App-pendix Removal

Being an appendix is a tricky gig. At first, it may seem all cool not to have anything important to do. But if you spend enough time being blissfully unnecessary to the operation of the body, or you cause pain, you just might be sliced out of the torso and discarded like yesterday’s Kung Pao chicken. Exitus corpus.

Appendages aren’t limited to the physical body. There are societal appendages as well, like baton twirlers, kindergarten graduations, and the Vice Presidency. They serve no useful purpose, but haven’t faded away with time. Perhaps we keep them around has historical bookmarks, so the passage of time can be measured through methods more amusing than a ticking clock or flipping calendar pages.

Appendages abound in the legal world, too. Nowhere more prominently than in our language. Wherefores, Hereinafters, and Party-of-the-Second-Parts, which once dotted the plains and pleadings of the American legal landscape like so much pasture-devouring bison, are disappearing rapidly in the wake of the Plain English movement. But they aren’t on the endangered species list yet. I occasionally still see a clerk or lawyer use the phrase “Executrix,” a Victorian-era term for a female executor of one’s estate, even though I learned in law school around [*cough*] years ago that this term was already probably sexist and certainly antiquated.

But legal linguistic appendages encompass more than just the never-say-die aged variety. Lawyers also love their redundancies. And they love re-stating things. And they like repeating themselves. And they enjoy saying the same thing more than once.  This might be useful on occasion, or with contracts covering such vast human interaction that the difference between “rent” and “lease payment” matters, but lawyers have trouble choosing one and the redundancies often result from a “better safe than sorry” attitude toward contracts and pleadings. Still, that’s little comfort for the bogged-down reader.

ScreenHunter_01 May. 26 15.59
Ladies and Gentlemen, Norwegians.

Illustrating the wonderful absurdities birthed by bad legal writing, the Norwegian Consumer Council (Motto: Fighting Swede Greed Since 1978!) recently conducted a live public reading of the Terms & Conditions of Norway’s 33 most popular smart phone apps as part of its #appfail campaign. If you want to challenge your own attention span, you can watch video of the event. The entire reading clocked in at just over 31 hours 49 Minutes. Even accounting for the length of words in Norwegian–a language which seamlessly mixes Klingon, an IKEA catalog, and chemical symbols for rare earth metals–that’s a lot of reading.

Of course, the point is that most of us don’t read Terms & Conditions. We ignore them, and tech companies know we ignore them. The result is the gradual loss–albeit voluntarily–of our data and privacy. Like all unacceptable, unwanted, or unneeded appendages, marathon-length Terms & Conditions will only be cut out and discarded when their costs outweigh their benefits. Right now, the world loves its smartphone apps, so the benefits are significant.

Time will tell whether the Council’s attempts to embarrass the tech industry (and by association, the legal industry) into developing easier-to-read Terms and Conditions will have lasting change.  But the Council stresses 5 common sense ways that terms and conditions could improve:

1. Cut back on the obvious;

2. Write so that people understand;

3. Keep it short and concise;

4. Structure the text (to highlight important elements); and

5. Adopt an industry standard.

Let’s hope that all types of legal writing, not just the App Store variety, learn to follow these examples.


With Great Powerball Comes Great Responsibility

[T]he damage done by earning less interest in a savings account is minuscule compared to lottery spending and the financial risk for families that have no savings.

The Powerball is a multi-state lottery based in Florida, which I’m told is still a thing. Florida, that is. I knew Powerball was a still thing because I own several media devices which regularly dump media all over me. This week, the Powerball prize was large enough that if there had been a single winner, that winner could’ve become Batman.

Lotteries tout the contributions they make to citizens through expenditures on road construction, road signs, orange road signs, orange blinking road signs, and really big orange road signs with blinking text that drivers can read as they are driving, with helpful themes like “Don’t text and drive.” Sometimes, these signs are hacked by obnoxious teens to say obnoxious teen things like “Han Solo dies.”

In 1964, the first modern U.S. State-run lottery began in New Hampshire. Today 44 States and D.C. have lotteries, and the first multi-State lottery began in 1985. Since then we’ve learned a couple of honest-to-goodness facts about lotteries. First, poor people buy lottery tickets as a much larger percentage of their income than the middle-class. Second, lotteries really hate competition. (And not just State lotteries. Nevada’s gambling industry has successfully prevented a State-run lottery there.)

