Infamy or Praise

TGIS: Thank God It's Schadenfreude! (245)

2009-11-20T07:00:00.000-08:00

This week's joy in the misfortune of others comes courtesy of KRGV (from Tuesday, November 17; link good at time of posting):

Anthony Carrazco, 19, practically arrested himself after he was going door-to-door attempting to sell weed, but he knocked on the wrong door.

Police say Carrazco had a gun, marijuana and went up to a police officer's front door and asked him if he wanted to buy some weed. They say Carrazco even had his own scale.

....

Residents in the area are getting a good laugh saying it was pretty ridiculous for Carrazco to do such a thing.

Police say the teen was drunk. He tried to sell the officer 3oz before the cop grabbed his badge and placed him under arrest.

[Previous TGIS]

A Round Tuit (9)

2009-11-18T13:00:00.000-08:00

This week's legal developments seem unusually focused-upon Google. The long-awaited revision of the class action settlement concerning the Google Books project (after the initial settlement unraveled under Justice Department criticism) was released this past Friday. As it involves Google, the settlement was printed in bright primary colors and is expected to remain in beta for the next several years.

Matthew Sag provides an excellent overview of the pertinent developments since the initial attempt at a settlement. The new arrangement would be limited to books published in the United States, Canada, the United Kingdom, and Australia, as well as any other foreign works which are registered with the U.S. Copyright Office; it is estimated that approximately 95% of foreign works will now be excluded from the Google Books project. As Sag notes, however, "The most significant change appears to be the narrowing of the scope of out-of-print works." He continues:

As predicted, the revised agreement now includes greater protections for rights holders who cannot be traced before a book is scanned and made available online. Money derived from orphan works will be held for 10 years and unclaimed funds will now be distributed to charities in Australia, Canada, the UK and the US. Under the previous version of the Settlement, the Registry actually benefited from failing to locate the relevant copyright owners.

As an information consumer rather than an author, I tend toward a pragmatic view that anything which builds the Google Books database of scanned and freely-accessible works sounds like a good thing. Fred von Lohmann discusses the promise of enhanced — unprecedented, even — public access to written works, but cautions that it may not prove to be as widespread or as beneficial as some anticipate (cites omitted):

[T]he Google Books project could potentially provide Americans (and only Americans, as the settlement only authorizes Google to offer Display Uses of in-copyright books to U.S. Internet users) with unprecedented instant access to a large collection of books that previously were available only in research university libraries. In particular, like the Internet before it, Google Books could make specialized resources available to people who otherwise might never be able to access them (see, e.g., Google's agreements to digitize U. of Wisconsin's Native American collection and U. of Texas' Benson Latin American collection).

In addition to enabling search and reading, the products and services envisioned by the settlement could also unleash innovative, transformative new uses for the information inside these books.

But the promise of what the settlement might accomplish is no guarantee of ultimate results.

First, under the settlement copyright owners can pull their books out of all the products and services envisioned by the settlement, including full-text search and limited "snippet view" access. This is essentially the "take the money and run" option—the copyright owner collects a per-book payment from Google for books already scanned, but then the public gets no online access to these books unless and until the copyright owners negotiate new deals with Google or other online providers. This effectively gives copyright owners a unilateral right to trump fair use, essentially "unpublishing" their books online. Some observers expect that most major publishers will opt to "take the money and run" for both their in-print and out-of-print titles, leaving gaping holes on the virtual shelves of Google Books. If this takes place, then the settlement would only foster access to orphan and unclaimed works. Still good, but far short of full access to every book in the University of Michigan library.

Second, Google is not required to offer all the products and services envisioned in the settlement. The settlement only compels Google to offer the following within 5 years:
Consumer Purchase (not clear what percentage of the scanned books must be made available)
Institutional Subscription for Higher Education, including Accommodated Service (for at least 85% of books scanned)
Public Access Service (for at least 85% of books scanned)
free search services (including Snippet View and Preview, for at least 85% of books scanned)
Library links that will help you find a library with hard copy (for at least 85% of books scanned)
....

Third, the public gets only the kinds of access that Google makes available, only through interfaces that Google chooses to expose. And while this level of access is certainly preferable to no access at all, the "One Interface to Rule Them All" approach is likely to impede innovation, which ultimately means less access. It would be preferable if others had access to the underlying book scans, just as Google had access to the World Wide Web when it built its own search engine.

This last point, that Google's competitors are not included in the settlement and will not have access to the Google Books scanned images, was also touched upon by Matthew Sag, who advised that providing such access "will still require legislative intervention." The Wall Street Journal Law Blog discussed the possibilities for such intervention:

[T]he problem, say critics like Sherwin Siy of Public Knowledge, a nonprofit that advocates for digital rights, is that right now it doesn’t seem like such a license would be permitted under the law.

