Thursday, November 7, 2013

The Law in Life has moved!

The Law in Life has moved!

Thanks to the web genius of Tamara Olson, dear friend and talented designer, The Law in Life is operating in a new and improved location with a new and improved look.

Please visit the blog at its new home:

And our latest post--ever wondered how far out in the ocean laws go?

Sunday, November 3, 2013

How do campus police officers have jurisdiction?

In 1894, Yale created the first university police (n.b. the link has photos!). Two New Haven police officers agreed to take exclusive assignment to the Yale campus after some town and gown skirmishes, including a scuffle over rumors that the medical school was exhuming bodies from graves to use as cadavers. (!)

Image courtesy 27665395@N05

Nowadays, campus police (generally at bigger schools) get their authority from state legislatures. Most states have state laws that give university police concurrent jurisdiction with other law enforcement. Some campus police departments have mutual aid agreements with nearby law enforcement agencies in case of an emergency. And the presence of campus police does not necessarily mean that municipal police are divested of jurisdiction on campus, even if campus police have primary jurisdiction. Private security guards (generally hired at smaller schools) cannot make arrests, but can be licensed to carry weapons.

For more:
  • International Association of Campus Law Enforcement Administrators 
  • Office of Justice Programs - Bureau of Justice Statistics - Campus Law Enforcement
  • Daniel Engber, Slate, Are Campus Police Like Regular Cops? (Nov. 7, 2011) (in wake of Penn State Sandusky charges), largely similar to Daniel Engber, Slate, What Can Campus Cops Do? (Apr. 16, 2007) (in wake of Virginia Tech Shootings). 
  • Harvard University Police Department - Frequently Asked Questions
  • Yale University Public Safety, History of the YPD (quoting Bill Wiser: "In 1894, Jim Donnelly and I were assigned by the chief of the New Haven police to duty the Yale campus. No policeman before this time had ventured on these sacred grounds, and the campus had come to be considered a place of refuge for students fleeing from the wrath of the city police . . . . The general belief on the force was that the Yale boys would never permit two policemen to live on campus.")
  • Barry T. Meek, Associate General Counsel, University of Virginia, The Virginia Court of Appeals Clarifies Jurisdiction of Campus Police Officers Acting under a Concurrent Jurisdiction Order with an Adjoining Locality, Virginia Police Legal Bulletin, Vol. 2, No. 2 (Sept. 2007) (posted on Radford University website) (posted on
  • Virginia Code Sections 23.232 through 23.236; see also Hall v. Commonwealth, 12 Va. App. 559 (1990) (campus police have jurisdiction in areas "immediately adjacent" to campus, and a parking lot across the street doesn't count); Commonwealth v. Borek, 68 Va. Cir. 323, 2005 WL 1862335 (2005) (campus police can't arrest someone driving drunk around Charlottesville, VA).
  • University of Oregon Police Department - Current Statutory and Municipal Authority (citing Oregon Revised Statutes 352.383; 352.385 (free from; Eugene Municipal Code 4.035; 4.906 (Eugene Municipal Code - Chapter 4 - downloads PDF from
  • California: 
    • University of California Police - Cal. Pen. Code 830.2(b) (UCPD's primary duty is to enforce the law within the area specified in Cal. Ed. Code 92600); Cal. Ed. Code 92600 (UCPD officers have jurisdiction on University of California campuses, within a one-mile radius of the campus, and in and around property owned by the UC Regents).
    • California State University Police - Cal. Pen. Code 830.2(c) (CSUPD's primary duty is to enforce the law within the area specified in Cal. Ed. Code 89560); Cal. Ed. Code 89560 (UCPD officers have jurisdiction on California State University campuses, within a one-mile radius of the campus, and in and around property owned by--or on behalf of--the California State University).
  • Colorado:
    • Colorado Revised Statutes 16-2.5-148: Colorado state higher education police officer ("A Colorado state higher education police officer employed by a state institution of higher education pursuant to article 7.5 of title 24, C.R.S., is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado and who shall be certified by the P.O.S.T. board."); Colorado Revised Statutes 24-7.5-101 through 25-6.5-106: Colorado Higher Education Police Officers; see especially Colorado Revised Statutes 24-7.5-103: Powers Conferred ("State higher education police officers . . . when operating on property owned or leased by the state institution of higher education, are granted all the powers conferred by law upon peace officers to carry weapons and make arrests. . . . When not on property owned or leased by the state institution of higher education, state higher education police officers shall not have any greater authority than that conferred upon peace officers by section 16-3-110, C.R.S."); Colorado Revised Statutes 16-3-110(b)(2) ("A peace officer shall have the authority to act in any situation in which a felony or misdemeanor has been or is being committed in such officer's presence, and such authority shall exist regardless of whether such officer is in the jurisdiction of the law enforcement agency that employs such officer or in some other jurisdiction within the state of Colorado or whether such officer was acting within the scope of such officer's duties when he or she observed the commission of the crime, when such officer has been authorized by such agency to so act. The local law enforcement agency having jurisdiction shall be immediately notified of the arrest and any person arrested shall be released to the custody of the local law enforcement agency."). Colorado Revised Statutes available free to the public on LexisNexis if you click a disclaimer, then search using the following form: C.R.S. 16-2.5-148.