It’s easy to categorize the poor as being victimized by State-run lotteries. After all, the poor can least afford to lose discretionary income, right? But before you lament a low-income earner falling into mathematical quicksand as a result of ignorance or government predatory schemes (or both), consider the possibility that the poor are rational actors in playing the lottery. The argument goes something like this: a low-income person with a big mountain of debt who plays and loses the lottery still has a big mountain of debt. This same person who doesn’t play the lottery at all still has a big mountain of debt.  A chance of winning, however small, is the only chance of climbing atop the debt mountain. Depending on factors such as income and interest rates, this may be completely accurate. That’s not to say most poor aren’t objectively (financially) worse off for playing the lottery—they are. But lotteries would be broke if we were all objective. Humans, not calculators, buy lottery tickets.

Yep, they’re goats. In trees.

Americans also have a bad habit of not saving money. Sure, in a world where you can buy a 2016 Goats in Trees Calendar, who wants to save money?  I get it. Still, most of us know we should save more, but our national vices—including the lottery—seem to be an obstacle.

Some countries have harnessed the public’s desire to play a lottery to combat poor savings habits. The result is a Prize-Linked Savings (PLS) account. The concept is pretty simple. Suppose a regular savings account pays 3%. A PLS account pays less than 3%, maybe even nothing. But in exchange for foregoing all or part of the interest, the account owner is automatically entered into a lottery. PLS accounts have grown in popularity in the last 10 years.

Some critics of PLS accounts suggest that the cut in the interest rate hurts the poor. Would the poor be better off earning interest? Sure. Objectively.  But considering low-income household finances, the damage done by earning less interest in a savings account is minuscule compared to lottery spending and the financial risk for families that have no savings. Governments should not open candy stores and then feign shock when diabetics walk in the front doors, ignoring the “eat responsibly” signs.  Offering sugar free options might be a better response.

The PLS idea has caught on in such exotic, far off locations as Sri Lanka, Japan, and Michigan. How much does it help people save? The research of Peter Tufano, Dean at Oxford’s business school, noted that 56% of the participants in Michigan’s “Save to Win” PLS program were first-time savers.  At present, 12 states, including Indiana, do allow PLS accounts, but more states should. Even if it means fewer traffic signs.

What You Can’t Say Can Hurt You: a Penny for Your (Political) Thoughts

In a recent post, I argued that Millennials have a warped view of free speech, though it was not of their own making.  It’s due to the two headed dragon of modern First Amendment lore, one fire-breathing head to discourage political speech that is not well-regulated and controlled, and another to encourage all manner of speech once considered obscene, as the personal life-fulfillment of its author.  I’ll leave the discussion of what is legally obscene for another day.  But whether the burgeoning field of campaign finance law really has a chilling effect on free speech creates a paradox of sorts.  It’s difficult to prove but easy to recognize.  In that respect, it is reminiscent of Justice Potter Stewart’s famous quip about pornography: “I know it when I see it.”

Citizens United and Citizens United

Just as the Roe in Roe v. Wade and the Miranda in “Miranda warnings” represent actual people, Citizens United represents an actual organization.  It’s a conservative political organization, that exists, as many such groups do, for the purpose of “education, advocacy, and grass roots organization.” It existed decades before its famous Supreme Court namesake, Citizens United v. Federal Election Commission.  If you don’t recall the details of Citizens United, Wikipedia’s got your back:

The conservative lobbying group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or “BCRA”).[2] In a 5–4 decision, the Court held that portions of BCRA §203 violated the First Amendment.

Of course, it is illegal for a corporation to donate directly to a political campaign. That was not the issue in Citizens United.  At issue in Citizens was this: at what point does spending on political issues become spending on behalf of a political candidate?

