Adjunct Law Prof Blog

New In Print: Law Review Reviews

The Berkeley Technology Law Journal's Symposium 2012, issue includes the symposium "Orphan Works & Mass Digitization:  Obstacles & Opportunities."  Ms. Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office, delivered the keynote address.

The University of Richmond Law Review's March 2013, issue includes the Allen Chair Issue 2013: "Election Law: Beyond the Red, Purple and Blue."

The Yale Law Journal's May 2013, issue includes "City Unplanning," by David Schleicher (George Mason) and "Rethinking the Federal Eminent Domain Power," by WIlliam Baude (Stanford).  The issue also includes the Storrs Lecture by Cass Sunstein (Harvard) and an Essay by Amy Kapczynski (Yale) & Talha Syed (Boalt).  The Journal's April 2013, issue includes "The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy," by Jed Rubenfeld (Yale), an essay by Larissa Katz (Queen's Univ.) and a book review by Anthony V. Alfieri (Miami) & Angela Onwuachi-Willig (Iowa).  The Yale Journal of Law & the Humanities' Winter 2013 issue includes a Symposium on Living Originalism.  More to follow.

Continue reading "New In Print: Law Review Reviews"

DC Circuit Reverses Board In Campaign Threat Case

The DC Circuit holds that the NLRB lacked substantial evidence to support its conclusion that a hospital executive's comments during a union organizing campaign conveyed a threat to employees. Flagstaff Med. Ctr. Inc. v. NLRB, ___F.3d____(D.C. Cir. April 26, 2013). 

A divided Board  found that the employer's President illegally threatened employees when he told them in a campaign meeting that he would not negotiate if the union was certified. But the court found that while the President told employees he would not personally participate in negotiations, he never ruled out the possibility negotiations would occur.

The court also rejected NLRB's conclusion that the hospital fired a union supporter because of his union activity. Rather, the court concluded that there was ample proof the employee was fired for attendance problems.

Mitchell H. Rubinstein

Texas: Facebook "Friendship" Alone Does Not Require Recusal

The Fifth Circuit Court of Appeals of Texas, located in Dallas, held last week that a trial judge's undisclosed Facebook  "friendship" with the victim's father in a criminal prosecution alone does not establish grounds for recusal or disqualification.  Youkers v. State of Texas, No. 05-11-01407-CR (Tex. App. -- Dallas, May 15, 2013). 

Defendant in the case pled guilty to assault of his pregnant girlfriend and received a 10-year sentence suspended for 5-years plus a $500 fine.  Three months, later, the State filed a motion to revoke.  Defendant entered an open plea of true to the motion's allegations at the revocation hearing.   The trial judge sentenced Defendant to eight-years in the state penitentary and later denied the motion for new trial.  The Defedant argued on appeal that he was entitled to the new hearing because the judge and the victim's father were undisclosed Facebook "friends" and that the judge had received an improper ex parte message (one favorable to the Defendant) via Facebook from the victim's father prior to sentencing.

The court analyzed the case facts, applicable canons, and further applied the recent ABA Standing Comm. on Ethics & Prof. Responsibity, Formal Op. 462 (February 21, 2013) (authorizing judges to participate in social networking providing such participation complies with relevant ethics rules).  The appellate court also examined other Texas cases involving cases where judges presided in cases where the judge had a seemingly close, public relationship with a party.  For example, in Lueg v. Lueg, 976 S.W.2d 308, 311 (Tex. App--Corpus Christi 1998, pet denied), cited by the Dallas court, another intermediate appellate court held that the mere fact that a party was a former campaign manager for the judge alone was insufficient to require the judge's recusal.  The court rejected Defendant's claim of actual and apparent impartiality on the record and affirmed that ground.

Not all states agree with the approach taken by the ABA (and this Texas court) on judges using social media.  Last September, for example, the Florida appeals court held that a judge's Facebook friendship alone presents grounds for disqualification.  Domville v. State of Florida, 103 So.3d 184 (Fla.Cir. Ct. 2012) (covered by this blog here).  Florida's state judicial ethics commission had previously rendered an opinion applying a restrictive approach to social media use for judges - a different approach than the one adopted by the ABA.

The permissive approach to judicial social media use adopted by the ABA and this Texas Court requires fact-intensive analysis into the relationship between the judge and the social media friend in recusal and disqualification issues.  For this reason this issue now of first impression is one likely to be revisited frequently in states applying the ABA's permissive guidelines as more judges enter the social networking world.

