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I am a member of the New York bar, though I live and work in the Los Angeles area.

I want to issue a challenge to my fellow lawyers out there.

As seen on this feed (now apparently on a repeat loop), thousands of non-violent protesters who were trying to cross the Brooklyn Bridge on foot are now being arrested, cooperatively and one-by-one, by black-shirted police led by their white-shirted supervisors.

These protesters are tremendous and profound faith in our justice system.  They are not fighting by hand, they are willing to fight in court.  It's one of the most impressive things that I've seen in U.S. protest.

Is their faith justified, fellow lawyers?  That is for us to determine.

I offer this diary as a place for lawyers -- in New York, admitted to the New York Bar but not present in New York, or not admitted in New York -- to discuss and plan how we officers of the court will react, what we can do to help.

Nothing presented here by anyone (absent a clear statement to the contrary by its author) is intended as legal advice or a solicitation of specific legal assistance.  But -- that may come of this.

I know that there's a crawl on the Livefeed saying that people can call the National Lawyer's Guild for help.  My guess is that they're swamped.  Let's figure out how we can help.  (And, of course, anyone can donate to the NLG, any legitimate OWS fund, the ACLU or elsewhere.

The People, Represented, Will Never Be Convicted!

The Brooklyn Bridge holds a special place in the education of law students because it is the site of a famous hypothetical (question) in which we learn about "unilateral contracts."

A unilateral contract is one in which the offeror is bargaining for a completed performance. For example an offer of a reward to catch a fugitive (or a fish) is an offer that looks towards the formation of a unilateral contract. A bilateral contract is one inwhich the offeror is bargaining for a promise to perform. Most contracts which have commercial significance are bilateral.

The Brooklyn Bridge hypothetical has been a favorite of Contracts professors ever since it was introduced by Professor Rene Wormser. Typically the hypo goes like this: "A promises B $100 if the latter will walk across the Brooklyn Bridge." Is A bargaining for B's promise to walk across the bridge or is he bargaining for actual performance, i.e., completely walking the length of the bridge? The answer is that A is bargaining for a complete performance. The offer is not accepted and a contract is not formed until B completes the requested act of walking across the bridge.

What if B starts to walk across the bridge in response to A's offer but when she is halfway across the bridge, A drops down from the sky in a parachute and shouts "I revoke." Is B's power to accept the offer by completing performance terminated? Professor Wormser originally argued that it was. After all, if the only way to accept an offer to enter into a unilateral contract was by completely performing, and the offeror retained his power to revoke or withdraw the offer any time prior to acceptance, then it follows logically that A could effectively revoke the offer because there has been no acceptance until B has walked the entire length of the bridge.
However, Rest.2d §45 states a different rule holding that A's offer is in effect an option contract in that once B has started to perform A is not free to withdraw the offer until B has had a reasonable time to complete performance. Eventually Wormser came around to the Restatement view

Many people have, today, taken many steps across the Brooklyn Bridge.  We have, in a sense, invited them to do so on their behalf.  How do we honor our obligation to them?

Let's find out.

3:30 PM PT: janosnation reports as follows:

Have been in touch with the NLG.  I was down at OWS with some of the legal observers. I am a NY attorney.  Obviously their phone lines are being overwhelmed by the people who have been arrested.  

It's unclear what exactly will happen next.  If they are arraigned in the morning, I imagine they will either get summonses for November, like other OWS arrestees, or the charges will be dropped, so the city doesn't have a repeat of the 2004 convention fiasco.  

I just got home, so I won't have new info for a while, but hope this helps.

3:42 PM PT: By request:
New York Civil Liberties Union's "What to do if you're stopped" Palm Card (small PDF) and their Understanding Your Rights page.

Florida ACLU "Right to Protest" PDF.

3:55 PM PT: averageoungman reports from the scene:

I was at the base of the bridge.  The police were (initially) simply allowing pedestrians on to the roadway. It wasn't until one of the organizers, an African American woman, began pointing out the distinction between the walkway and the roadway that people began to hop over or go around onto the walkway. Once she did that, a blue clad officer used a bullhorn to notify people they should get onto the walkway, but he was still letting people pass him on the roadway. This was all at the base of the bridge. From my perspective it's pretty clear they had this planned.


I'd prefer third on the Rec List, after the original "breaking" diaries by mdmslle and by "owner of the story" Charlie ("Slo-Mo") Grapski!

You also shouldn't miss The Troubador's diary today, if you haven't seen it.

5:28 PM PT: And I'm off for the evening, except as I can limp here via cell phone after a 90 minute drive.  Many thanks for the good comments.  I hope that some other lawyers here will also consider how to advance this cause.

Sun Oct 02, 2011 at 10:20 AM PT: Rec the Occupy Wall Street mothership here!

Sun Oct 02, 2011 at 12:14 PM PT: Thanks go to War on Error for presenting us with this video:

Sun Oct 02, 2011 at 2:53 PM PT: Don't miss CT Hank's photos, showing how the cops videotaped the crowd while walking backwards from behind their supervisors (making it look like the crowd was acting on its own rather than following the police).

Originally posted to Doane Spills on Sat Oct 01, 2011 at 02:31 PM PDT.

Also republished by Occupy Wall Street.

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