Some are claiming now that the government needs to get involved; that the solution is not one best left to the courts to decide. Siy, for example, suggested that "a legislative solution would allow anyone the access of orphan works," without making one company the gatekeeper.

"Nobody should get a license to orphans without congressional action," said Pamela Samuelson, a professor at UC-Berkeley School of Law. "This is a legislative matter — you shouldn't use a class action for that."

As I've never written anything worth reading, let alone scanning, indexing, or stealing, I'm probably not the best person to unpack the competing copyright, business, and other concerns involved in this settlement and the broader project objectives; I'll merely note in passing that this week's Blawg Review host, Joel Rosenberg, the published author of dozens of books indicated that he was personally opposed to the settlement. Mike Masnick comes out on the other side, terming the revisions to the settlement overhyped and suggesting that Google's acquiescence to a settlement of the legal claims brought against it is damaging to public interests in itself:

I think this is all something of a sideshow. I still stand by my original feeling towards the settlement, which is that I'm upset anyone felt it was necessary at all. Google had a strong fair use claim that I would have liked to have seen taken all the way through the courts. And, of course, this settlement really has nothing at all to do with the main issue of the lawsuit (that fair use question) and is really a debate over a separate issue: how to take the books Google scans and trying to turn them into a "book store" rather than more of a "library." And, in doing so, the important fair use question gets completely buried -- which I find unfortunate.

Another Google effort met this week with more unequivocal acclaim. Late on Monday evening, word spread about a major enhancement to the Google Scholar project — the addition of search and review capability for full-text legal opinions from federal and state district, appellate and supreme courts in the United States. The Official Google Blog expressed the company's hopes for the enhanced project:

We think this addition to Google Scholar will empower the average citizen by helping everyone learn more about the laws that govern us all. To understand how an opinion has influenced other decisions, you can explore citing and related cases using the Cited by and Related articles links on search result pages. As you read an opinion, you can follow citations to the opinions to which it refers. You can also see how individual cases have been quoted or discussed in other opinions and in articles from law journals. Browse these by clicking on the "How Cited" link next to the case title.

Many practitioners, including Ernie Svenson were enthusiastic:

[M]aybe this is not the perfect solution for lawyers. But it's an interesting start. I can envision Google adding to the database as it gets more use, which it should. Here's why.

First, even if you have Westlaw or Lexis (or Fastcase), there are some great advantages to Google Scholar, such as dispensing with the need to login. If you're just looking for a recent case then clearly this is the way to go. And if you want to share a link to a case that's easy to do, again because there is no login barrier.... You click the link and see the case right away. How cool is that?!

You can search by state, or pick the states that you want to search in (there is no way that I could find to restrict federal case searches to just one circuit, unfortunately). Finally, Google Scholar has a nice way of organizing the cases you search for, displaying a tab called How Cited that lists other cases that have cited the key case and brief description of the citing language. Very nice!

As a practitioner myself, I share his optimism. I am a member of two state bar associations and have access to many free research tools through those organizations and otherwise. While these sites have their uses, they are limited and clunky to a ridiculous degree. I share Svenson's belief that statutory and case law should be available online for free; while vendors should be able to charge users for tools which offer a meaningful improvement in the use of such laws, basic access should be free to all. Notwithstanding, it's simply not feasible to derive much value from freely-accessible legal text without robust search capabilities and this is where the available free sites have, to this point, fallen short. Google's effort promises more comprehensive access and will do it with Google's tremendous search capabilities enhancing the underlying legal text. Huzzah! No longer will practitioners, citizens, and other interested folks be forced to suck hind teat simply because they're unwilling to pay a substantial amount of money for one of the major legal information services.

While it has only an incidental relation to the Books or Scholar developments, I would like to highlight another post by Mike Masnick concerning Google's business. Masnick touches on a key aspect of that business and the fact that Google behaves very differently from some of its larger competitors:

In the various debates we have on intellectual property, we often hear people insisting that Google's dominance is based on intellectual property -- even though there's very little evidence to support this at all.

....

Google does, in fact, have a bunch of patents -- but I watch the patent app filings and patent grants on a bunch of different companies each week, and Google tends to file significantly fewer patents than other comparable companies. Furthermore, I don't know of a single case where Google even hinted at or threatened another company with a patent infringement suit (if there are any examples, please let me know). It appears that Google has focused very much on just using patents for defensive purposes, since it is regularly sued by others for infringement.

....

Google, for its part, is open sourcing Microsoft, one line of code at a time, and Microsoft hasn't a clue as to how to respond, because it only knows the old world: competition through better IP.

