Blog Ipsa Loquitur

Fresh off the testgasm known as the New York Bar Exam, I’m visiting my folks in the Deep South: Atlanta. Everyone’s unflappably friendly here, but I’m convinced they’re secretly trying to kill me with pulled pork and racks of barbecued ribs. The thing is, the folks down here don’t pretend this stuff is even remotely healthy. They just let the food speak for itself.

As far as I can tell, three pounds of slow-cooked porcine perfection doesn’t scream “healthy choice.” There’s something to be said for letting me make up my mind about whether I want to live to see 40.

Now, this Vitamin Water stuff, that’s a pig of a whole different color. There’s an article on the Huffington Post about a recent lawsuit against Coca-Cola over false advertising for Vitamin Water. John Robbins completely misses the boat by calling Coca-Cola’s defense “a staggering feat of twisted logic,” when it’s actually a perfectly mundane and unremarkable legal defense. To explain, it’s best to start at the beginning.

Sugar Water

Coca-Cola is a company that sells sugar water. The success of Coca-Cola’s sugar water is based on their superior ratios of sugar to water, or ancient gypsy magicks, or something. I don’t know. For whatever reason, Coca-Cola’s sugary water drinks are wildly successful.

One of these successful sugar water drinks is called Vitamin Water. Someone is suing Coca-Cola for making unwarranted health claims about Vitamin Water; specifically, that the sugary water called “Vitamin Water” is not as healthy as it sounds. Coca-Cola has actually spent a lot of money marketing Vitamin Water as a healthy drink; this is presumably a less laughable claim when your principal product doubles as chrome polish.

If you’re Coca-Cola, there are a couple of ways to fight off a false advertising lawsuit.

The Boring Way

The first way is to disprove the elements of false advertising. This brings into issue both (1) what you say and (2) what is objectively true about your product. Assuming you could quickly settle what was said and what your ad campaign meant (hint: this will take forever and your legal fees will bankrupt you), you’d still have to argue about whether or not it was true.

So, once the lawyers are done quibbling, the scientists would go back and forth with clinical tests of sugary water on rats, and the jury would claw their own eyes out in a desperate attempt to cause a mistrial and earn their freedom. This is the way grownups with more lawyers than common sense settle their disputes.

Dear Reader, this is not the Almost Legally way.

The Fun Way

No, the fun way to defend yourself in a false advertising lawsuit is to stand your ground, concede points 1 & 2 above, and cry “puffery!” An advertiser can acknowledge that they made false claims about their product, but no reasonable person would ever believe these claims. At first, this seems like it wouldn’t be a great defense to lying about your product.

But that all depends on why we care about advertising in the first place. There’s a nice essay on the free market’s reliance on the truth in advertising on the FTC website. It explains the rationale behind regulating advertising in the first place.

Without getting too philosophical, capitalism hinges in part on people knowing which product is best for them. If advertising is allowed to flat-out lie, the consumer search costs required to find the right product create an incentive for producers to spend more time (falsely) advertising than creating good products.

If we accept this justification for promoting truth in advertising, then puffery is the free market equivalent of “no harm, no foul.” You need to use the magic words: “no consumer could reasonably believe” your claims. If only an idiot would believe your claims, then who cares if it’s not true? Your lies have not added to the reasonable consumer’s search costs.

Puffery isn’t a good defense to slight stretchings of the truth, though. If you’re going to claim puffery against false advertising lawsuits, go big or go home. This is a lot of fun if you’re a lawyer: tell your client to make their claims more outlandish. Axe Body Spray has turned this into a sport. Joe Isuzu was a golden god of puffery. Pretty much every beer commercial ever does this. Any ad claiming that MLS is watchable (zing!) is puffery in extremis.

The Upshot

So what John Robbins seems to take as some bizarre, mind-bending, reverse double-secret corporate conspiratorial psychology is really a pretty straightforward legal principle. Puffery is the best thing ever. Hell, if you don’t believe me, read The Best Puffery Article Ever. It’s a wonderful essay on puffery that’s not worth summarizing because you should read the entirety.

Robbins takes this opportunity to rail (rightly, I think) against the adverse effects of drinking lots of sugar water, but he touches on the actual issue only once and briefly:

I guess that’s why they spend hundreds of millions of dollars advertising the product, saying it will keep you “healthy as a horse,” and will bring about a “healthy state of physical and mental well-being.”