Craig Estlinbaum

Campbell Law Review Call for Papers

From the Campbell Law Review website:

The Campbell Law Review is pleased to announce a call for papers for its National Edition, which will be focused broadly around Internet Law and related themes.  The Internet and associated technologies continue to evolve a pervasively networked, globalized society, creating new forces that are shaping law, society, culture, and the legal profession.

The Law Review seeks to publish papers on legal, social, cultural, and economic issues that relate to the emerging technological changes.  In particular, we seek recent essays that deal with the challenges posed and the steps that must be taken for the law to respond, now and in the future.  Representative topics include privacy law, freedom of speech, and the changing nature of the legal profession.

The call for papers includes an August 1, 2013, submission deadline for publication in Fall 2013.

Hat Tip:  SSRN Legal Scholarship Network.

Craig Estlinbaum

Morris Nichols recently published an interesting piece on the enforceability of contracts to extend the time period for the application of a statute of limitations. http://www.mnat.com/assets/htmldocuments/MorrisNichols_HeringDiVincenzo_May2013.pdf

 

Dimitry Herman

 

Supreme Court Takes Government Prayer Case

Thirty years ago in Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court held in a divided opinion that opening legislative sessions with prayer did not violate the Establishment Clause.  But can the government open such legislative sessions with prayers exclusively with one faith?  The Supreme Court will decide this question next term in Town of Greece v. Galloway.  Last May, the Second Circuit held in the case that the town's practice to begin council sessions with prayer exclusively of the Christian faith violated the Establishment Clause.  Lyle Denniston at SCOTUSblog described the key holding in the circuit court's decision to be:

The Circuit Court stressed that it was not ruling that a local government could never open its meetings with prayers or a religious invocation, nor was it adopting a specific test that would allow prayer in theory but make it impossible in reality.

What it did rule, the Circuit Court said, was that “a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion, violates the clear command of the [First Amendment's] Establishment Clause.”

It emphasized that, in the situation in Greece, New York, the overall impression of the practice was that it was dominated by Christian clergy and specific expressions of Christian beliefs, and that the town officials took no steps to try to dispel that impression.

Since the Court announced the decision to grant certiorari earlier today, the case has generated substantial buzz in the press, print and online, and promises to a significant and closely watched decision in the October 2013 term.

Craig Estlinbaum

Former Chairman Liebman Supports Senate Action on NLRB Nominees

Former NLRB Chairman Liebman recently wrote an opt ed piece calling for the Senate to take action on the 5 nominees to the NLRB. That article can be found here. Chairman Liebman states in part:

Mitchell H. Rubinstein

Employers must use the revised federal Employment Eligibility Verification Form (Form I-9) after May 7, 2013.

The U.S. Citizenship and Immigration Services, Department of Homeland Security, advises employers that after May 7, 2013*only the newly revised federal Employment Eligibility Verification Form (Form I-9)** may be used 

New York State Department of Civil Service has added Advisory Memorandum 13-1 to the State Personnel Management Manual. This Manual applies to officers and employees of the State as the employer.

Advisory Memorandum 13-1, prepared by Marc Hannibal, Special Counsel, addresses the use of the newly revised federal Employment Eligibility Verification Form (Form I-9).

N.B. With respect to I-9 Forms prepared after May 7, 2013, onlythe new March 8, 2013 version of the Form I-9 will be accepted. The form and instructions for its use is posted on the Internet at:

 http://www.uscis.gov/files/form/i-9.pdf .

Political subdivisions of the State may wish to check with the responsible local civil service commission or personnel officer concerning the processing of the Form I-9 in their respective jurisdictions.

The Department of Civil Service’s Advisory Memorandum 13-1 is set out below:

 =================

This Advisory Memorandum updates State Personnel Management Manual Advisory Memorandum #09-01, dated March 13, 2009, located in Sections 1000 and 1800. Note on both copies of the 2005 Memo that this Advisory Memorandum should be consulted.

United States Citizenship and Immigration Services (USCIS) has published a revised Employment Eligibility Verification Form I-9 for use. Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions for both employees and employers.

Effective March 8, 2013:

1. Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications.

2. Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013.

3. After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.

The revision date of the Form I-9 is printed on the lower left corner of the form.

Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.

Copies of the March 8, 2013 version of Form I-9 (including instructions) are available for download on the USCIS Web site atwww.uscis.gov.