And that -- right there -- is the key point we keep trying to make around here. You don't need to rely on intellectual property. And, if you do, you are opening yourself up wide to competition that doesn't rely on IP and innovates in a way that simply cuts your legs out from under you. Yet... we'll still hear stories for years about how all of Google's billions are because of its intellectual property, even as it gives away more and more of it each and every day.

Marketing seems to be a consistent topic of discussion in the blawgosphere, week in and week out. It seems that more and more, positions have been established and sides are being taken. Eric Turkewitz has been one of the leading voices on the side which is more critical of recent developments in legal marketing and trends in consulting relating thereto; Turkewitz originated the "outsource your marketing, outsource your ethics" refrain which has been widely-cited and repeated in the course of this debate and which encapsulates so well the main criticism of current trends in legal marketing. This week, Turkewitz comments once again on this topic, discussing the recent "Connecticut Five" matter and other developments:

When lawyers outsource their marketing to others -- be it a "search engine optimization" company, an attorney search company, or some hybrid -- they are hiring agents to do their advertising. Agents. We learned about that stuff in law school. The concept has a long and deep legal history. The web didn't make it go away.

....

So what's the downside to all this? Well, the lawyers that hire others to do their marketing might find that company violating copyright law (content scraping) or ethics rules and subject them to litigation. Litigation can be long and expensive.

But it's actually a lot worse than that because litigation takes time and money and many don't want to do it unless they absolutely have to.

Mark Bennett is on Turkewitz' side of this argument and a post he wrote this week illustrates quite well that those questioning the ethics of some who engage in legal marketing are not against legal marketing per se. Bennett's post offers sixteen rules for attorneys who want to engage in online marketing without checking their ethical responsibilities or professionalism at the door. It's all worth reading and considering carefully, but I think some of the choicer bits of good advice include "online (as in the real world) your reputation is everything"; "the State Bar is not watching very closely what you say here, but others are. The internet may be mostly lawless, but it is not without order. If you write dishonest content, people will link to it and discuss it and pretty soon it’ll be part of your reputation"; and "Don’t trust the marketers. Even if the marketers make what sound like the right noises...."

Another leading blogger who has devoted considerable time online to discussing the ethical implications of aggressive legal marketing is Scott Greenfield. There are certainly many others, but why am I highlighting these folks, all on one side of the argument? Simply put, I'm on that side as well, much lower down the totem pole, but there nonetheless. That's my opinion, this is my blog, and I don't feel any great inclination to feign impartiality. Anyhow, Greenfield posts this week in a more gently critical tone than he sometimes takes, taking Kevin O'Keefe to task for his defense of the marketing firm involved and marketing tactics at issue in the "Connecticut Five" matter:

While Kevin provides the tools, he also has been a strong advocate for using the tools properly. Granted, he may encourage lawyers to blog for the wrong reason (in my opinion), and perhaps his methodology is a bit over the top (using blog names that tend to grossly exaggerate his customers' relative merit), but he's got a business to run. At least he emphasizes that a blog without substance is a failed blog, one that will never bring in business and never receive recognition. I've always respected Kevin for this.

But now he's gone off the reservation....
This week the State of Connecticut began hearings on whether five attorneys violated state ethics rules by participating in an Internet advertising program run by Total Attorneys.

Cast in the light of protecting consumers, Connecticut's action is another step backward for consumers and the lawyers who serve consumers by providing legal services at reasonable prices.
Unlike Carolyn Elefant, whose concern was for the five solo practitioners who have been targeted as the scapegoats for Total Attorneys' total impropriety, Kevin hops on the marketer bandwagon to back up the business interests whose existence depends on desperate lawyers willing to wear short shorts and walk the streets.

....

Of course, it's true that the elimination of ethical proscriptions on all the things that make it harder for the least competent, least ethical, least worthy lawyer to get clients would benefit the lowest echelon of the legal business. And why not, marketers implore, since the competent, ethical and worthy don't need their services, instead having clients seek out their services because of their reputation for excellence.

Kevin used to tell lawyers who used Lexblog to be excellent. He used to tell them that the way to success was to demonstrate the finest qualities that a lawyer could possess on their blogs. That was the sort of advice, if not command, that flowed from the brain of the Kevin O'Keefe I knew.

Who stole Kevin's brain? Please give it back. Immediately. He needs it. And so do the rest of us.

Missing brains? I think we all know who — or what — is responsible for that. Yes, it appears that zombies have reared their ugly, decomposing heads in the blawgosphere. A recent post by blogger "TJIC", alleging that "new-school" fast zombies (think something along the lines of the infected folks in 28 Days Later or the Reavers in Serenity) are more scary than the "old-school" slow zombies (as in George Romero's Night of the Living Dead); Patrick at the Popehat blog responded:

Our disputant TJIC has this profoundly moronic observation on the walking dead:
slow old-school Zombies … are a lot less terrifying than the new-school type. You can just walk away, as long as there aren’t too many of them.
....

