the Game Developers Conference volunteer worker program (otherwise known as Conference Associates, or CAs) give every year about not doing anything untoward either while on or off duty with your organization-issued t-shirt on.

As one of the organizers, Ian, made clear recently in an e-mail discussion, “CAs are perceived to represent GDC but are not affiliated with UBM which as we can imagine, makes UBM nervous.” Damn, I’d be nervous too! Under general agency principles, anyone (even minors) held out as acting with the apparent authority of a principle (UBM in this case) can create both contract and tort liability for things that they do within the scope of the employment. If what you’re doing is in furtherance of a principle’s business (such as, say, denying someone with the wrong badge access to a session), the principle can even be liable for an agent’s INTENTIONAL TORTS. (For those that don’t know, intentional torts are the civil law version of things like assault, battery, and false imprisonment)

Not that anyone volunteering should need reminding of all this, but I was just amazed at the universe of legal consequences that UBM is embracing when they authorize Tim and Ian to hand you a brightly colored shirt. So when they tell us, “do NOT touch an attendee, UNDER ANY CIRCUMSTANCES,” keep in mind just how seriously they mean it. Even if something questionable we do is ultimately held by a court to be okay, people these days love to sue and even borderline cases could cause a world of hurt (and $$$) for the people that make the conference possible.

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Courtesy of Japanese importer NCSX’s web store:

Valkyrie Profile Silmeria Artifact Box @ $289.34
Speculators appear to be on the loose again this week and are snapping up supplies of the Silmeria Artifact Box. Due to a newly announced “shortage” situation in Japan, vendors have raised our cost for the Valkyrie Profile Silmeria Artifact Box to Y29,800 which converts to US$259.34 based on this morning’s exchange rate. That’s our cost before shipping charges. NCS originally accepted preorders at US$155.

I have a standing policy regarding the disreputable tactics of cocksucker businesses like National Console Support: Fuck ’em.

I’m of the opinion that when you make an agreement to sell a product to someone at a given price, honoring that price is the risk a vendor takes to secure your business. If the final price is as volatile as all that, they ought to make that clear prior to the sale. That said, if they do not notify the buyer that the price is subject to change upon release and commence with that shit anyway, it shouldn’t be enough to merely cancel the order. It should impact any future consideration of doing business with them as well.

By the same token, I as a the preorderer agree to the risk that the price they offer may result in an excess profit for them. Hence the reason one shops around and selects the best deal. To suddenly raise the price because of a projected loss on their part makes including them among one’s prospective orders too dangerous to bet on, especially on high dollar items. They would have us believe that, despite the retail price being set long beforehand, the wholesaler with whom they are affiliated arbitrarily decided to charge more. In that case, they should either accept the loss they will incur and/or find a different and more consistent wholesaler. Any smart business would do the same.

I don’t buy their “speculators” excuse for a moment. I could be mildly sympathetic if their “supplier” arbitrarily decided they could only provide some number of the item less than what is preordered, forcing the business to either cancel/charge more for customers in reverse chronological order. But the retail price is the retail price. I suspect, in reality, their supply was actually less than the demand for which they accepted preorders. And they decided to make a buck off it, while at the same time reducing their preorders (based on people who would cancel) to come in line with their actual supply.

I have absolutely no problem with charging what the market will bear for preorders, given their potential supply, even if that’s $300! But to preorder at a low price and then raise it after the fact does a disservice to the customers who chose to trust them with their business.

Consider yourself warned.

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I think it was my sister’s school, Wellesley, that had the Honor Code thing down right. The actual text is available here, but as she explained it, students could take their final exams when they wanted, where they wanted, and in the presence of whomever they wanted (within the limits of reason, of course). The logic behind such flexibility was simple: the students at Wellesley were bound by the school’s Honor Code not to cheat. When a student begins their education at Wellesley, they make a pact with the school to abide by the Code, and in exchange the faculty and staff extend their trust to the student body. They trust the students to honor the Honor Code. Contrast that to the code by the same name at OU Law.

OU’s code is noticably less clear-cut than Wellesleys. In truth, when one considers how OU’s Honor Code is invoked in daily practice, from my experience a violation seems to consist of “Obvious academic misconduct, plus whatever else the faculty in question says is infringing.” Case in point is my own Honor Code debacle in the Spring 2005 Contracts final. For students taking their exams on a laptop, the University provides tightly restrictive exam software (oh so aptly made by a company named “Extegrity”). It locks your computer from any functionality beyond a basic word processor until the exam is over. As had numerous students, I had the unfortunate habit of not actually launching the exam software until I was ready to use it – I simply left my laptop blank on its Desktop as I worked through multiple choice or essay preparation. This neglectfulness caught up with me in my Contracts exam when forty minutes in, another student brought to the professor’s attention that some students had not yet started their software. This resulted in a major headache when the teacher approached me and very nearly charged me with academic misconduct on the spot. Fortunately after many apologies and a check of my laptop’s activities through the IT department, I was vindicated (and aced the class!). Yet through it all the professor insisted that while she understood and believed that I was not cheating, I was still “in technical violation of the Honor Code” by not starting the software. Oh?! Since when is the Honor Code designed to prevent me from impressing everyone with the might of my World of Warcraft desktop wallpaper? No, it was a violation of the Honor Code because the professor said it was, thus giving her all the flexibility she would need to prosecute me for academic misconduct if she had any doubts.