Print copies of the March 8, 2013 version of Form I-9 for your agency’s use and destroy all blank copies of previous versions of Form I-9 in your possession. Check the USCIS Web site regularly for the latest official information and guidance.

__________________________________________

* N.B. The March 8, 2013 revised Form I-9 notes that it expires on March 31, 2016. Presumably a replacement form will be promulgated by the Department of Homeland Security prior to that date.

** Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

 

Files on Conflicts of Interest

Tyler, Texas attorney and State Bar of Texas President Buck Files has written an informative essay on conflicts of interest which appears in the April 2013 Voice for the Defense (page 15).  The essay uses the federal case U.S. v. Lopesierra-Gutierrez, No. 07-3137 (D.C. Cir. March 1, 2013) as a starting point to highlight how important it is to be mindful of conflicts when representing defendants in criminal cases - and by extension, any client in any case.  Some conflicts are waivable and some are not and knowing the difference between the to might save the practicing attorney a trip before a grievance committee a time or two.

Craig Estlinbaum

No Race To the Courthouse in Utah Adoptions

In many situations, the first to file a lawsuit in a controversy obtains procedural and sometimes substantive advantages over later filers.  The Utah Supreme Court held last week, however, that winning the race to the courthouse carries no special advantage in adoption cases.  The case is S.C. vs. Utah, No. 20120016 (Utah May 7, 2013).

In this child protection case, following termination, the foster parents filed first for adoption of the five-year old child at issue and later, a grandmother filed for adoption.  The trial court consolidated the cases then announced that the grandmother's petition would be considered only if the court denied the foster parents' petition.  The trial court then considered and granted the foster parents' petition and dismissed the grandmother's petition.  Grandmother appealed.

The Utah Supreme Court reversed the trial court, holding that the best interest of the child remained the paramount issue when competing adoption petitions were filed.  Considering the petitions in the order of filing, the Court held, created the potential for decision on grounds unrelated to the best interests.  The Court instructed that a trial court considering competing adoption petitions must hear evidence and consider each petition on the merits without giving priority to the first to file.  The best interest of the child therefore, and not filing priority, controls the final determination following the Court's unanimous decision.

In this case, the court resolved a split on the subject in Utah's intermediate courts.  One more note of interest - this case was certified under Utah law for direct appeal to the Utah Supreme Court, so there was no intermediate court opinion.

Craig Estlinbaum

Reviewing Radin's Boilerplate

ContractsProf Blog (A Member of the Law Professor Blogs Network) has been hosting a series of short reviews of Margaret Radin's new book Boilerplate: The Fine Print, Vanishing Rights and Rule of Law.  Contributions so far have been by Ethan Leib (Fordham), David Horton (UC Davis), Andrew Gold (DePaul), Theresa Amato (Citizen Works), and Peter Alces (William & Mary).  It looks like there may be more to come. 

Hat Tip:  Kim Krawiec at The Faculty Lounge

Craig Estlinbaum

New In Print: The Law Review Review

The Georgetown Journal of Gender and the Law''s Wintere 2013 issue includes their Winter Issue of Gender and Sexuality Law with articles by Seletha R. Butler (Georgia Tech College of Business), Julie Goldscheid (CUNY Law) and Jody M. Prescott (Vermont).  There is also what appears to be a potentially interesting student note titled, "Islamic Marriage Contracts as Simple Contracts Governed by Islamic Law: A Roadmap for U.S. Courts," by Emily C. Sharp.  This strikes me as a particularly timely topic and I look forward to reading the note.  One further aside on this journal - The GJGL charges for online content - content that in many instances is available free on SSRN.  I wonder how this model works for the journal.

The Harvard Civil Rights-Civil Liberties Law Review's Winter 2013 issue includes several interesting articles inc luding one near and dear to me as a state trial judge with criminal jurisdiction - "Beyond 'Life and Liberty:' The Evolving Right to Counsel," by John D. King (Washington & Lee). The key lines from the Abstract read: "This Article argues that current Sixth Amendment jurisprudence on the right to counsel has not adequately adapted to the changed realities within which misdemeanor prosecutions take place today. Because of the dramatic changes in the cultural meaning and real-life consequences of low-level convictions, there is no longer a useful or constitutionally significant line between those cases resulting in actual imprisonment and those cases not resulting in imprisonment."  Because I believe the combined effect of Padilla, Frye and Lafler will be greater judicial involvement in plea bargaining processes (but not plea bargain negotiations), contributions such as King's are valuable to gaining understanding into this "evolving" area. 