It’s silly to think that the dead can run. But it isn’t silly to say they’re “not scary” because they can’t. It’s criminal nonsense, and those dangerous nutcases who claim such, that we should ignore the problem because, "Oh, I could just walk away..." would be stoned in public squares if we ruled this country.

The dead can’t run, but they don’t need to. Because they walk. They walk to us. And they never stop walking. Or crawling, if need be. They know that we are not like them, and they are drawn to us. Inexorably. While they’ll happily, if they have such an emotion, consume us skin and bone, all that it takes is one bite to kill us. The infection is irreversible. Better, in fact, that they did eat us entirely. Because the bitten die, only to rise and BECOME THEM!

And so the cycle renews. Many is the internet-tough-guy who’s asserted, “Oh, I’ll just walk away,” only to find, hours later, that he could walk no further. That he could climb no further. And still they came, never tiring, never resting. And never going away, until finally, in despair, he dropped out of the tree, yielding to the inevitable. Until he (or what was left of him) was put down by citizens who took the threat seriously. Who didn’t claim, “I’m not afraid because I can outrun them,” only to find that they could just run so far. Who kept firearms on their persons, in their homes, in their offices, and in their trunks, at all times. Citizens who knew that one must kill the brain, so the body will die.

But one day, some ninny like TJIC will be caught, alone and defenseless, thinking he can just run. Or he can just climb that tree and wait. Then he will become two. Two will become four. Four will become eight. And the rest of us will learn the sorry lesson in mathematics that he failed to comprehend, until it was too late.

Have you cleaned and reloaded your firearms today?

Mark Draughn probably does have his firearms cleaned and loaded, but he's buying none of Patrick's "irresponsible alarmist claptrap" and describes in impressive detail six reasons why zombies do not pose a meaningful threat to humanity on the whole, including zombies' vulnerability to being shot in the head, their inability to use tools, inherent disparities in numbers between them and us, and their inability to organize and act collectively toward common objectives. He concludes:

I'm not a zombie denialist, and I certainly have no sympathy for the zombie coddlers who advocate we follow a live-and-let-rot policy. Nevertheless, zombie outbreaks are purely a local problem. Talk of a "worldwide holocaust" is at best misinformed and at worst a deliberate manipulation for political or financial gain.

....

[Z]ombies are not a significant threat to national or species security. Zombies victories are almost always the result of an unexpected outbreak hitting a small group of people. Once the alarm is sounded and professional counterzombie forces are brought to bear on the problem, it is quickly resolved. At the end of the day, we just have to shoot them in the head.

British blogger Jack of Kent praised the release of a report criticizing Britain's notably lax libel laws, which have led to "libel tourism" by famous folks who seek to chill unflattering speech about themselves. While the report is a good one, Jack of Kent cautions that it is only a first step toward remedying an international problem:

By itself it changes nothing.

Law can only be changed by influencing the legislature, or the case-by-case development of the law by the courts. It will not be enough to read and admire the report: it should be sent to every MP, senior civil servant, and judge.

Each political party should now address the report and, if possible, make a manifesto commitment to make parliamentary time - and civil service resources - available for libel reform, which should proceed on a all-party basis.

It is now undeniable that libel law needs drastic reform.

For me, this is because it dangerously elevates a private right to reputation above the need for fully-informed debates on matters of public importance, such as public health and public safety.

There are those who perhaps think that libel law itself should be abolished and that the tort of malicious falsehood should be widened instead; after all, if an area of law needs reforming in at least ten areas, then it may be that the law itself is beyond repair. I think this view has great force, though I doubt it is practical politics.

Things may be starting to change, however slowly. The Pinsent Masons firm reports that at least one libel tourism case has been booted for the plaintiffs' failure to show meaningful British traffic to the allegedly-libelous statements:

A libel action over an article that appeared on the website of a South African magazine has been dismissed by a court in England. Evidence suggested that the article had received only four visits from the UK in a two month period.

Describing the claim as being "totally without merit," Mr Justice Tugendhat said the claimants had failed to establish "substantial publication" within the court's jurisdiction.

....

Mr Justice Tugendhat said that in allegations of online libel, the claimant must prove publication within England and Wales. Previous cases have established that 'publication' requires evidence of readership, not just availability. The claimants failed to prove that.

They argued that "a significant proportion" of the magazine's online traffic came from England and Wales but failed to provide supporting evidence for that assertion.

