Category Archives: Law: Everything Else

Could it Really Be that You HAVE to be Stupid to be a Cop?

Posted on April 16, 2011 by Michael Froomkin

I very much hope that this news brief oversimplifies the issues in some way, because I would hate to think that — even if it’s legal — a police department was intentionally trying to avoid hiring smart applicants.

A Federal judge has dismissed a lawsuit by a man who was barred from the New London police force because he scored too high on an intelligence test.

In a ruling made public on Tuesday, Judge Peter C. Dorsey of the United States District Court in New Haven agreed that the plaintiff, Robert Jordan, was denied an opportunity to interview for a police job because of his high test scores. But he said that that did not mean Mr. Jordan was a victim of discrimination.

Judge Dorsey ruled that Mr. Jordan was not denied equal protection because the city of New London applied the same standard to everyone: anyone who scored too high was rejected.

via Judge Rules That Police Can Bar High I.Q. Scores.

And, yes, I do know there is more to smarts than IQ scores. But still.

PS. A little research suggests that this might actually be true. For example, Jordan v. City of New London, 2000 U.S. App. Lexis 22195 (August 23, 2000):

On March 16, 1996, plaintiff Robert Jordan and 500 other applicants underwent a written screening process conducted by the Law Enforcement Council of Southeastern Connecticut, Inc. (“LEC”), a coalition of fourteen cities and towns, for a position as a police officer. That testing process operated as an initial screen for participating police departments. The testing material included the Wonderlic Personnel Test and Scholastic Level Exam (“WPT”), which purports to measure cognitive ability. An accompanying manual listed recommended scores for various professions and cautioned that because overqualified candidates may soon become bored with unchallenging work and quit, “simply hiring the highest scoring employee can be self-defeating.” Jordan scored a 33 on the WPT, above the median for any listed occupation, and well over the normative median of 21 suggested for a police patrol officer.

In the fall of 1996, Jordan learned that the city of New London was interviewing candidates. Upon further inquiry, however, he learned from assistant city manager Keith Harrigan that he would not be interviewed because he “didn’t fit the profile.” Plaintiff, who was 46 years old, suspected age discrimination and filed an administrative complaint with the Connecticut Commission on Human Rights and Opportunities. The city responded that it removed Jordan from consideration because he scored a 33 on the WPT, and that to prevent frequent job turnover caused by hiring overqualified applicants the city only interviewed candidates who scored between 20 and 27.

The court is probably correct on the law, unless someone is going to try suggest that there’s some connection between IQ and a protected class (race, religion, sex, national origin, over-40-ness). But what a policy!

How long before some defense lawyer tries to use this policy to impeach a police witness?

Posted in Law: Everything Else | 3 Comments

Videosurveypanel.com’s Amazing Contractual Terms

Posted on January 28, 2011 by Michael Froomkin

I mistyped the address for Youtube.com (I left off the final letter), and got redirected to videosurveypanel.com, which managed to convince me for a considerable period of time that it was running a survey for YouTube. It wasn’t until I dug into the unbelievably one-sided contract terms that I got suspicious – it didn’t sound like Google could be this evil. And (thanks to searching on Google) I confirmed that it wasn’t.

Not only is the way they reel you in borderline deceptive — I think YouTube would have a good shot at a trademark claim since I was genuinely deceived for some time and YouTube would very likely win a UDRP action — but the contract really is an amazing piece of draftsmanship: so one-sided as to likely not be enforceable (EDIT: against the user; the user could have various claims against the company. So could the FTC.).

Here’s what you see at first:

You’ve been selected from the Miami region to take part in our annual visitor survey.
This will only take 30 seconds of your time and will enhance user experience.
Upon completion you will have the opportunity to get a free Macbook Air, Sony Vaio, or Vizio HDTV.

Even at the outset I think “get” is a bit tacky for what I presume is going to be a minuscule chance to win a drawing sometime in the far future, but hey, it’s marketing. The questions were gender, age group, number of videos watched online a week (4-10), and how much I hate ads in videos (a lot). Then on to to the register for the sweepstakes part of the show. I “chose” the flashy laptop from the option. The next screen invites me to give my email and cellphone number under a headline saying

Thank you for your response.
If you are interested, this is your opportunity to
Get your free gift

There’s that “get” again. Nothing yet about odds. Of course, I’m not going to give my phone number without seeing the Privacy Policy. And it turns out to be dire.

First, they can change it retroactively any time:

[The Company] reserves the right to revise this Privacy Policy at any time simply by posting such revision, so we encourage you to review it periodically.

Second, if I give them a cellphone number (what if I don’t have a cell? presumably I’ve violated the terms of the offer?) they will spam me with ads.