Citizens United complained to the FEC that Michael Moore’s “documentary” Fahrenheit 9/11 was critical of the Bush administration and, therefore, the documentary and its ads constituted “electioneering communication” and should not have been aired within 30 days prior to an election in 2004, as such expenditures were illegal at the time.  After the FEC rejected these arguments, C.U. made its own film critical of Hillary Clinton. When the FEC took C.U. to court over its Hillary film, the case went to the U.S. Supreme Court. The FEC’s slippery attempts to draw legal distinctions between the two films illustrated the absurdity of the law it was charged with enforcing. The Court found that portions of the McCain-Feingold Act violated the First Amendment by prohibiting collective groups of people, like associations, corporations, or unions, from spending money advocating for political candidates.

Citizens unite against “Citizens United.” Before that decision, if just one of them mentioned a candidate’s name during this rally, it would probably have been illegal. I doubt they appreciate the irony.
(Photo Credit: Flickr Barryelevine)

Citizens United is a lesson in recent history wrongly recalled.  It did not allow corporations or unions to donate to political campaigns.  Nor did the decision hold that “corporations are people.” Soylent Green is people.  Corporations are not people.  However, a corporation is an association of people, and the First Amendment makes no distinction between the free speech rights of one random guy, and the rights of a hundred of his neighbors, whatever form their association may take.  If Congress or any state can distinguish between the free speech of some citizens and the lesser (back-of-the-bus?) free speech rights of others, based solely on the nature of their association, how far could it go?  The Court rightly found such distinctions inconsistent with free speech under the First Amendment.

Hello, I’m Ed.  Would you like to talk politics then be my cellmate?

Citizens United was a step in the right direction.  If you need convincing of the absurdities of the long-arm of campaign finance laws, consider the case of Ed Corsi.

Mr. Corsi started a website to discuss his political views.  Then he got together with some friends and sponsored speakers locally, and passed out flyers at the county fair.  Not that it should matter, but Corsi’s speakers only addressed public policy issues, and did not stump for individual candidates.  Records later showed that the website cost him $40 per month and he had perhaps a couple hundred dollars annually in other expenses.  According to the State of Ohio, such activities are illegal without first registering with the state and making reports as to one’s activities.  Apparently, Ed Corsi is the new face of Big Money in politics that must be rooted out if democracy is to survive.

In an op/ed piece last month in the Wall Street Journal, no less than the former chairman of the Federal Election Commission, Professor Bradley Smith, came to Corsi’s defense and lamented the absurdity of laws that put Americans in the position of risking prosecution for engaging in politics.  “Even printing yard signs or running an email list can trigger [state] requirements” he notes.  Corsi’s case, and much more, may depend on how the Supreme Court and Congress address the future of campaign finance.  Handled well, and we might restore some common sense and raise the effectiveness of political debate.  Handled badly, and the mechanisms of government will continue to suppress speech under the guise that Americans fear “big money” in politics more than the plague.

You could say that this year’s Citizens United is McCutcheon v. Federal Election Commission. It was argued on October 8, 2013 in the Supreme Court and involves a challenge to the limits of individual donations.  A decision is not expected until next year, but could come at any time.

As Professor Smith points out, 47 years ago, the Supreme Court struck down a law that prohibited newspaper editorials favoring a particular candidate on an election day, stating: “[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”

I’m sure Ed Corsi hopes that’s still true.

There’s No Justice Like Show Justice

The First Amendment isn’t what it used to be.  It used to be an integral part of the Bill of Rights.  It’s more of a slogan now.  Its common meaning, once vigorous, has been slaughtered on the altar of intellectual complacency and insipid self-gratification.  Its invocation today is more banal than brave; more ordinary than audacious.

One recent illustration of this is the opposition to Indiana’s Senate Bill 373. The bill would make it illegal for someone to take video or images of an agricultural operation without the consent of the owner. The bill would not apply to law enforcement officers.  Since the Fourth Amendment requires a warrant, the net effect of the bill is to say that only police officers (presumably for good cause shown) can enter into private agricultural property and take pictures without the permission of the owner.

By the reaction of some, including Matthew Tully of the Indy Star, you would think SB 373 protected Abu Ghraib-style secret prison abuse of animals.  Tully recently lamented the bill, arguing that it creates a society where “bad actors know they’ll be able to get away with more,” and “face less chance of public embarrassment and ridicule[.]” Of course, those playing by the rules will also face less chance of unwarranted public embarrassment and ridicule, and that’s the point the bill’s detractors are missing.  But like the proverbial hammer-wielding carpenter for whom everything begins to look like a nail, Tully suggests that the weapons of free speech – “embarrassment and ridicule” – are the most effective tools society has to combat wrongdoing.