[The plaintiffs] presented evidence of traffic figures from the website for the two months following the date of first publication. The publishers had recorded a total of 65 visits for the contentious article.

"It is not possible to say whether these visits included more than one visit by the same person," noted Mr Justice Tugendhat. "Nor is it possible to say in which jurisdiction the visitors were located."

The publishers did say that on average approximately 6.79% of visits to their website are made by users of the internet based in the UK. "If the average percentage of 6.79% is applied to the 65 visits, the result is that about 4 visits might have been made by one or more visitors based in the UK," said the judgment.

W. Scott Blackmer suggests something which, as counsel for a technology company making regular use of NDAs, I found compelling — a considerable proportion of the NDAs I'm routinely generating may not be worth my effort:

My seatmate on a recent cross-country flight was an entrepreneur who has established an innovative and successful online financial services business. “I never use NDAs,” he insisted. “Too much trouble, and too hard to enforce, anyway.”

That’s not an uncommon view of confidentiality or nondisclosure agreements (NDAs), at least outside the context of employment and independent contractor agreements, where they are routine and well accepted. It’s easy to understand why an employer would want to ensure that employees are cautioned to keep trade secrets secret, for example. With an employee confidentiality agreement, the employer can more credibly threaten termination and a possible lawsuit that does not have to rely on implied duties under general tort or contract law, or the more remote prospect of criminal sanctions for theft, fraud, or commercial espionage.

But in business or technical discussions with potential investors, customers, suppliers, licensors, franchisees, or joint venture partners, it is often very difficult to determine how much needs to be disclosed and exactly who “owns” which information and ideas. Were the parties just brainstorming? Did they independently develop a similar approach to a problem? Litigation over NDAs can be costly, public, and ultimately unsatisfactory to the party claiming a breach, especially if it is hard to prove the intended scope of the agreement and the actual source of information.

Blackmer offers some wide suggestions about fine-tuning and selectively-using NDAs to make those we enter into worth the effort (and potential litigation).

Finally, a post from Russell Cawyer caught my eye this week. Cawyer discussed the recent season-ending episode of the series Mad Men wherein (WARNING: The following may be spoilers; I've no clue because I don't watch the program) several of the principal characters orchestrated their separation from an advertising firm to which they were bound by noncompetition agreements, to form a new firm in competition with their old one. Cawyer suggests that the actions depicted in the show are a tremendous advertisement for what not to do:

In today's times, I would expect the next season would begin, and end, as follows. The episode opens in a courtroom where Draper, Sterling and Cooper are about to be sentenced for certain criminal offenses. The next scene then flashes back to last season's finale with Draper and company wheeling out boxes and boxes of information from their old employer; making solicitations to the customers of their old firm; and competing fiercely for new business. Lawyers are engaged; lawsuits are filed. Draper and company are slapped with injunctions that prohibit them from calling on or doing business with old firm clients and from using the confidential, proprietary information that was misappropriated from the old employer. Next, a grand jury is summoned by the U.S. Attorney for the Southern District of New York. Our heroes are indicted for theft of trade secrets and a whole host of other misconduct. Draper files for bankruptcy since his resources are drained by being a partner in an advertising firm that is enjoined from working with clients --not to mention the divorce from his lovely wife Betty. Finally, our Mad Men plead guilty to criminal offenses and are sentenced to moderately lengthy prison sentences. Next season's opener ends up being the series finale because the protagonists misappropriated and used information that belonged to their old employer.

What this episode of "Mad Men" teaches is that if one is going to leave an employer and either work for a competitor or start a competing venture; don't do it like the Mad Men. Departing employees should 1) honor reasonable and enforceable contractual agreements regarding competition and nondisclosure of confidential information; 2) not take or use anything from the former employer; and 3) compete fairly.

Well, that's it for this somewhat abbreviated edition of "A Round Tuit"; thanks for playing!

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., DailyApps, MotivatedPhotos.com, and Paris Odds n Ends Thrift Store.

But enough about us, Mr. Rosenberg.... What do you think of us?

2009-11-16T18:00:00.000-08:00

We legal bloggers love to talk about ourselves, but on occasion Blawg Review permits us to take a break from our incessant navel-gazing to allow a non-lawyer, non-student, non-academic to gaze at our navels instead. This time last month, Scott Greenfield profiled a gentleman who's become a regular commenter at Greenfield's Simple Justice blog, a formidable blogger at the WindyPundit and The Twin Cities Carry Journal blogs, and a welcome presence in many legal folks' Twitter streams:

Jdog is the name he uses most often when commenting here, though regulars know him to be Joel Rosenberg. Yes, he's that Joel Rosenberg, renown author of 23 fiction novels, gun enthusiast and certified firearms instructor, supporter of good cops and irascible critic of police impropriety. For a hack writer like me to have someone of such stature spend a few minutes of his time reading my drivel is an immense honor.