The new edition of Syracuse Law Review (Vol. 63, No. 2) includes Symposium: The Age of Social Media and It's Impact on the Law.  The symposium includes an article on judicial use of social media by Helia Garrido Hull (Barry).  I have not found the article online yet, however the title suggests Professor Hull reaches a different conclusion than I did in my essay on a similar subject published last year in the St. Mary's Journal of Legal Malpractice & Ethics.   I hope to obtain Professor Hull's article soon and my a comment further on it here.

Volume 55, No. 1, Arizona Law Review includes a collection of articles under the title "Financial Reform During the Great Recession: Dodd-Frank, Executive Compensation and the Card Act."   The issue includes articles by Lisa M. Fairfax (George Washington), Kimberly D. Krawiec (Duke), MIra Ganor (Texas) and Andrea Freeman (Hawai'i).

St. Mary's Law Review's newest issue includes "Secured Transactions History: Protecting Holmes' Notes Through the Conditional Sales Acts," by George Lee Flint, Jr. (St. Mary's).  Scholar: St. Mary's Law Review on Race and Social Justice's newest issue includes articles by Donna McKneelen (Cooley) and Chauntelle Ann Tibbals, Ph.D.

Craig Estlinbaum

Neither a judicial or quasi-judicial administrative proceeding may be conducted on a Saturday or a Sunday where such day is kept as a holy day by any party to the case

May judicial or quasi-judicial proceeding be conducted on a Sunday?

This was one of the issues raised by the petitioner in her CPLR Article 78 petition seeking to vacate the appointing authority’s disciplinary determination that resulted in her being dismissed from her position. The petitioner contended that she was impermissibly discharged from her position because one of the dates on which her disciplinary hearing was conducted was a Sunday, citing Judiciary Law §5.

Judiciary Law §5, in pertinent part, provides that: “A court shall not be opened, or transact any business on Sunday, nor shall a court transact any business on a Saturday in any case where such day is kept as a holy day by any party to the case, except to receive a verdict or discharge a jury and for the receipt by the criminal court of the city of New York or a court of special sessions of a plea of guilty and the pronouncement of sentence thereon in any case in which such court has jurisdiction.”

In rebuttal, the appointing authority argued that out of “a multiple day hearing, only one of the days was a Sunday, and therefore the proceedings cannot be held invalid.”

Supreme Court Justice Catherine M. Bartlett disagreed with the argument advanced by the appointing authority, annulling the appointing authority’s' decision and remanding the matter for “a new hearing and determination de novo in compliance with New York law Judiciary Law §5.

The court, citing Jones v E. Meadow Fire Dist., 21 AD2d 129, explained at common law no judicial act could be done on Sunday; and, in the absence of a permissive statute, a judge had no authority to hold court or to conduct a trial on Sunday.  Judiciary Law §5, said the court, was enacted as a substitute for the common-law rule. The Jones court held that “quasi-judicial proceedings such as disciplinary proceedings before a review board fall under Judiciary Law §5's auspices.”*

On a related point, Justice Bartlett also noted that the mandates of Judiciary Law §5 may not be waived by a party as §5 expresses the public policy of the State.

* In Matter of Brody [Owen], 259 App.Div. 720, the Appellate Division held that an arbitration hearing and award were both “illegal and void,” because both occurred on a Sunday and “An arbitration is a judicial proceeding and arbitrators perform a judicial function.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_23122.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

Breaking News. 3rd Circuit Follows DC Circuit By Invalidating NLRB Craig Becker Appointment

In a 102 page opinion released a majority of the 3d Cir. (Smith and Van Antwerpen) agreed with the D.C. Cir. that recess appointments can only be made during a recess between congressional sessions.  Judge Greenaway wrote a 55 page dissent.  The majority held that Craig Becker's appointment on March 27, 2010, was invalid.  The case is NLRB v. New Vista Nursing and Rehabilitation, Nos. 11-3440, 12-1027, and 12-1936.

Law Review commentary on this important topic, which will likely go to the Supremes, would be most welcome.

Mitchell H. Rubinstein

Union Release Time In The Public Sector

A court in Arizona reportedly held that police could not use release time for union representationalwork. A newspapter article describing this case is available here. The plaintiff's theory appears to be that paying public employees for union business is a gift of public funds.