My larger dispute with OU’s Honor Code is that at some point it ceases to have any value. What is the point of an Honor Code if the students obviously will not be trusted in the slightest? Is it just a loosely defined crutch the faculty can use to justify restricting any conduct of which they disappove? Is it an appeal to the students’ morality not to cheat (but just in case, we’re going to employ a little “extegrity” as well)? The latest instance has arisen with tomorrow’s Conflicts final: the professor is afraid to allow students to use their laptops to refer to their notes (open book, open note exam). If the Honor Code had any real value, not only would that be an option, but what would be the practical reason barring students from even taking their exams on unsecured laptops and turning them in on thumbdrives?

How can a school expect its students to value an Honor Code when they, themselves, see it as worthless?

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In resolving a choice of laws issue, rather than utilizing the fine tools of the 1st Restatement of Conflicts, Interest Analysis, or the 2nd Restatment, I propose this, the Realistic Approach for judges to apply:

  1. Identify the conflicting laws.
  2. Decide which state’s law you would like to use.
  3. Justify it (using any number of factors, contacts, and interests).

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Follow-up to the last post… perhaps I am approaching the issue from too American a perspective. The time here in Oxford has shed fascinating light onto Britain’s unique system of government. Unlike the U.S., The United Kingdom has no written constitution. It is a constitutional monarchy, governed by a parliamentary democracy. Many of the rights codified in the U.S. Constitution from free speech to gender and racial equality are just as valid here as in the States, but written down nowhere. Instead, convention dictates much of the government’s function, enforceable only by morality and each political party watching the others’ moves. The net effect, in my opinion is a mixed bag. It becomes very difficult to know the rules of the game, since the courts are no longer the final arbiters of justice (oh yeah, no judicial review either. again, by convention). But just because that is the way in the U.S., is that really the best way to do things? Unlike the States, the unelected judges (and “Supreme Court” of Britain’s Law Lords) are not absolute and unaccountable. They cannot overturn statutes with binding authority (though this is changing in recent times, especially with regards to the European Court of Justice).

What does all this have to do with Harry Potter? Maybe nothing. But maybe it’s a real world illustration of an American/British cultural divide on how, and by what conventions, authority figures govern themselves. It’s nice to think Rowling’s characters are the products of societal differences rather than sloppy storytelling. But hey, whatever makes me feel better about obsessively reading a children’s book! Right?

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Whenever I hear talking heads on either side of the aisle spout about the threat of “activist judges” legislating from the bench, the legal-minded part of me cringes. Bill Maher jokes that in a world of terrorism and pretenses for war, “activist judges” are the least of our worries, while Sean Hannity says that judges with lifetime tenure can’t be allowed to unaccountably reshape the law as they see fit. I think the truth of the matter falls somewhere in between.

The United States has always subscribed to a common law system of jurisprudence, adopted from the British system from which we derive many of our legal principles. Under that system, laws are adopted through a variety of means (legislative acts, executive orders, constitutional amendments, etc.), and it is the job of the judicial branch – judges – to flesh out the meaning of those laws. That means that simple phraseology used by legislators, such as granting Congress the power to make all laws “necessary and proper” to carry out the powers granted to them (Article I, Sec. 8, Cl. 18 of the US Constitution), gets scrutinized and considered by judges to determine how those standards should be applied. Unless overturned by a higher court, one judge’s interpretation of that law then receives the full weight of law in the future – in essence, it becomes another way of deciding what the law is. It’s always been done this way, and it’s important that this privilege continue. Judges become the final arbiters of how laws are applied because the laws themselves are not written specifically enough to be directed to every applicable case! To do away with judicial interpretation would require a law to be on the books for every conceivable scenario, and even then new, unforeseeable interpretations would still crop up (for example, how the Internet is changing the way we view traditional copyright laws).

So judges need their power to apply the laws in specific cases. The problems arise when they use this interpretive power to make laws where the shoe doesn’t really fit. Abortion is an example of this – framing the abortion of a viable fetus in a woman’s right to liberty or freedom to contract. The judges are in a Catch-22 here, when there is no law on the books applying to the specific situation and yet they are called upon to make a ruling because the case at bar requires it. Most often they do the best they can, but in truly polarizing issues, it’s impossible to keep personal beliefs from creeping in. This problem has been the source of numerous heinous court rulings and the potential for abuse is real. But the solution is neither to dismantle the common law system by neutering judges nor to put the fear of God into them by removing them from office whenever a politically unpopular decision is written.

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