Joel makes no bones about his not being a "law talking guy," but on the other hand offers insights far beyond the common man. Joel's insights have provided a master class in understanding where the law succeeds, and fails miserably. And they are invariably presented with wit and humor that challenges the reader far beyond the facial understanding of his words. Don't be fooled by his self-effacing manner, his backdoor "I dunno's." He knows.

Joel "Jew with a Gun" Rosenberg brings his wit and insight to this week's Blawg Review #238 (cross-posted at WindyPundit for good measure). This Blawg Review commemorates two anniversaries — the United Nations International Day of Tolerance and the birthday of the National Rifle Association (because tolerance is a finite commodity). I've seen several posts today which describe this edition of the carnival as a strong contender for Blawg Review of the Year honors; this isn't hyperbole — Blawg Review #238 is not just a great roundup of legal blogging, including some posts on legal topics from outside the traditional blawgosphere, but also a very readable and entertaining post on its own. For all his worrying this week that he was in over his head as a Blawg Review host, Rosenberg's managed to pull it off in high style.

Mike Semple Piggot and I had a bit of fun with the U.N.'s International Day of Peace in Blawg Review #230 a couple of months back, but Rosenberg really puts it to those who provide official cover for regimes which trample human rights and coddle those who pay lip service to international coexistence while condemning those who actually make it possible. Highlights include reflecting on the military's excessive tolerance for religious extremism in uniform, the judiciary's excessive tolerance for unconstitutional behavior by police, and municipalities' lack of tolerance for Second Amendment rights.

The group blog Human Rights in Ireland hosts Blawg Review #239 next week.

TGIS: Thank God It's Schadenfreude! (244)

2009-11-13T07:15:00.000-08:00

This week's joy in the misfortune of others comes courtesy of Reuters (from Monday, November 9; link good at time of posting):

A British man on the run from police sent a picture of himself to his local paper because he disliked the mugshot they had printed of him as part of a public appeal to track him down.

South Wales Police had issued media with the photo of Matthew Maynard, wanted by officers investigating a house burglary, as part of a crackdown on crime in Swansea.

When it appeared in the South Wales Evening Post, the 23-year-old sent the newspaper a replacement photo of himself standing in front of a police van. They obligingly printed it on the front page.

The police thanked him for helping them in their appeal, saying: "Everyone in Swansea will know what he looks like now."

[Previous TGIS]

A Round Tuit (8)

2009-11-11T18:00:00.000-08:00

The State of Connecticut has commenced disciplinary proceedings against five attorneys who participated in a "cooperative marketing" scheme with a private company operating a client referrals website. Ethics rules in Connecticut, as in other states, forbids attorneys from sharing fees with non-lawyers and restricts advertising by lawyers. The arrangement in question in the "Connecticut Five" matter described itself as "cooperative" but did not vary its fees as the number of participating attorneys changed and had other characteristics of a non-cooperative marketing arrangement. The complaints which led to these disciplinary proceedings were filed, as Bob Ambrogi noted, by a Connecticut attorney who has filed similar complaints against hundreds of attorneys across the country. This matter was one of the more hotly-debated topics this week in the legal blogosphere.

Carolyn Elefant was the most vocal defender of the accused attorneys. She was highly critical of the Connecticut Bar which has been slow to react to the changes in the marketplace — particularly the rise of internet-based marketing and consumers' growing reliance on "per click" advertising. She was particularly critical of the disciplinary authorities' emphasis on the money involved in the supposedly-unethical marketing scheme — it makes no bones about the fact that it's a pricey for-profit service — and failure to account for the similar function of "per click" advertising, for other state bars' acceptance of similar marketing arrangements, and for the close association of this particular service with the American Bar Association (and the inherent legitimacy such an association communicates):

At the end of the day, Disciplinary Counsel is seething that profit-seeking third parties are providing a service that the Bars should have provided years ago but failed to do so. (Order at 14). The Internet has played a central role in lawyer marketing efforts for at least a dozen years now. The Connecticut Bar could have allowed lawyers to list websites online, could have sponsored educational websites with attorney ads, could have undertaken many activities to provide educational resources to consumers and to publicize lawyers' activities. Instead, the Connecticut Bar did nothing; it sat back and opened the doors to third parties to come in and capitalize on the void. The bars reacted similarly two years ago when Avvo launched its services. Yet now that someone is providing a service at a profit, the bars are up in arms, trying to protect turf that they willingly abandoned long ago.

....