Thanks to S for this question!

Saturday, November 2, 2013

Could we have a 51st state?

Some grumpy Northern Coloradoans have proposed seceding from Colorado and becoming a 51st state (called, creatively enough, "North Colorado").

Image courtesy walkingsf

New states are not entirely outside the realm of possibility. After all, the United States' state boundaries didn't magically spring forth from the earth pre-formed. Congress passed laws granting statehood as recently as 1959 (Alaska and Hawaii) and 1912 (New Mexico and Arizona). There is even precedent for secession: West Virginia seceded from Virginia in 1863.

However, no matter how many Northern Coloradoans want to secede, Congress needs to approve each and every admission of a new state into the union. The District of Columbia Statehood Movement and Puerto Rico Statehood Movement have not had much luck in the past.

Stranger things have happened, but it's not likely we'll need to scrap our maps to add North Colorado any time soon.

For more:

Friday, November 1, 2013

Are you required to have birth and death certificates?

The law is everywhere. It affects how we actwhat we eatwhere we live, and even how we talk. There are laws for pretty much everything. It's like the law can't stand to be out of control!

Image courtesy crabchick

But law can't legislate death away. So when the law confronts birth and death, what does it do? It requires registration of these important life events. (Not to mention lawmaking about euthanasia, contraception, sterilization, and abortion--topics that I will leave for another day.)

Federal law requires national collection and publication of vital statistics. Federal law can also require you to produce a state birth certificates for various activities, like getting a passport (or being President, in Orly Taitz's universe).

States also regulate vital statistics. Some states had vital statistics laws as early as the late 19th century, but generally they were not enforced until the early 20th century. Missouri, for example, repealed its 1883 vital statistics law in 1893 because most people were not complying (Missouri passed another vital statistics law in 1909, which stuck). Wisconsin passed a vital statistics law in 1852, but counties kept very few records before 1907.

In the hospital, getting a birth or death certificate is pretty straightforward. But what if you are born or die at home?

Home births can sometimes make registering a birth more difficult, though some midwifes assist in the process. Jurisdictions may require more proof of facts like the identity of the parents, the pregnancy of the mother, that the infant was born alive, that the birth occurred in the jurisdiction, and the identity of the witness of the birth.

For deaths, States like Texas require use of an Electronic Death Registration System.

And being buried at home might get your relatives sued

For more:

Monday, October 28, 2013

Can't the law just fix underwater mortgages?

California has been particularly hard hit by the foreclosure crisis. Many homes are underwater, meaning homeowners owe more on their home mortgage than the home is worth.

Image courtesy shankbone

Say a homeowner took out $500,000 at the height of the market to buy a house, but that house is now only worth $250,000 after the housing crisis. Homeowners are stuck--they cannot afford to pay their mortgage, but they cannot sell their homes to repay the mortgage, either.

It is in the bank's interest as well as the homeowner's to keep the homeowner in her home and making affordable loan payments. Ideally, the bank would reduce the amount the homeowner owes on the mortgage to match the home's diminished value. But for various reasons, it is hard to make principal reduction happen. One of these reasons is that banks are not always free to do what they want with the mortgages they created (or in Bankish, the mortgages that they "originated").