You Tube justice pretends to be a crusader of the First Amendment, but has no patience with the Constitution as a whole.
You Tube justice pretends to be a crusader of the First Amendment, but has no patience with the Constitution.

In reality, law enforcement is both more effective and better-equipped to address most criminal behavior, including animal cruelty.  Aside from some specific exceptions, law enforcement officers must seek a warrant before entering onto private property.  This requires probable cause, shown to a judge. Only then can the alleged wrongdoer be charged with a crime, and only if guilt is proven beyond a reasonable doubt will punishment be tolerated.  These steps are rooted in protections as integral to the Constitution as the vaunted First Amendment.

But for the Über Free Speech crowd, that path is too slow and ineffective.  After all, they say, what if the system protects its own and the wrongdoer escapes the justice of the First Amendment posse?  Ask Richard Jewel, George Zimmerman, or the Duke lacrosse team about the “justice” of embarrassment and ridicule in lieu of thorough criminal investigations.

Tully even acknowledges that the bill creates an exception for those who turn the video over to law enforcement within 48 hours.  But that’s still not good enough: “So, what, we’re going to hope that the sheriff in Farmtown, Indiana, suddenly joins PETA?” he asks.  With all due respect, this question betrays the heart of the bill’s opposition.  Not only is Tully impatient with Constitutional protections that happen to reside outside of the First Amendment, he doesn’t trust elected officials in “Farmtown” to uphold their oaths of office.  (I’ve never been to Farmtown, but I’m guessing it lies somewhere outside of the commute between Carmel and downtown Indianapolis.)  A single prosecution for animal cruelty, while effective, is not sensational. It’s not You Tube-worthy.  Which means it’s dull news and not an effective fund raiser for PETA.

By the way, would Tully’s boss object to a broadcasted hidden video of the goings-on of the editorial boardroom of the Indianapolis Star?  Of course he would. Hidden video is only a noble cause when it finds wrongdoing.  All of the hidden video that is taken and unused–or worse, falls in the hands of competitors–doesn’t catch bad behavior at all. It erodes private property rights.

4 Ways Brick-and-Mortar Can Turn the Tables on Amazon

In 1993, if a customer strolled into a discount retail store like K-Mart, talking on a cell phone – err, mobile phone, it would likely have drawn some glances. A global positioning system device, would’ve caused some raised eyebrows. What about a camera recording video and audio and a catalog of all of K-Mart’s competitors’ offerings and prices? It would probably have gotten the shopper tossed out.

But thanks to smart phones you’re more likely to see Bluetooth devices than blue light specials in the retail world today. And banning smart phones in the retail world because they can record video is about as pointless as banning the recording of concerts (it’s still illegal) or traffic stops (it’s never was illegal). But the use of barcode-reading smart phone apps goes beyond privacy concerns, or simply annoyance. It’s created a real battleground between new and traditional sales, between internet retailers and traditional brick-and-mortar business.

Amazon mobile barcode scanning
Amazon mobile barcode scanning

Looking at Amazon as the prototype for this conflict, I have to confess that I use Amazon on a pretty regular basis. I purchase many items on Amazon that are standardized, where price is the key trait, such as K-Cups for a Keurig coffee maker. But I shy away from buying shoes online for fear of having to return them because the fit isn’t quite right. I suspect that these traits are typical. Amazon knows this as well. The online retail giant makes it easy to search for items by lowest price, and they have come a long way in taking the hassle out of their return policy. But if my experience is typical, it illustrates the pattern in the tug of war between retailers and e-tailers: Product Differentiation and Product Customization.

Product Differentiation is one of the driving forces of market innovation and causes consumers to pay a premium. Strictly speaking, the economist would say that a cheeseburger and a Big Mac are substitute goods, but there is enough difference between them that some consumers will pay more for Big Macs. Product Customization is the degree that any particular product must be customized to the consumer. Clothes, wood decks, and gold teeth are rarely “one size fits all” items. Amazon thrives on low product differentiation and low customization.