I do not buy this for a minute and it is just another example of anti-union animus that some people feel. I see this as no different than wages. A union also presents order in the workforce and that provides a benefit to the public. Preventing arbitrary employer action is also in the publics interest as most labor law statutes were enacted to reduce industrial strife. Public policy supports the right to organize and bargain collectively.

Law review commentary on this important topic would be most welcome.

Mitchell H. Rubinstein

Dittfurth: Restitution in Texas

David Dittfurth's (St. Mary's) article "Restitution in Texas: Civil Liability for Unjust Enrichment" appears in the latest South Texas Law Review (Winter 2012).  On first read, I am impressed with this article, which is comprehensive and makes a valuable contribution to this often confusing and misunderstood area of law.  We cover restitution, unjust enrichment, quantum meruit and quasi-contract and other related causes of action in our Damages class and I look forward to mining this article for a better understanding myself.  As a bonus, Dittfurth includes "recent statements by the courts of forty-nine states and the District of Columbia that describe the elements of unjust enrichment" in those jurisdictions.

Craig Estlinbaum

Please Support Kidney Donation By Supporting Linda's Home Team

Linda February 2013

As many of you know, on June 29, 2011, my  then 13 year old daughter, Linda, received a Kidney transplant from a child donor who died in a tragic accident. We are forever greatful to that wonderful family.

My older daughter, Mollie as well as our entire family is very active in raising money for The New Jersey Sharing Network. The New Jersey Sharing Network facilitates organ donation and transplant and is the organization responsible for helping Linda obtain her new Kidney. 

On June 9, 2013, The New Jersey Sharing Network is sponsoring a 3 mile run and walk to help raise money for this critically important cause. The event will take place in Providence New Jersey and starts t 9 am. Information about the run/walk can be found here.

I hope that you will consider joining us on June 9th. If you cannot make it, contributions are welcome. 100% of the donations go to the N.J. Sharing Network. 

If you want to sign up to run/walk, click here.  You should click on join team in the upper right hand corner. If you cannot make it and would just like to contribute, you can make a donation on by clicking on my name and then clicking on contribute in the right hand corner. 

This is the least that we can do. And please consider indicating on your drivers license that you are willing to be an organ donor. Additional information about Linda's Home Team as well as a picture of some of the members from last year can be found on Linda's Home Team Facebook page developed by Mollie, here. 

Thank you,

Mitch Rubinstein

Supreme Judicial Court Decision Interprets Enforceability of Online Terms and Conditions

A recent decision by the Massachusetts Supreme Judicial court holds that a forum selection and limitation of liability clause is not enforceable under Massachusetts law in a browsewrap agreement.  This is an interesting opinion because it touches on a number contract law issues and estate law issues (not covered in this post) as applied to cyberspace.

The case involves the interpretation of Yahoo!'s Terms of Service (TOS) relating to its free email service. The case was brought by the administrators of the estate of a Yahoo email user to get court approval for access to the account and the content of the emails. Because the Yahoo! TOS had a forum selection clause requiring that all disputes be brought in California, the Court had the opportunity to interpret the enforceability under Massachusetts law of such clauses in online agreements. After noting that the SJC has not previously considered the enforceability of forum selection and limitation of liability clauses in online agreements, it looked to the case law on such issues in traditional paper contracts. In those cases, courts have enforced such provisions as long as they have been reasonably communicated and accepted and if, considering all the circumstances, it is reasonable to enforce the provision at issue. The burden on the first prong fall on the issuer of the TOS. On the second prong (that the TOS themselves were reasonable), in the forum selection case, the burden falls on the plaintiffs, and no such burden applies in case of a limitations provision.

Applying this standard to online agreements, the Court held that Yahoo! did not meet their burden of showing the TOS were reasonably communicated and accepted. Yahoo!'s affidavit that users were "given an opportunity to review" the TOS and Privacy Policy prior to registering" was not sufficient by itself. The Court could not infer from that affidavit that the TOS were actually displayed on the user's screen. If the user was asked to follow a link to the TOS -- which is a pretty typical user experience --- Yahoo!'s affidavit would have to have provided the specific instructions relating to the link, how prominently displayed was the link, and any other information bearing on the reasonableness of this communication.