Wait, what? Banks don't call the shots on the mortgages they originated? Here's why. Banks often "pool" mortgages and sell them to financial institutions (either government--think Fannie Mae and Freddie Mac--or investment banks), who in turn sell them to groups of investors. The banks can take the money they make selling off mortgages towards making new loans. Great idea, right? The risks of individual mortgages are evened out, and banks have the money to keep on churning out fresh loans.

But there are consequences of this pooling system. Banks that sell off mortgages have to follow certain conditions laid out in "pooling and servicing" agreements. These pooling and servicing agreements are notoriously sloppy. When they were drafted, nobody expected things to go wrong. If you're in the mood to gouge your eyes out, you can read through one of the disastrous things here. Though pooling and servicing agreements often take away the banks' rights to modify the mortgages they sell, the example agreement I've chosen actually appears to grant banks authority to modify--but kind of tough to tell what exactly the bank is allowed to do under the agreement's murky language: "In order to minimize losses on defaulted mortgage assets, the servicer may. . . be permitted to modify mortgage assets that are in default or as to which a payment default appears imminent."

If you're feeling brave, you can look to see if your own mortgage has a pooling and servicing agreement using these instructions from the Ohio Supreme Court. Start here and put in your lender's name, look for the date your mortgage was made, click on the prospectus, then do a control + F for "modify" to see what the contract says about your bank/servicer's authority to modify. This process of finding your pooling and servicing agreement is one part art, one part science, and one part guesstimation, so please don't despair--it's not you, it really is just unnecessarily complicated and confusing.

In pooling and servicing agreements, investors often freeze the original loan contract in place. As a result, the banks don't have the authority to modify the home loans. All that the bank can do under the contract is continue to collect mortgage payments and send them along to the investors who own the pool of mortgages.

Again, everybody here is stuck: the homeowner is stuck in her home, the bank is stuck charging a homeowner according to the original plan, and both are locked in to an agreement by an depersonalized group of investors who have no relationship to either homeowner or bank.

Enter law. The law can fix things, right? Well, people are trying a lot of different legal strategies to deal with underwater mortgages.

State and federal governments tried to address part of the underwater home loan situation using litigation. In 2012, the Department of Justice, the District of Columbia, and 49 states' attorneys general (all except Oklahoma) sued the five major mortgage lenders: Bank of America, Wells Fargo, JP Morgan Chase, Ally/GMAC, and Citi. They brought the suit in the DC Circuit in March, and by April all five of the banks agreed to settle. The complaint specifically did not address the mortgage securitization issues we talked about above, like pooling and servicing agreements, but focused mostly on the banks' deceptive and unfair business practices in customer service (being uncommunicative, transferring homeowners to many different points of contact, foreclosing on a house while a homeowner was applying for a modification, etc.).

Local governments are talking about using another controversial strategy: seizing underwater home loans using eminent domain. About two dozen local governments are considering these strategies, in California (San Bernardino County, the City of Sacramento, the City of Richmond) and across the country (Chicago, IL, North Las Vegas, NV, Detroit, MI, Suffolk County, NY, Newark and Irvington, NJ). San Francisco-based venture capital for-profit firm Mortgage Resolution Partners has been pitching the idea to local governments across the country.

The way eminent domain would work with underwater mortgages is roughly as follows: governments would seize the mortgages and pay the investors (generally pension funds and money market accounts) fair market value for them. Local governments would then sell the mortgages to a new investor, which would generate the money to pay fair market value for other underwater mortgages. Sound familiar? It's similar to the process banks use to service mortgages, just with a local government stepping in to press the "re-set" button.

Would a "re-set" be fair to the people who depend on those pension funds and money market accounts (like those who depend on the California Public Employee Retirement System)? Would those funds have any chance of getting the money they expected, anyway?

We don't know yet. And we may have to wait to get the answer.

The question has not yet been properly brought before a court. Judge Charles Breyer of the District Court for the Northern District of California recently dismissed a complaint that Wells Fargo filed against the City of Richmond--because nothing has happened yet, the claim was not yet ripe for adjudication.