Traditional retailers tend to hold more sway with consumers when products differ from the competition or must be custom-made or custom-fit for the consumer.


Though Amazon has dominated low-price and non-customized goods, these market forces create a door that swings both ways. Bar code scanning apps have been around since at least 2008. If you haven’t used bar code scanners for smart phones, here’s how the process works. After downloading an app, such as Amazon’s iPhone app, a shopper enters a store and notices that a bottle of Dr McGillicuddy’s Root Beer Schnapps sells for $18.99. Pulling out his trusty iPhone app, the shopper uses the phone’s camera to scan the bar code on the item. Voilà! Like so much cyber-shopping magic, Amazon tells the shopper that the same item sells on for just $16.99. This discriminating shopper – though apparently an indiscriminate drinker – can save two whole dollars on his upscale liquor, which he will undoubtedly apply to the rental of an Adam Sandler film.

Early in the roll-out of these apps, retailers lamented the use of their expensive floor space as a mere showroom for e-tailers like Amazon. Some even tried to enact store policies to prevent customers from using the apps – a step doomed to send customers out of the store entirely. Since then many retailers have used QR codes, which use nearly identical technology.

QR is Usually Lazy Junk Mail
QR is Usually Lazy Junk Mail

Most QR code promotions do little more than take the consumer to a promotional website. I have never seen a QR code used effectively to influence a discrete point-of-purchase decision. QR Codes might have longevity with the extreme couponing crowd, but that’s about it.

However, the very features that make Amazon flock to give its users convenience can – and in some cases already do — help retailers compete with Amazon. There are ways for brick and mortar businesses to leverage smart phone technology.

1. Consumer Education. Imagine a consumer shopping for a new camera lens for his Nikon digital SLR. He starts online: he reads about the specs, he searches reviews of users, he browses photography websites to see what images can be captured. By the time he makes his decision to buy, he already understands more about the lens than the blue shirt kid at Best Buy who was probably just going to read the back of the box anyway. As a result, whether he buys at Best Buy or at Amazon, he doesn’t take the time of a Best Buy associate that he would have taken 20 years ago. He’s not asking product questions, waiting for the blue shirt to get his supervisor to answer the questions, and following up with warranty questions. So even though Amazon may take the sale in the end, there will be many sales that Best Buy keeps – and many of these have higher margins because Best Buy will need fewer blue shirts in the long run, driving down its cost. In a sense, Amazon – and the internet in general — has underwritten the cost of informing consumers.

2. Wish List Illustrations. This Amazon feature, now copied by many other retailer apps, allows consumers to build multiple lists for future shopping and save items to quickly review at a later time, without beginning a search anew (i.e., Christmas List, Accessories for My 1989 Chevy Nova, or Things to Send to My Secret Family in Guatemala, etc.) Consumers can access these lists through Amazon’s smart phone app. Like any shopping list, the retailer benefits because the more things that a shopper remembers she needs, the more things she will buy. If the shopper is glancing at the list while in Walmart, then Walmart will make sales thanks to this technology. But the list can also be shared. That means anybody can highlight the prices of a handful of items on Amazon and create a link to the web page of that list. A creative brick and mortar retailer could use the scanning feature of a smart phone to feature a weekly list at the front door that shows shoppers: “Items that Will Cost You More on” with a QR code that takes the shopper to a list of a half-dozen or so items on Amazon’s own mobile website that are more expensive than the retailer’s prices.

3. Shipping Awareness. On both its mobile and standard websites, Amazon has successfully delayed the reality of shipping costs until the end of the online purchasing process. This obscures the cost for consumers, who don’t always accurately account for the increase that shipping costs add to a purchase. Others don’t read the fine print about which items might arrive in a few days and which might take longer. Advantage: Amazon. But once again, retailers can use Amazon’s own information in the battle for the consumer mind. A retailer could identify 10 items in the store that it thinks would be the target of Amazon’s barcode-scanning app and post a display: ships this item from its warehouse in Hoboken, N.J. USPS Ground Shipping for this item will take about 5 days and cost you an additional $8.00.