Of course, for the more scholarly inclined, there are also Commerce Clause issues here as well. One of the attorneys involved is licensed in Massachusetts and maintains an office there. If Massachusetts doesn't bar him from participating in TotalBankruptcy, how can Connecticut do so without threatening his livelihood? Moreover, bear in mind that bankruptcy is a federal practice and one needn't necessarily be licensed in a particular state to practice in the bankruptcy court there, thus making the intrusion on commerce even more invasive.

Finally, there are also some serious fairness considerations here. These lawyers did not know, nor did they have reason to know that this system was unethical. TotalBankruptcy's legal opinions showed that it was. Other state bars (such as Hawaii) have since accepted the practice. Google Ads, a similar service (which even Disciplinary Counsel concedes differs in degree, not design) has never been challenged. If the bar wants to prohibit TotalBankruptcy as unethical so be it, as long as it does so prospectively. But don't penalize well intentioned lawyers for this uncertainty. But it's clear that Disciplinary Counsel has no interest in playing fair. It even references new legislation effective as of October 1, 2009 that criminalizes certain forms of solicitation. Obviously, a new law isn't going to apply to past acts. So why mention it at all, except to fan the flames.

....

Where the heck is the ABA in all of this? If the ABA is taking money from a company that has put five attorneys' reputations and licenses on the line, why isn't it defending them in this matter? The ABA has enough pull to sway judicial nominations and managed to even get Congress to propose legislation to exempt small legal practices from the FTC's Red Flag Rules. So why isn't the ABA weighing in here?

Whether you like TotalBankruptcy or TotalAttorneys or believe that their service offers value isn't the point. TotalBankruptcy is totally out of the Connecticut Discipline Process at this point. At the end of the day, on November 12, 2009, five lawyers will have their licenses and their reputation on the line. And no one has bothered to speak for them.

Scott Greenfield was less sanguine about the effects for-profit services like the one implicated in Connecticut cause in the legal profession, but conceded that the State's targeting of the "Connecticut Five" seems misguided:

There is a war being fought right in front of us. On one side is a tidal wave of newly established lawyer marketing businesses, deluging us with the promise of clients, money and success. On the other is the stodgy old world of hard work, competence and dignity.

....

This battle has nothing to do with the five lawyers in Connecticut who have been placed in the town square to be used as examples of what will happen to you by succumbing to the lure of the marketers. This is a huge battle, taking place everywhere and clouding the eyes of otherwise good, but hungry, lawyers who have been blinded to the meaning of professionalism by the nagging pain in their bellies.

I cannot agree with Carolyn's assessment that businesses like Total Attorneys are benign. They are a cancer in the legal profession, and one that happily infects far too many lawyers who are desperate for business. But I do agree that the five lawyers in Connecticut shouldn't be flogged as the scapegoats for this much bigger problem. We must deal with the disease, not the symptom. Free the Connecticut 5! Total Attorneys is another story.

Mark Bennett disagreed that the Connecticut lawyers' use of this pay-per-referral service was either novel or blameless and suggested that disciplinary action against them was appropriate:

A lawyer can’t pay a nonlawyer for a referral. This is an uncontroversial proposition. In Connecticut, paying a nonlawyer for a referral can even be a felony.

....

[Elefant] analogizes TotalBankruptcy to Google’s pay-per-click. She quotes a small part of the Disciplinary Counsel’s rationale for distinguishing Total Bankruptcy from pay-per-click, but leaves out the meat of it as well as a crucial word in a key sentence, so that it appears in her post that the Disciplinary Counsel is just haggling over the price. This is far from the truth.

Carolyn’s indignation is misplaced. If the bar is correct that Total Bankruptcy is in fact an unauthorized referral system in violation of the rules, then this should come as no surprise to the lawyers disciplined: they were, after all, paying to have cases steered toward them, and only toward them....

We don’t get a free bite at the apple every time the next shiny place to advertise comes around just because it’s not explicitly forbidden; it’s our responsibility as lawyers to know whether their advertising passes muster or not, and to avoid advertising that might violate the rules. Being dazzled by “Web 2.0″ bullshit is not, and should not be, a defense to a claim of unethical conduct by a lawyer.

Josh King was dismissive not only of Connecticut's actions but of marketing rules promulgated and enforced by other states' bars as well. King argues that such rules are generally, if not entirely, unconstitutional: "Ultimately, in the absence of consumer harm – and, indeed, a crystal-clear fit within the law’s prohibitions – states should never find that lawyer marketing practices violate their rules." He further suggests that these bars' instincts to maintain tight control over lawyer advertising is rooted in an archaic sense of "lawyer exceptionalism":

Anyone coming to the world of lawyer marketing from a consumer product background would be stunned by the state bar rules governing lawyer advertising. The vestigial remains of the courtly days before lawyer advertising, these rules are typically a mix of picayune detail and over-expansive reach, an attempt at lawyer exceptionalism in our 21st century media landscape.

