On a warm summer’s evenin’, on a train bound for nowhere . . . is a dispute over insuring a stranger’s life

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)


I know it is a little obvious, but I couldn't write a post about gambling without using lyrics from "The Gambler." Fortunately, the case this post discusses — Sun Life Assurance Co. of Canada v. U.S. Bank National Association — is anything but obvious. Sun Life involved gambling on another person's life but not in a Deer Hunter, Russian roulette kind of way. In Sun Life, the U.S. Court of Appeals for the Seventh Circuit addressed the enforceability of an insurance policy that insured a stranger's life.

In Sun Life, Judge Posner began his decision by discussing the common law principle that "forbids a person to own an insurance policy that insures someone else's life unless the policy owner has an insurable interest in that life." A wife can have an insurable interest in her husband's or children's lives, a creditor can have an insurable interest in a debtor's life, but "you cannot own an insurance policy on the life of a stranger who you happen to know is in poor health and likely to die soon." The reason is that, by doing so, you are essentially gambling on another person's life, and gambling contracts are generally unenforceable as a matter of public policy. 

Continue reading “On a warm summer’s evenin’, on a train bound for nowhere . . . is a dispute over insuring a stranger’s life”

Third Circuit: Neither You Nor Your Trust Have A Second Amendment Right To Own a Machine Gun (or Machinegun)

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

BillofrightsAlthough the Second Amendment is not a regular topic on this blog, the recent opinion from the US Court of Appeals for the Third Circuit in United States v. One (1) Palmetto State PA-15 Machinegun Receiver/Frame, Unknown Caliber Serial Number ("Watson") piqued my interest. That case, in addition to having one of the more cumbersome captions I have seen in a while, involved clever, albeit ultimately unsuccessful, legal arguments and a quirky grammatical/spelling issue, both of which made it "blog worthy."

First a little background about the law for the uninitiated (which included me until I read this decision). Under the National Firearms Act, before manufacturing a firearm, you have to apply for permission from the ATF. The ATF will deny the application if the firearm you intend to make would place you in violation of any law. For example, the Gun Control Act makes it, in most cases, unlawful for any "person" to "transfer or possess a machine gun," therefore the ATF would almost always deny your application to manufacture a machine gun. The Gun Control Act defines "person" as an "individual, corporation, company, association, firm, partnership, society, or joint stock company." This definition was at the heart of the debate in the Third Circuit's opinion.


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In Honor Of National Hot Dog Day . . .

Hot dog stand
For those of you who don't know (like me until a few minutes ago, thank you Twitter), today is national hot dog day. In my efforts to try to be relevant, I thought I would post something about hot dogs and the law. A Westlaw search of "hot dog" in the New Jersey database yields 51 results. Most of these cases are not terribly interesting, but one caught my eye for extolling the virtues of "peddlers" selling hot dogs on the street (known to many as "dirty water dogs").

In Brown v. City of Newark, 113 N.J. 565 (1989), the New Jersey Supreme Court was faced with the question of whether Newark's municipal peddling ordinance was constitutional. A "peddler" was defined by Newark as: "any person commonly referred to either as a peddler or hawker, who goes from place to place or from house to house by traveling on the streets and carries with him goods, wares and merchandise for the purpose of selling or delivering them to consumers . . . ." The Supreme Court noted that peddling was a legitimate occupation, but was subject to reasonable regulation. The ordinance at issue in Brown, among other things, required: (1) that peddlers move unless they were making a sale; (2) required that peddlers avoid creating nuisances; and (3) restricted the size and location of peddlers' carts. A group of peddlers challenged the ordinance. The trial court  ruled in their favor. The Appellate Division affirmed (mostly) as did the Supreme Court.

Of particular concern for us on national hot dog day, however, was the court's musing about the sale of hot dogs by peddlers:

The problem is that the municipal regulator is squeezed at both ends of the spectrum. Generally a municipality is forbidden to set aside a portion of its streets as a marketplace where space may be used by peddlers for the sale of merchandise. Even the peddler's license afforded by statutory grace to any veteran . . . does not carry with it a license to sell “refreshments or merchandise at a fixed stand.” The best that a municipality can do is oversee an uneasy alliance between competing peddlers, consumers, and the demands of the public in maintaining fixed zoning boundaries. This is no easy burden, as the “hot dog wars” of Atlantic City attest. 
Part of the reason for the regulatory stalemate is the ambivalence that we feel toward street peddlers. Many of us retain images of peddlers-past who enhanced our neighborhoods. Others enjoy the ambiance of a hot dog alfresco or savor chestnuts roasting on an urban street. Those are the pleasant aspects of peddling. The unpleasant part is that we have a sense as a community that we do not want trays of sausages and costume jewelry camped outside of our best retail stores. The problem thus requires maintaining a delicate balance between the nostalgic aspects of peddling and the intrusive aspects.
I, for one, enjoy hot dogs, al fresco and otherwise, but I am not sure I have ever thought of a dirty-water-dog, or the stand from which I purchased it, as creating "ambiance." Regardless, happy national hot dog day.