NOTE: There are many folks out there with more expertise on this complex subject than I have. Please, as always, feel free to forward your corrections to

For more:

Saturday, October 26, 2013

What has changed about airport security since the last time you went through it?

Last year, Congress passed a bill that changed how body scanners work at the airport. TSA agents will no longer see an image of your naked body that looks like this -- they will see a generalized graphic that looks like this. The bill went into effect this summer.

Image courtesy niiicedave

The story begins with the Christmas "underwear bomber." On December 25, 2009, Umar Farouk AbdulMutallab attempted to detonate a device onboard Northwest Airlines Flight 253 as the plane neared its destination of Detroit, Michigan. The device started a fire inside the plane, but only AbdulMutallab and a few fellow passengers were injured (including Jasper Schuringa and other passengers who helped put out the fire and restrain AbdulMutallab).

AbdulMutallab had boarded the plane on a leg of the flight from Lagos, Nigeria, to Amsterdam without going through a full body scan. The plastic explosive ingredients in AbdulMutallab's underwear (including pentaerythritol tetranitrate) are not detectable by metal detector.

Shortly after the "underwear bomber" incident, the Transportation Security Administration ("TSA") installed body scanners in airports throughout the country. At their peak, about 180 body scanners were in use in airports throughout the United States.

Many have raised health concerns or concerns that the body scanners are not effective, but Congress has acted primarily in response to privacy concerns. In 2012, Congress passed The FAA Modernization and Reform Act, which required all body scanners to employ Automated Target Recognition software that does not display an image of the airline passenger's naked body. The Act initially set a deadline of June 1, 2012, that was later extended to June 1, 2013. 

Despite the extension, Rapiscan Systems failed to upgrade the airport body scanners to use Automated Target Recognition software. As a result, TSA ended the "backscatter contract" with the Hawthorne, CA-based security company. The contract was originally worth multiple millions of dollars. The Rapiscan body scanners are now being replaced with radio body scanners built by L-3 Communications Holdings.

A few Harvard Law students filed Redfern, et al. v. Napolitano, et al., a pro se civil rights challenge to TSA's use of the body scanners. In July, the First Circuit Court of Appeals dismissed the claim as moot because the full body image body scanners were already being phased out.

NOTE: You have the option to opt-out of a body scan. To opt out, ask the TSA agent to opt out before you are sent through the line. (See Ana Mana's experience opting out at LAX on YouTube.)

For more:

Thursday, October 24, 2013

Why do we observe daylight savings time?

Ahh, falling back. Daylight Savings Time ends at 2:00 a.m. on November 3, 2013, when people in many parts of the world will turn clocks back to 1:00 a.m. for a bizarre do-over of 1:00 a.m. to 2:00 a.m. that day. Even as we remember the sting of springing forward, "getting an extra hour" in the morning feels sooooo good.

Image courtesy quinndombrowski.

But the rationale for Daylight Savings Time is not to gain that extra hour of sleep in the fall. It's for that extra hour of daylight in the summer. During summer months, some parts of the world advance their clocks one hour to maximize evening daylight hours, in theory saving energy required to light evening activities before bed.

Kind of crazy, until you realize that historically, many societies depended so heavily on the sunlight that they measured the day in unequal hours (e.g. Talmudic hours), where an hour meant a certain fraction of the daylight--anywhere from 44 to 75 minutes long, depending on the season.

Thinking about time as a social and legal construct makes my head hurt a little bit. It made 20th Century America's head hurt a little bit, too. In the United States, the Standard Time Act of March 19, 1918 established standard time zones and the first observance of Daylight Standard Time as an energy saving effort. Daylight Standard Time was unpopular and was abolished until World War II, when it enjoyed another nationwide stint from 1942-1945. Since 1945, the question of whether to observe Daylight Savings Time has been up to the states. Although the 1966 Uniform Time Act expressly superseded state laws, the Act allowed leeway for 1) entire states or 2) entire portions of a state within a given time zone to exempt themselves from Daylight Savings Time. Arizona, Hawaii, Puerto Rico, and the U.S. Virgin Islands do not observe Daylight Savings Time.

Native nations are free to observe or not observe Daylight Savings Time. The Navajo Nation in Arizona, for example, observes Daylight Savings Time. The Hopi Reservation does not, despite being surrounded by the Navajo Nation. In fact, in Tuba City, AZ, the time zone can change across the street.