I agree with this point. This is a good point. This is where an insightful criticism of Coca-Cola’s defense would begin. Coca-Cola’s advertisements about Vitamin Water probably aren’t so fantastical that you or I would be foolish to believe them. But instead of exploring whether Coca-Cola’s advertisements rise to the level of absurdity needed to be puffery, Robbins complains:

  1. About the fact that you could buy the vitamins in a bottle of Vitamin Water for a penny. (The profit margins on vitamin-enriched sugar water are as outrageous as the profit margins on regular sugar water.)

  2. That this kind of sugar water has so much sugar in it that it should properly be classified as a different kind of sugar water: soda.

  3. That the overall obesity rate in America is depressingly high, and liquid calories constitute a depressing amount of our caloric intake. (I agree with both points, but Robbins fails to connect the American overconsumption of sugar water and our rising obesity rates with any false advertisements about any sugar water.)

  4. That Vitamin Water advertised on that Lebron James show.

  5. That the Lebron show was so popular. (I mean, I agree, but this really doesn’t have anything to do with anything. This smacks of heavy-handed SEO, like that time I wrote an article about fake Rolex watches and penis-enlarging pills.)

  6. That people ought to just drink water instead of sugar water, and that there are many ways to make water taste like things that are not water by adding things that are not water to water.

I agree with Robbins fundamentally; drinking sugar water all the time is silly, and I think there’s a very good chance that Coca-Cola’s ads are false advertising. I think that he and I are on the same team here: let’s drink less sugar water, and more water water. But this article is wildly ignorant of one of the fundamental principles of advertising law; to claim that Coca-Cola is employing some ineffable legal voodoo in its defense is flat wrong. Puffery is not new.

Filed on under The News

Some dearly deserved congratulations are in order.

First, congratulations to all the people who took the bar exam this week. Ideally, you found it relatively smooth sailing after a summer spent thrashing about in the water like a wounded seal. (You can mix your metaphors if they’re all maritime terms, right?)

Congratulations to the people who care about this newest batch of law school graduates — you may now have your loved ones back. Ideally, this will be welcome news.

Congratulations to the bar review companies, because I’m sure you’re all rolling around on your giant piles of money like Scrooge McDuck after another crop of law students begged you to take their remaining money and watch your DVDs. Kudos.

And lastly, congratulations to the New York State Board of Bar Examiney Goodness. Here’s to the continued success of the lawyer’s club, chaps!

all you've taught me

Filed on under A Day in the Life

Well, that could have gone worse. I don’t know how much I wrote, but my hand feels like it’s going to fall off.

Additionally, I have to keep this bracelet on until tomorrow when the test is done. Now I know how all those gazelles on National Geographic feel.

Filed on under A Day in the Life

Today, I finished my bar review class. Forty sessions combining in 175 hours of in-class instruction, and probably nearly twice that outside of class. I now have two weeks to go before the bar exam. (13 days, 17 hours, 10 minutes, and so on. But who’s counting?)

To mark the occasion, I’d like to answer a questions I received on twitter from a Miss Beans:

(1) How much do you regret the bar classes you didn’t take in school?

(2) do you feel comfortable w/what you learned in [review]?

Without knowing what the bar exam proper is like, I’ll give this a shot.

(I haven’t re-written or edited this, so I must apologize for the sloppiness of what follows. I’m slightly pressed for time, and I ramble terribly.)

First, I think it’s important to get some context. In law school, I did not take New York Practice, Wills & Trusts, Family Law, or Criminal Procedure. These are really the only bar subjects that I didn’t cover on their own or as part of a larger class. My school mandates (what I assume are) the traditional first year classes:

  • Contracts
  • Civil Procedure
  • Torts
  • Criminal Law
  • Property

As well as required second-year classes in Constitutional Law and Evidence, I took Corporations (which included agency) and a class on the UCC (sales and negotiable instruments).

That being said, my last semester of law school, I took a class taught by a former instructor of a bar review course, called “New York Law in National Perspectives.” It covered eight subjects, including Wills & Trusts and Criminal Procedure. The class was intended to be a survey course of popular bar exam topics, and give students a chance to dip a toe into the whole “bar review” grind before the real deal begins.