4. Mom and Pop Guilt. I’ve always thought that “Shop Local” campaigns were a bit of a mixed bag. Setting aside that the second word really should be an adverb – i.e., Shop Locally, I’m never quite sure about the attitude behind the phrase. Is that Shop Local “because we have quality goods at reasonable prices and it’s convenient”? Or Shop Local “because if you don’t you’re putting your neighbor out of work, you monster”? Either way, most consumers have a perception of responsibility to the local economy. Amazon does not. So what technology can press this advantage?

  • Groupon and LivingSocial provide financial incentives for consumers and retailers.
  • Yelp allows retailers to respond to consumer reviews.
  • Twitter is a direct consumer pipeline, but consumers have to know why to follow you. After all, nobody ever willing volunteered to get junk mail. Like the dead neighbor’s cat, it just starts showing up.
  • And yes, Facebook. While its popularity with the 18-25 set is declining, the coupon-cutting, cost-conscious consumer with a mild case of Shop Local isn’t in the 18-25 age group. By all means, have a Facebook account. But balance the promotional stuff with useful community-driven information. Congratulate the local little league team you sponsored, or remind your FB friends to change their clocks when Daylight Savings time starts again. It’s not enough just to remind consumers that you are local. You have to remind them why that matters.

Then again, there’s no guarantee that a mom and pop store holds sway with consumers:

“What’s so great about a mom and pop store? Let me tell you something, if my mom and pop ran a store I wouldn’t shop there.”
– George Costanza

The Digital Estate of Confusion

The phrase “Digital Estate” has evolved to include all manner of information and assets, stored locally and online. But you don’t need to have a Ph.D. in Nerdology or drift into an electron-induced coma when the subject of digital assets comes up. The basics are pretty simple.

Dude, Wheres my Digital Estate?

If you’re like me, you use a computer, a tablet, or a smart phone to do just about everything – save and edit pictures, take notes, keep a calendar, communicate with family and friends through email and social media, and research important issues such as how curling became a bona fide sport.

These “digital assets” make up an increasingly larger portion of our stuff. Many of these have value to me and perhaps to my family – such as my Flickr or Facebook account. Some are personal financial records kept on Dropbox, Evernote, iCloud, or any other online storage management system. Others are not online but saved on a hard drive or thumb drive at home. The value of these assets varies widely. While a carefully photoshopped image of Ruth Bader Ginsburg at Sturgis, or the much-coveted Nixon Meets Elvis photo might not be much of a financial investment, how much have I paid to iTunes in the last five years? What about an online store presence on eBay?

The Odd Life of Timothys Green E-book Collection.

Today, physical assets still outpace electronic-only versions for most Americans. Consumers who spend money on music downloads spend on average $13.31 monthly, compared with $17.94 on CDs. In a typical month, consumers who purchase e-books on their mobile devices spend an average of $15.34, compared with $20.23 on paperbacks.

Suppose a 30 year-old music lover has been buying digital and CD music, and e-books and paperbacks for 5 years at these rates. If he continues to spend at these rates, and if prices of CDs and digital music never increase, his purchases would follow this chart, roughly.Image

When this prodigious purchaser is 70 years old, he’ll have nearly $20,000 in digital assets of just music and e-books. Of course, if he gradually buys more digital content, and fewer CDs and paperbacks, that amount would only increase. Most people will want to find ways to protect these assets, and will increasingly demand methods to convey these to their heirs.

License to Illegally transfer your music?

The biggest difference between your weird uncle’s collection of classic rock LPs and your iTunes account is that an LP, cassette tape, or CD allowed for the ownership of a physical medium. While Uncle Shamus’s purchase of Rush: Roll the Bones never entitled him to sell tickets for his friends to listen to the Canadian Power Trio in Grandma’s house – hey, he was a visionary– it did allow him to pass the LP to you in his will.

But iTunes and other digital stores are a bit different. My purchases in iTunes are merely a license. Presently, iTunes does NOT permit any type of transfer. I cannot, consistent with terms of use of my license with iTunes, sell or give you my right to use the music I have downloaded. Without an exception for my probate estate–which does not presently exist–I can’t give it to anyone when I die, either. That might seem unfair, after all, I “own” it. But ownership is a nebulous thing in the world of licenses. So, sadly, that e-copy of the Telly Savalas autobiography cannot be passed onto my beneficiaries. Not legally anyway. It’s toast. But take heart — at least you can still pass on the Kojak VHS tapes collecting dust in the back of your closet. Who loves you, baby?