For more:

Tuesday, October 22, 2013

Why don't rabbit ears work on my TV anymore?

Television was once transmitted in analog format in the United States.

Image courtesy sarahdeer. Remember these?
However, analog is an inefficient broadcast method and uses a lot of bandwidth.

Worldwide, many countries have begun to make the switch to digital, including the United States in 2009 and Canada in 2011. The Geneva 2006 Agreement sets June 17, 2015 as the date when countries will no longer be required to worry about interfering with their neighboring countries' analog TV stations--a date many are treating as the analog cutoff date.

Proponents of digital television argue that the switch has significant benefits for spectrum efficiency, and that the switchover will free up frequencies for public safety transmissions and expanding wireless Internet access.

In 1996, Congress authorized giving every full power television station another channel so they could transmit analog and digital television signals simultaneously (a "simulcast"). Initially, the Digital Transition and Public Safety Act of 2005 set the date when stations were required to stop transmitting analog signals as February 17, 2009. The 2005 Act also established the DTV Converter Box Coupon Program, which provided people (but not prisons) with up to $80 in coupons to purchase digital-to-analog converter boxes so that they could continue to receive free television broadcasts without needing to purchase cable. The voucher program involved delays and waiting lists, and $40 was not always enough to cover the costs of a converter box. Two weeks before the cutoff date, Congress passed the DTV Delay Act to extend the cutoff date to June 12, 2009, at 11:59 p.m. Many stations went ahead and switched off their analog stations in February, anyway.

The Coupon Program was not the only controversy to plague the Digital Television Transition. The transition mainly affected those who have older television sets and do not pay for cable, and would doubtless affect low-income persons more than higher income persons. Some argued that senior citizens would have difficulty making the transition from analog to digital. Electronics recyclers estimated that one in four households would discard at least one television as a result of the transition. Some rural viewers, who get their TV signal from a translator antenna instead of directly from the station, were unable to receive the digital signal even after installing a converter box--because the translator antennas failed to make the transition.

But don't throw away those rabbit ear dipole antennas yet -- you can still try to use them to pick up a digital signal.

For more:

Sunday, October 20, 2013

Why can houses be haunted as a matter of law?

Houses are like boyfriends. No matter how they look on paper, often it is a certain je ne sais quoi that makes or breaks the deal.

Image courtesy smemon

Sometimes, that house's je ne sais quoi is its haunted stigma.

Every year around Halloween time, we legal nerds trot out Stambovsky v. Ackley, the "haunted as a matter of law" case. Yes, as the detractors shall say, the case has little precedential value--judges nationwide aren't running around declaring things haunted as a matter of law every day. It's mostly relevant for people trying to sell historic homes in New York. So why are we still talking about it?

The case has staying power for two reasons: 1) we love a good story about something that is true in law and dubious in fact (see also the story of the man who failed to convince a court that he was not legally dead); 2) we love when the law reflects our values, even when they aren't rational. Well, OK, and 3) we love when the law, ordinarily so serious and formal, has a sense of humor. Justice Israel Rubin--or probably more accurately, his ghostwriting law clerk--does not disappoint us in the opinion he writes for the Stambovsky majority, peppering his opinion with ghost puns, Ghostbusters references, and a quote from the ghost in Hamlet.

The story behind Stambovsky is simple enough. In 1989, Helen Ackley tried to sell her ginormous mansion in Nyack, New York, to Jeffrey and Patrice Stambovsky. The Stambovskys put down a $32,500 deposit. All appeared to be going well, until an architect mentioned to the Stambovskys in passing that they were buying "the haunted house." Indeed, several newspaper articles (the New York Times, Reader's Digest) had covered the house as haunted. This particularly upset Patrice, who refused to move in to the house. The Stambovskys sued, claiming Ackley should have warned them about the haunting like any other home defect, and demanded their deposit back. The state trial court dismissed their claim, and the Stambovskys appealed. The opinion we read is the appellate opinion, which ruled in the Stambovskys' favor (specifically, that the Stambovskys' claim for rescission should be reinstated in the state court without them having to pay the filing fee again, which is a definite win). The parties then settled out of court: the Stambovskys paid Ackley $5,000, and she let them out of the contract.