The Court also held that Yahoo! failed in showing that the TOS were accepted. Past cases have enforced such provisions only in click-wrap agreements (where "terms of the agreement were displayed, at least in part, on the user's computer screen and the user was required to signify his or her assent by clicking 'I accept.'"), but not in browsewrap agreements (where "website terms and conditions of use are posted on the website typically as a hyperlink at the bottom of the screen."). On that basis, the Court refused to extend the enforceability to browsewrap agreements and held that the record did not show "the terms of any agreement were reasonably communicated or that they were accepted."

The Court also held that the TOS would not be enforceable against the estate adminstrators because they were not third party beneficiaries of this contract.  The Court looked to precedent from other jurisdictions on this issue, where courts have held nonsignatory third parties could be bound where the nonparty is "sufficiently closely related to a signatory that it is foreseeable that the nonsignatory will be bound."

Finally, the Court also found the forum selection clause itself to be unreasonably broad. The clause provided: "You and Yahoo agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California." The Court held that as written this provision would require a suit of any nature to be brought in California, even if it had nothing to do with the email account or the online terms.  It reasoned that this provision should not be enforced "articularly since it was contained in a consumer contract drafted unilaterally."

 

Dimitry Herman

Adjunct Law Professor of Corporate Mergers and Acquisitions

New England School of Law

 

 

 

Linda's Home Team

Linda February 2013

As many of you know, on June 29, 2011, my  then 13 year old daughter, Linda, received a Kidney transplant from a child donor who died in a tragic accident. We are forever greatful to that wonderful family.

My older daughter, Mollie as well as our entire family is very active in raising money for The New Jersey Sharing Network. The New Jersey Sharing Network facilitates organ donation and transplant and is the organization responsible for helping Linda obtain her new Kidney. 

On June 9, 2013, The New Jersey Sharing Network is sponsoring a 3 mile run and walk to help raise money for this critically important cause. The event will take place in Providence New Jersey and starts at 9 am. Information about the run/walk can be found here.

I hope that you will consider joining us on June 9th. If you cannot make it, contributions are welcome. 100% of the donations go to the N.J. Sharing Network. 

If you want to sign up to run/walk, click here.  You should click on join team in the upper right hand corner. If you cannot make it and would just like to contribute, you can make a donation on by clicking on my name and then clicking on contribute in the right hand corner. 

This is the least that we can do. And please consider indicating on your drivers license that you are willing to be an organ donor. Additional information about Linda's Home Team as well as a picture of some of the members from last year can be found on Linda's Home Team Facebook page developed by Mollie, here. 

Thank you,

Mitch Rubinstein

Fifth Circuit: Pharmacy Purchase Logs are Nontestimonial Business Records

In a divided opinion, the Fifth Circuit Court of Appeals held in United States v. Townes, No. 11-50948 (5th Cir. April 30, 2013), that a pharmacy's pseudoephedrine purchase logs were nontestimonial business records that could be admitted in a criminal prosecution without a live witness.  Pseudoephedrine is a nasal and sinus decongestant drug often sold behind the counter that, in addition to its lawful uses, can also be used to manufacture meth.

The government charged the defendant in the case with conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine.  The trial court admitted the pseudoephedrine purchase logs from the various pharmacies where the defendant purchased the drugs as business records under Rule 803(6).  The prosecution offered the records through the investiging law enforcement agent via certifying affidavits.

The applicable state law requires pharmacies to maintain records related to pseudoephedrine purchases for law enforcement purposes.  Defendant argued that for this reason, the records were not business records - records kept for a business purpose.  The majority rejected the argument, observing that the business record hearsay exception requires the records be kept in the ordinary course of business.  The majority added, "It is not uncommon for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. This does not mean those records are not kept in the ordinary course of business."  Slip Op. at 5.

Defendant also argued that admitting the logs via business record affidavit violated his Confrontation Clause rights.  The majority rejected this argument also.  Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, (2009), the Court determined that the pharmacy logs were not prepared specifically to prove a material fact at trial, but for legitimate business record-keeping purposes.

The dissenting judge would hold the pharmacy logs were not business records because the records were kept solely for law enforcement purposes and for no other legitimate business reason.  The dissent would further hold for this reason that admission by business record affidavit violated the defendant's Confrontation Clause rights.

This is an important opinion and one worth reading to study the lines separating business records, which do not raise Confrontation Clause concerns, from testimonial records, such as drug lab reports, which are testimonial for Sixth Amendment purposes.

Craig Estlinbaum