Hey, You, Get Off of My Cloud-Based Storage Service.

Whatever you might think of online or cloud-based services, they are here to stay. Fortunately for Hoosiers, Indiana allows for the executor of an estate to demand access to any electronically-stored information upon showing of a death certificate or court order. See Ind. Code § 29-1-13-1.1. But rather than have your family wait months after sending formal legal papers to a multinational corporation, only to have the request land on the desk of the Vice President in Charge of Making it Impossible for Regular People to Access Our Server Farms, I suggest a simpler approach. Write down all your passwords. On paper. With ink. Keep a copy with your will. That way, your executor does not have to find the Rosetta Stone to your passwords.

Facebook, Twitter, and other social networking sites have developed policies for dealing with a deceased account holder. Each can delete an account entirely, with proper documentation. While it’s hard to think that when I’m gone, my family will want to preserve all my zinger-tweets made during the Rachel Maddow Show (“Up next, @RachelMaddow fights @Voldemort in the Chamber of Secrets!”), it could happen.

Besides deletion, Facebook also allows you to “Memorialize” an account to allow it to live on but without future changes or updates. I cannot be the only person to think that it’s incredibly creepy to contemplate my Facebook profile living on when I’m gone. Will my timeline continue to register my activity in eternity? Maybe it will. At least then we’ll all know that Mitch Albom is a liar.


Five Ideas About Contracts that are Just Plain Wrong.

Most contract disputes are between honest people with botched expectations.

Contracts come in all varieties: leases, purchases, employment, options, licensing, construction, and just about every other kind you could imagine.  Sometimes the proliferation of contractual agreements threatens to be an avalanche on our senses and we shut them out. We’ve all had our eyes glaze over as when scrolled through a EULA (End User License Agreement) when we installed software, or skipped over the fine print of our credit card agreement.  But as sigh-inducing as contracts can be, we know that, deep down, we need them. However, some misconceptions get handed down through families like holiday fruitcake or tacky Elvis snow globes.  Here are my five favorite contract myths, in no particular order.

1.  It’s always important to get a contract notarized.  I’m always amazed by the magical influence of a notary stamp.  The public at large gives it more respect than copyright claims or speeding signs, which are arguably more important.  Perhaps because it is a rare formality in a world that is brazenly familiar and informal, a notary stamp holds a special place in people’s minds. To the public, there is a mystic quality to a notary stamp that transforms any cocktail napkin-scribbling into the Magna Carta.  In truth, there are usually only two reasons why a contract might have a notary stamp: (1) To prove it was signed, or (2) because a special statute or other law requires it for the type of contract.  It’s more common to require a notary stamp on government forms than on contracts between individuals, but mostly because the government just doesn’t trust you. (See reason #1).  Although it’s hard to think of a situation where a notary would harm a contract, it’s not required as often as you might think.

2.  All oral contracts are invalid.  As a general rule, oral contracts are just as valid as written contracts.

3.  All oral contracts are valid.  Well, rules are made to be broken.  Written ones–contracts, not rules–definitely help prove the existence of the contract.  The exception to the “oral contracts are perfectly valid” statement is when the state specifies some types of contracts which must be in writing to be valid.  These include contracts for the sale of real estate, contracts for the sale of anything over $500, and others. The collection of these special types of contracts is called the “Statute of Frauds,” which unfortunately for logical, clear-headed types, has almost nothing to do with fraud.

4.  Both sides must meet with an attorney to make the contract valid.  While an ounce of prevention is worth a pound of cure, having an attorney (or not) does not influence of validity of the contract.  Some special contracts, like prenuptial agreements, have been thrown out by courts if it was determined that one side was pressured into signing it.  Part of a court’s examination of that pressure might include finding out if both sides had a chance to meet with attorneys and discuss the contract.  But this goes to whether each side really signed it voluntarily, not whether the language was more or less enforceable.  You’re a grown up.  Put on your big boy pants and realize that you’re responsible for your own contracts.  If you don’t understand something, ask before you sign it.