As Colin Dayan reveals in The Law is a White Dog, cases like Stambovsky have a long history. She quotes Andreas Becker's 1700 doctoral thesis, Disputatio Juridica de Jure Spectrorum (Juridical Disputation on the Law of Ghosts), which talks about selling haunted houses in eerily similar language:
If a house is sold and the purchaser finds it haunted, can he demand a rescinding of the contract of sale? Yes, if the specters had infested the house before the sale, and he had not known it. His action would be de dolo [about trickery], and he might be aided by an actio ad redhibendum [action for recovery]. Proof of guilty knowledge on the part of the owner might be difficult, and the best means would be per delationem juramenti [by deposing an oath].
Three hundred years later, hauntings and other stigmas still have a real financial impact on the value of a house. recently conducted an online survey of more than 1,400 respondents: many would expect a discount on a haunted house, and more than a third would refuse to buy the house entirely.

For more:
Suggested soundtrack: RJD2's Ghostwriter, in honor of Justice Rubin's ghostwriting law clerk. 

Saturday, October 19, 2013

Do I have to pay the babysitter the minimum wage?

Watching other people's kids is hard. That's why I went to law school.

Image courtesy evilerin

I would much prefer to subject myself to Socratic grilling.

Despite babysitting's energy-sucking potential, some segments of the internet seem shocked and offended that babysitters expect to be paid minimum wage.

And maybe they're right to be shocked. Federal law doesn't require it.

The gap in the law is not because babysitters are often young people, although federal law does permit paying young people less. Generally, federal law permits paying employees younger than 20 a special smaller minimum wage of $4.25 an hour for their first 90 days of work with any employer. This is probably a legal relic based on the idea that the Real Wage was earned by the father and any child working was working for spending money over the summer. But babysitting is exempt even from the reduced minimum wage requirement for young workers.

Casual babysitting is exempt from minimum wage law. Under the Fair Labor Standards Act, casual babysitters and companions to the elderly or infirm are exempt from both the minimum wage and overtime pay requirements. Domestic workers are covered--those who receive at least $1,700 in 2009 in cash wages from one employer in a calendar year, or who work a total of more than eight hours a week for one or more employers.

The law has been slow to develop for full-on domestic work as well. The first state domestic workers rights bill was passed in New York in 2010. California's "Babysitter Bill" passed, but was never signed in to law.

No matter what the law says, it's important to think carefully (and broadly) about the value and cost of child, elder, and companion care. One argument is that caregivers shouldn't be paid minimum wage because "they just sit there watching TV with them." By that logic, we shouldn't pay security guards minimum wage because "all they do is sit there." Some argue against paying minimum wage because they cannot afford it. By that logic, people should be allowed to pay what they can at the grocery store.

Certainly, every family should have access to affordable child care. But the answer is not to blame caregivers asking to be paid a minimum wage for a job. Babysitting, nannying, and all forms of domestic caregiving are real jobs, and should be compensated accordingly.

Granted, there are important distinctions between casual babysitters and full-time caregivers. However, that distinction does not justify paying your neighbor $2 an hour to babysit Junior. That is not work. That is a favor. In the absence of a legal requirement, please choose to do the right thing.

Again, a reminder this is not legal advice, just information. You should talk to a lawyer for realsies if you are here for any reason that isn't idle curiosity. 

For more:

Wednesday, October 16, 2013

Are food expiration dates required by law?

Do you trust expiration dates when deciding whether to throw food away?

Image courtesy consumerist

You may not want to. There is no comprehensive nationwide requirement that food be labeled with expiration dates. A recent study from Harvard's Food Law and Policy Clinic shows us a brief history of attempts to regulate food expiration date labels. Despite efforts in the 1970s to pass a law standardizing food dating--to the tune of ten failed bills in Congress from 1973-1975--today only infant formula expiration dates are regulated by federal law.

Some states have labeling requirements, and some require grocery stores to stop selling food after the food's expiration date. Generally, expiration dates are mere manufacturer recommendations for peak quality and have little bearing on food safety. The Harvard study includes staggering statistics about the food waste generated by this piecemeal regulation as well as policy recommendations to improve the clarity and accuracy of food expiration dates.