By completing and submitting a registration form you are consenting to receive SMS, wireless or other mobile offering to your cell phone. You understand that your wireless carrier’s standard charges and rates apply to these messages. To unsubscribe or discontinue SMS messages, send “STOP”, “END”, or “QUIT” to the SMS text message you have received and the SMS sender will unsubscribe you from further SMS messages within 10 days of receiving such request.

Since I don’t have a texting plan, I’ll pay for each of them until I tell them to stop. Even though they have computers, it will take the squirrel in the cage in the back room ten days to do the data entry.

Third, they will sell my data to advertisers:

When you answer “yes” or “no” to a survey question, some or all of the information that you submitted during the website registration process will be transferred to advertisers that we believe may be of interest to you without providing you with another opportunity to review the information.

When you select “yes” next to an offer, we will transfer some or all of the information that you submitted during the website registration process to the applicable advertiser without providing you with another opportunity to review the information either with our own technology or a 3rd party proxy.

Surely, by saying I want the laptop, they will say I’ve agreed to the above. And even if not, they’ve still got me:

By completing and submitting a Company registration form, you are consenting to receive marketing communications from the Company and its third party marketing partners. If, after you have shared your information with the Company, you decide that you do not want to receive marketing communications from the Company and its third party marketing partners, you can discontinue the communications and following the opt-out instructions. If you have registered or submitted information under more than one e-mail account, you must submit separate unsubscribe requests for each account.

Fourth, if all that wasn’t enough, there is a separate document called Terms on the first page of the survey, and “Terms and Conditions” at the end of the privacy policy. It turns out this isn’t a lottery at all.

It purports to be one heck of webwrap contract:

This promotion is conducted exclusively by www.videosurveypanel.com, and is subject to participation terms and conditions. Receipt of your item requires compliance with offer terms, including: age and residency requirements; registration with valid e-mail address, shipping address and phone number; completion of user survey and sponsor offers. Upon completion of all requirements, we will ship your incentive gift to your verified shipping address. Fulfillment may be delayed based on availability.

Oh-oh: “completion of user survey and sponsor offers”. Typically that means jumping through a nearly endless series of hoops. If you find a single question too intrusive – no prize. If you miss a single complex detail designed to make you fail on a tight deadline – no prize. If you can’t prove you jumped through all the hoops – no prize.

By now I’m really puzzled: I expected better from Google. (And indeed, this turns out to have nothing to do with Google, so that’s one good thing about this.)

But let’s soldier on through the Terms & Conditions and see what they say.

It doesn’t start well:

PLEASE READ THESE TERMS & CONDITIONS CAREFULLY BEFORE USING THIS WEBSITE. BY USING THIS WEBSITE, YOU AGREE TO BE BOUND BY, AND TO COMPLY WITH, THESE TERMS & CONDITIONS UNLESS YOU OFFER DIFFERENT TERMS THAT ARE ACCEPTED IN WRITING BY www.videosurveypanel.com . IF YOU DO NOT ACCEPT THESE TERMS & CONDITIONS, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THIS WEBSITE FOR ANY PURPOSE.

Leaving aside that webwrap contracts are almost certainly not enforceable if the user isn’t forced to read and acknowledge them, taken literally this language means I can’t even read the Terms & Conditions unless I agree with them. Or that by reading them, I’m agreeing to them. Sloppy and mean. And not founded in law.

The next paragraphs is no better. It seems I’m acknowledging that I love them:

By registering on this website, you are certifying you have read, understand and agree to these Terms & Conditions, as well as our Privacy Policy. Our Privacy Policy can be accessed and reviewed here. You also acknowledge that this website provides valuable rewards to consumers who respond to and complete the specified number of advertiser offers and that you are accessing this website solely for this purpose.

Note the ominous but undefined “specified number of advertiser offers” they intend to try to make customers sign on to.

But don’t worry: if it looks like you might win a valuable prize, videosurveypanel.com reserves the right to give you a single piece of bubblegum instead:

www.videosurveypanel.com reserves the right, in its sole discretion, to revise these Terms & Conditions at any time, for any reason, without notice. www.videosurveypanel.com also reserves the right, in its sole discretion, to change the methods through which future rewards are earned. This may include changing the approval requirements necessary to receive future rewards by increasing or decreasing the number of advertiser offers that must be completed to qualify, and adding or decreasing the amount of steps to confirm that you have a legitimate account. www.videosurveypanel.com may also add or remove any product or service listed as a reward at any time. If www.videosurveypanel.com replaces a reward, the new reward may not be of equal value.

Note that by now we don’t even have a contract, since they haven’t actually promised anything at all. But if you don’t like it, well, you’ve violated the terms of service:

Please check these Terms & Conditions periodically for changes. Your use of this website following any such modification constitutes your agreement to follow and be bound by the Terms & Conditions as modified. The last date these Terms & Conditions were revised is set forth below. IF YOU BREACH ANY OF THESE TERMS & CONDITIONS YOUR RIGHT TO USE THIS WEBSITE WILL TERMINATE AND YOUR ACCOUNT WILL BE DISQUALIFIED.