5.  Legal contracts are for people who don’t keep their word.  Only a dishonest man, the thinking goes, would not take another man at his word.  First, this is bogus because it presumes that contract disputes only happen between dishonest people. Or one honest person and one scoundrel.  I disagree.  Most contract disputes are between honest people with botched expectations. Contracts help prevent disputes by focusing expectations–written contracts even more so.  If honesty is the prize, let’s be honest enough to know that we all make mistakes, we are forgetful, and we are capable of misunderstandings and miscommunications.  In fact, it’s the scoundrel who will shy away from being held accountable.

These are the tip of the iceberg.  Most of these myths show either too much or too little trust in legal formalities.  Formalities, from the king’s seal of ancient times to the modern notary stamp, existed to verify the truth of the document, not to create the document.  At the core of every contract is the intent of the parties.  So, “don’t sign anything you don’t understand,” might not be such a bad cliché after all.

Duck, Duck, Goose.

According to Aesop’s fable The Goose that Laid the Golden Eggs:

“A cottager and his wife had a Hen that laid a golden egg every day. They supposed that the Hen must contain a great lump of gold in its inside, and in order to get the gold they killed it. Having done so, they found to their surprise that the Hen differed in no respect from their other hens. The foolish pair, thus hoping to become rich all at once, deprived themselves of the gain of which they were assured day by day.”

Like that bullion birthing bird (!), America’s small businesses lifted up the middle class and made it the envy of the world in the twentieth century, paying off day by day, year by year in the form of a stable economy, reliable jobs, high consumer confidence, and even a reliable tax base.  However, supposing that increasing regulation, taxes, and fees can continue to be put upon the backs of small businesses without consequences is foolishness.  Not only will more existing businesses fail, but the spark of invention, accomplishment and risk-taking necessary for the incubation of a new business might never happen — the unseen casualty of discouragement brought on by the perception (often correct) that the hurdles are just too high.

Few things are more discouraging to would-be entrepreneurs than the morass of regulations by bureaucrats, vested interests, and rule making do-gooders.  This video from the Institute for Justice is a great illustration.

The webs that entangle small business will only get swept away when regulators, legislators, and the public stop passing laws that are perceived as “a good idea” and reserve the intractable hand of the state for those issues in which its involvement is an absolute necessity.  Only then can we loosen the choke hold on the goose laying the golden eggs.

Everybody Counts. Well, at Least They Used to.

Child: But I’ll never use this stupid math as long as I live!

Parent: Of course you will, I use complicated math every day.

Child: [waiting patiently for example]. . . Then why do I –

Parent: Because I said so that’s why!

And just like that, discussion over. The because-I-said-so trump card comes down and all other answers no longer matter. No explanation and no proof. Trump cards are great that way. No more discussion, argument, or measuring who has the better persuasion. Game over.

Last week, the Indiana Supreme Court helped us answer this question of longstanding parental rhetorical brinksmanship, but it didn’t involve trump cards:

Q: So, what exactly can I do to with math when I grow up?

A: Here’s what you can’t do. You can’t count cards in Indiana Casinos.

This was arguably the only really interesting thing ever done with math, and now it’s gone. That sound you hear is the flicker of interest that your children may have in mathematics being snuffed out. As a kid, when I first found out that some people actually make a living playing blackjack, I though it was a bona fide superpower — like X-Ray vision.

Nobody loses the mortgage playing Uno.In Thomas P. Donovan v. Grant Victoria Casino & Resort, L.P, decided on September 30, 2010, the Indiana Supreme Court said that Donovan could be kicked out of a casino for counting cards. There is a long-standing common law right of a business to refuse service to anyone, but the Court of Appeals had agreed with Donovan, who argued that casinos are so heavily regulated that they shouldn’t refuse anybody.

In part, this argument likens casinos to utility companies that are given geographic pseudo-monopolies. Casinos are given an unencumbered license that protects them from most forms of competition. That degree of license comes with much regulation both of the operation of a casino and of the game of blackjack in particular, and should, the argument follows, prohibit exclusion of any individual.

But the Supreme Court was not convinced. It found that the law that regulated casinos was not designed to replace the common law right to exclude a patron from a business. So much for superpowers.