If you're feeling brave and want to eat foods based on food safety rather than peak quality, check out this elegant infographic from Thrillist. It provides estimated time frames for how long certain foods are safe to eat after the expiration date has passed. As always, use caution! And a reminder that this blog provides neither legal nor culinary advice.

This post is dedicated to my law school roommate and a jar of capers belonging to her that I mistakenly threw away our 3L year. May they rest in peace. I publicly apologize for my role in their untimely demise.

For more:

Why don't cosmetics need FDA approval?

A common myth is that cosmetics must be approved by the FDA before being sold in the United States. Not true!

Image courtesy anythingbutstill

A little backstory about how law is quirky in America. There's a whole body of law called "administrative law" that covers federal agencies--you know, the acronym ones in Washington, DC: USDA, FCC, FTC, FAA. Congress can make laws that give federal agencies the power to regulate certain subjects. Usually, lawmaking is Congress's job, but for various reasons Congress sometimes delegates the task of regulation to federal agencies.

One of those agencies is the Food and Drug Administration (FDA). Congress passed two laws giving the FDA authority to regulate cosmetics: the Federal Food, Drug, and Cosmetic Act and the Fair Packaging and Labeling Act. A substance counts as a cosmetic if it is meant to be used as a cosmetic--the FD&C Act actually specifies "rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body" for the purposes of "cleansing, beautifying, promoting attractiveness, or altering the appearance."

Cosmetics are not quite food, not quite drugs, and do not require FDA approval before they go on the market (some coloring substances do). The FDA maintains a voluntary registration program, but cosmetics manufacturers are not required to participate.

Groups like the Environmental Working Group advocate for safer cosmetics. They maintain a cosmetics safety database that gives scores based on hazardous ingredients. When you add up the personal care products the average woman uses on a daily basis, the number of ingredients she exposes herself to is staggering.

I'm afraid to look.

For more:

Monday, October 14, 2013

Why is Christopher Columbus Day a federal holiday?

Trending this week: an elegant webcomic from Matthew Inman (of the Oatmeal) called "Columbus was awful (but this other guy was not)." Relying on A People's History of the United States, by Howard Zinn, and Lies My Teacher Told Me, by James W. Loewen, Inman's webcomic animates Columbus's rapscallion behavior--not least of which the enslavement, sexual exploitation, dismemberment, and killing of the Taino people he met--as well as Columbus Day's mundane origin. 

Inman's comic and the discussion that followed reveal how difficult it can be to find a good human hero: Inman proposes a day to celebrate Bartolom√© de las Casas, who rejected Columbus's activities--but who advocated for African slavery. Sadly, it seems as though the comic should have been titled, "Columbus was awful (and this other guy was, too)."

Image courtesy sashafatcat

Columbus Day was created by lobbyists, and recently. In the 1930s, the Knights of Columbus pressured President Franklin D. Roosevelt into federal observance of Columbus Day in honor of Christopher Columbus. The Knights of Columbus liked him because he was "a male, Catholic role model their kids could look up to." Columbus Day generated controversy even then--anti-immigrant, anti-Catholic nativists protested the holiday because Columbus was an Italian Catholic.

October 12, 1934 was the first observance recognizing the anniversary of Columbus's 1492 landing on San Salvador island in the present-day Bahamas. In 1972, President Richard Nixon established the second Monday in October as a national holiday by presidential proclamation.

Today, the law reads:
The President is requested to issue each year a proclamation—(1) designating the second Monday in October as Columbus Day;(2) calling on United States Government officials to display the flag of the United States on all Government buildings on Columbus Day; and(3) inviting the people of the United States to observe Columbus Day, in schools and churches, or other suitable places, with appropriate ceremonies that express the public sentiment befitting the anniversary of the discovery of America.
36 USC § 107.

Columbus Day is not a long-standing American tradition. It is a recent creation. Laws can be repealed and new laws can be passed. Columbus Day is an important day for many Italian Americans, but wouldn't it be great if we could honor a real Italian Catholic American hero?

States, territories, and cities offer many other options to celebrate:

For more:

Suggested soundtrack: Bonnie Tyler, Holding Out for a Hero (YouTube)

Wednesday, October 9, 2013

Why can you be alive in fact and legally dead?