(Bold in original)

And it gets worse. The “rewards” are not actually rewards.

To qualify for the reward on this particular website, you may be required to complete reward offers from the Silver, Gold, and Platinum Offer Pages. Please refer to the requirements of each reward carefully.

*Please note that available reward offers will vary. Some reward offers require a purchase. Credit card offers may require you to activate the card by making a purchase, transferring a balance or taking a cash advance.

Got that? It’s going to be a very bad deal. But you can’t back out when you want to:

(1.) Your account/reward eligibility will expire 60 days from the date you register on this website. Upon expiration, you will no longer be eligible to receive the reward.

(2.) There is no way to cancel an account. If you no longer wish to remain a part of this website, you should refrain from accessing your account.

Yes a very very bad deal indeed. A couple of pages into the (very long) document, we finally get some hints of what is in store:
Continue reading →

Posted in Law: Everything Else, Law: Internet Law, Law: Privacy | 5 Comments

The Way We Live Now

Posted on January 26, 2011 by Michael Froomkin

Seems they have a great management style in nearby Aventura Adventura.  And, hey, good news!, it’s all legal too:

The district court ruled that Murphy failed to establish that she was subject to a hostile work environment. The district court found that nine of the eighteen remarks described by Murphy constituted “generalized profanity and insults.” The district court also found that Murphy failed to establish that Soroka “singled out females as the targets for” the profanity based on statements by Judy Appelgren, Soroka’s assistant, and Ginger Kimnick that Soroka routinely and indiscriminately cursed at male and female employees. The district court found that the remaining nine remarks, although sex-based and offensive, did not rise to the level of sexual harassment because they were of “limited frequency,” having occurred over two years and eight months; were not severe; were not physically threatening and were not humiliating; and did not “unreasonably interfere” with Murphy’s work performance. The district court also ruled that Murphy failed to establish a prima facie case of retaliation. The district court determined that Murphy failed to establish that she had complained about gender-based discrimination and, in the alternative, she lacked an objectively reasonable belief that she was subject to a hostile work environment based on sexual harassment.

via EYE ON MIAMI: The “Dumb Shit” Ph.D. in Aventura, discussing Murphy v. City of Adventura, 383 Fed. Appx. 915, 2010 U.S. App. LEXIS 12584 (11th Cir. 2010).

Plaintiff Murphy was represented by Richard Burton and Ben Kuehne, so this is likely court failure not lawyer failure. Is the 11th Circuit the worst place in the nation to bring a sex discrimination complaint? (I don’t know what’s doing in the 4th or the 7th, which would be my other guesses.)

Posted in Law: Everything Else | 3 Comments

Immortality and the Law

Posted on December 4, 2010 by Michael Froomkin

Captain Jack / TorchwoodHere’s an unusual Property/T&E problem: what happens to the Rule Against Perpetuities in a comic-book (or future) world populated by immortals? Enter the ‘Law and the Multiverse’ blog to consider the issue in Immortality and the law.

(Spotted via Slashdot.)

Posted in Law: Everything Else | Comments Off on Immortality and the Law

This Case Has ‘Moot Court’ Written All Over It

Posted on May 11, 2010 by Michael Froomkin

This case, pitting the fatal-paprika-allergy-warning dog vs. the co-worker with the serious allergy to canines has great facts and a knotty legal problem — surely it is coming to a moot court or mock trial near you?

Fearing a fatal encounter with paprika, Ms. Kysel’s parents and grandparents chipped in to buy her an allergy-detection dog, which works much like a narcotics-sniffing dog. After she had extensive talks with her employer, the City of Indianapolis, officials gave her permission to take the dog to work. The golden retriever, named Penny, cost her family $10,000 — it jumps up on Ms. Kysel whenever it detects paprika.

On the first day Ms. Kysel took Penny to work, one of her co-workers suffered an asthma attack because she is allergic to dogs. That afternoon Ms. Kysel was stunned when her boss told her that she could no longer take the dog to work, or if she felt she could not report to work without Penny, she could go on indefinite unpaid leave. She was ineligible for unemployment compensation because of the limbo she was put in.

Perfect.

Posted in Law: Everything Else | 7 Comments

Lawyers (and Judges) Doing Good

Posted on February 2, 2010 by Michael Froomkin

It's pretty easy to get cynical about the law. Almost any recent volume of the Supreme Court Reporter can do it.

So here's a palate cleanser: Kentucky Supreme Court recognizes nonbio mom in stunning opinion.

Posted in Law: Everything Else | 4 Comments