So, to answer (1), I don’t really regret not taking certain bar subjects in school. I think part of that was my luck in attending a school with a bar review prep class. But part of that is because by the time you’re a graduate, you’re good at picking up legal theories quickly. There’s an internal logic to the law, and while you may not have been quite so bad at sussing it out as I was as a 1L, the fact remains that as a J.D., you pick up on it very quickly. Specifically:

Wills & Trusts was covered in my bar review prep class: it’s mostly straightforward, but there are some areas where I’ve done some extra work to keep my head above water. I don’t know that it would have been worth a 14 weeks of my life to get that extra time to spend with the material, to be honest.

Family Law wasn’t covered in my prep class, but I think this is even more straightforward. Perhaps my ignorance just glosses over the topic, but I think that while there are lots of rules (aren’t there always?) none of them seem to descend into a thicket of legal esotericism the way Freehold Estates do for me. Seriously, screw Fee Simples Subject to Conditions Subsequent(s?).

And New York Practice is the term at my school for NY’s civil procedure: statute of limitations, pleadings, motions, defenses, jurisdiction, venues, etc. There’s almost no legal reasoning required here, just memorization of rules and tests. This is the sort of meta-law for which index cards are sold in bulk. I think it’s a waste of time to take it before your last semester of law school, when the scarce few complex areas of NY Practice might still be fresh in your mind.

Really, I really don’t think I missed enough of any of these subjects to hurt me on the exam. And I don’t plan to practice in either of the two substantive areas of law, so the fact that I haven’t spent time in a classroom wrangling the doctrine for myself isn’t inhibitive.

I suppose if you somehow knew you had some strange mental block with regards to Corporations or Wills, you should get as much exposure to it beforehand. Maybe Evidence, because hearsay may drive you batty if you don’t spend a good month or two on it. But really, the bar review guys are very good at what they do (and hell, for $3k a head, they’d better be!), and you’re very good at what you do by the time you’ve finished six semesters of law school.

So, with regard to question (2), bar review class is a little too much like first semester’s exam week all over again. On the one hand, you know you’re all in the same situation, and everyone’s rather nonplussed. On the other hand, this is of no comfort at all, because you’ve just finished drinking from the fire hydrant. Trying to soak it all up on your first go is impossible, and you’ll have to spend a lot of time afterwards trying to mop up the bits that bounced off the outside of your head.

Bar review is different, obviously, in that now it’s not the grasping of legal principles that’s tricky, but the retaining of thousands of legal principles. In theory, I’m comfortable with any of these laws I’ve learned. You know, a few at a time. The novelty here is retaining nearly as much information as you learned in all six semesters combined, and being able to cogently spit it out on command.

I worked hard, I stayed in on weekends, and I kept up with what the class was doing. I did the homework problems, I’ve reviewed my wrong answers, and I made sure that I wasn’t saving a mountain of work until the end. There’s just no way to cram for twenty subjects at once: you have to keep up a steady pace all summer.

Even so, immediately after the hydrant (the class) has shut off, I feel bewildered. I’ve been doing my best to keep up on past subjects while learning new ones, and that’s just damn hard. If you never studied for two (or three!) exams at once in law school, you should do it at least one semester. Seriously. Compartmentalizing that much information all at once is a skill, and I don’t think bar review should be the first time you try it.

Overall, I’m pretty comfortable with what I learned in bar review class. Not right now, though. I take comfort in the fact that I have fourteen days to re-read my notes when no one is throwing new notes at me. I can focus and start to compartmentalize, and I feel pretty good about where I’ll be in fourteen days. Again, none of this stuff is impossible, and some of it is downright easy after spending all that time in law school, but it’s the combination that’s tricky.

I hope that at some point in my rambling, incoherent response I was even close to anything that could be considered a rational thought, and that everyone in this room is now dumber for having listened to it.

Filed on under A Day in the Life

From my lecture on how property is distributed in a divorce:

Once separate property is co-mingled with marital property, then under the Transmutation Theory…</blockquote>

You know, back in my day, we didn’t have Harry Potter jokes. Wizard humor revolved around Dungeons and Dragons, and that’s the way we liked it.

Filed on under A Day in the Life

This question is based upon the case of Kleppe v. New Mexico, 426 U.S. 529 (1976), where the Court upheld the power of Congress to protect wild burros under the federal Property Power.

That’s damn fine coffee you got here in Twin Peaks.

Filed on under A Day in the Life