On Monday, 61-year-old Donald E. Miller, Jr.  tried unsuccessfully to convince an Ohio probate court judge that he was alive.

Image courtesy zoomzoom

Miller's wife, Robin, successfully opposed his request for a change in death ruling. She says she cannot afford to repay the $26,000 in death benefits she has already received.

Apparently, Miller had been declared "legally dead" in 1994 after skipping town so that his wife could receive Social Security benefits. The limit on changing a "legally dead" declaration is three years, and Miller is out of luck.

Now Miller cannot obtain a driver's license or reinstate his cancelled Social Security number. He may need to file in federal court to challenge his legally dead ruling.

Judge Allan Davis purportedly told Miller, "We've got the obvious here. A man sitting in the courtroom, he appears to be in good health. . . I don't know where that leaves you, but you're still deceased as far as the law is concerned."

In Judge Davis's words, what a "strange, strange situation."

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Monday, October 7, 2013

Why is that rooster crowing in my neighbor's yard with impunity?

Ever wonder why that rooster is allowed to crow in your neighbor's yard with impunity?

Image courtesy
Depends on where you live.

"Rooster ordinances" are cropping up in various municipalities. As owning chickens becomes more common, so too grows the nuisance of neighborhood roosters. Some areas are adding roosters to ordinances that used to address only barking dogs.

If you have a neighborhood rooster problem, think about contacting your city council representative.

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Sunday, October 6, 2013

How are electric utility rates set?

How are your electric utility rates set?

Image courtesy lydiashiningbrightly

If you answered, "THE FREE MARKET!" you would be wrong!

The process for setting electric rates varies from state to state. Generally speaking, privately owned electric companies are highly regulated by the Federal Energy Regulatory Commission and state regulatory commissions.

In a case about whether the state of Illinois could regulate grain elevator rates, the Supreme Court held in 1876 that the government can regulate businesses involving "the public interest."

Many of the state electric regulatory commissions grew out of railroad commissions founded in the 19th century. Private electric utilities initially resisted regulation, but they changed their tune when municipal electric utilities started to spring up. By 1917, there were commissions regulating electricity in 33 states.

Today, utility ratemaking occurs in rate cases before the public utilities commission. The utility submits its financial information to the commission. The commission then analyzes how much revenue the utility company needs, then determines what a reasonable rate will be for the utility to charge consumers. A rate case is similar to a court case, with evidentiary hearings, records, and a written report and order.

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Saturday, October 5, 2013

Is that really Kona coffee you're buying? Why the law's not helping you as much as it could.

So that Kona coffee you're buying.

Image courtesy mikepetrucci.

Does the law help you know if it's legit?

A whole patchwork of antitrust, taxation, and food laws and regulations governs coffee imports. Since 1996, import marking laws have specifically exempted coffee from the requirement that a product be labeled with its country of origin.

In 1992, the Hawaiian legislature passed a law requiring that coffee sold as "Kona" coffee in Hawaii contain at least 10% of Kona coffee. Why just 10%? Blending is probably the best way for Kona coffee to get itself sold, since it is rare and expensive.

But this Hawaiian law has no effect anywhere but Hawaii. On the mainland, you could buy a coffee blend labeled "Kona" that contained exactly 0% of Kona coffee.

Or so Michael Norton, executive of Kona Kai Farms in Berkeley, CA, probably thought. For several years, Kona Kai Farms packaged an inferior blend of Central American coffees and sold it as "Kona."

In 1997, a group of Kona farmers sued Kona Kai Farms (alongside various retailers like Starbucks and Peet's who sold Kona Kai products) in a civil class action suit. The parties settled in 1999. Kona Kai Farms agreed to pay $1 million to 650 Kona growers and the retailers agreed to buy coffee from REAL Kona growers for several years. Meanwhile, the United States charged Norton with wire fraud and tax evasion. He pleaded guilty and was sentenced to 30 months in prison by a district judge.

Today, “100% Kona Coffee" and "100% Hawaiian Coffee" are registered U.S. marks with the Patent and Trademark Office.

But as to what percentage of Kona is in that coffee you're drinking? Your guess is as good as mine.

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