Mark Bennett disagrees that the concept of lawyer exceptionalism is either outdated or misguided:

Am I engaged in “an attempt at lawyer exceptionalism”? Absolutely. 21st Century media landscape or no, lawyers are, and should be, exceptional. We have been given gifts—above-average intelligence, the opportunity to receive an advanced education—that the vast majority of people could never hope to receive. Further, society has given us a protected franchise: if an ordinary person tries to practice our art, he can go to prison. People entrust us daily with their lives, their fortunes, and their freedom.

Surely, in light of the exceptional advantages and responsibilities we’ve been given, it’s appropriate that higher rules be applied to lawyers than to those hawking Ginsu knives?

....

I am in favor of lawyer exceptionalism not because lawyers should be treated with special respect, but because lawyers should treat people with special respect. In our “21st-Century media landscape” lawyers need to be reminded that they are exceptional, that they have a sacred trust, and that lawyer advertising should be not merely undeceptive, but beyond reproach.

The message that “no blood, no foul” sends is the opposite of that needed reminder.

For my part, I'm hard-pressed to see much difference between the marketing scheme at issue in Connecticut and the outside marketing consulting which many attorneys use regularly. Does this matter turn on the nature of the fee arrangement? Instead of paying per referral, if the attorneys in a marketing scheme were to pay increased monthly or annual fees broadly-indexed to the number of referrals they received during the previous term, would that be acceptable? If that's the essence of the Connecticut matter, it seems like a slender thread to which to hang disciplinary charges, considering the tacit acceptance of similar marketing efforts in that state and elsewhere.

Frankly, in some ways this seems less seedy than the manipulative search engine optimization consulting or the bidding-up of keywords for per-click advertising (or for larger, glossier, more prominent yellow pages placement, for that matter), which have both been generally accepted. This service seems fairly straightforward; people want lawyers and this site has them to sell like widgets. It casts the profession into a poor light, turning legal services into a commodity without much concern for the clients involved, but that's not particularly different than the self-promotion done by many attorneys online and off.

I agree with Greenfield, that this issue is indicative of a larger problem, and with Bennett that the legal profession is exceptional and should be held to a higher standard. The Connecticut authorities may hope to arrest our slide down the slippery slope from lawyer to shyster, but this only makes it more apparent how far we've slipped already. All of this legal marketing on TV, online, on bathroom walls, beer glasses, and playing cards is sleazy; I'm a bit appalled that I'm now considering the subtle nuances of their relative sleaziness.

It was a big week at the Supreme Court, as arguments in Graham v. Florida and Sullivan v. Florida were heard. These cases concern the constitutionality of "life without parole" sentences where the defendants are juveniles (or were at the time they committed their offenses). Lyle Denniston provided an outstanding overview of the issues in these cases:

Four years after ending the death penalty for any minor who commits murder, the Supreme Court now is ready to analyze the next most severe penalty for a juvenile: life in prison without any chance of release, for a crime in which the victim is not killed. The issue will be examined in cases involving teenagers who were 13 and 17 at the time of their crimes — the 13-year-old convicted of sexual battery, the other youth convicted at age 17 of probation violation following a felony robbery when he was 16. Once again, the Court is inquiring into the degree of moral responsibility of minors, as well as into current moral standards, as factors in punishing youthful offenders.

....

The critical issue for the Court, having already decided that there are constitutional differences between juvenile and adult criminals, is whether that difference counts the same – or less – when the punishment a youth faces is not execution. It is not likely to abandon altogether its reliance just four years ago upon research data supporting those differences. But it must now reexamine that data as it considers whether life with no chance of parole can really be distinguished from death, and, perhaps a more difficult inquiry, does the distinction between the two vary with the age of the offender?

If the meaning of the Eighth Amendment is the underlying constitutional question, the closely related moral question for the Justices is whether a denial of any chance at rehabilitation – or future freedom – is close to being the loss of “life,” at least in some dimensions of what “life” means. As judges, the Court’s members will want to be comfortable defining the consequences of that denial in constitutional terms, but they will feel the tug of the moral question as they do so.

Scott Greenfield explains that the Constitution doesn't provide clear guidance for courts or legislatures who seek to draw lines between acceptable sentences for juveniles and unacceptable ones; nonetheless, he suggests that the Supreme Court needs to seize this opportunity to intervene in states' escalating and, he contends, irrational sentencing for juvenile offenders:

The problem is that our Constitution was never meant to decide such questions. When we get to the point of sentences short of death, the determination of propriety is purely normative, a personal vision of right and wrong. There's no hard rule to guide the Supreme Court. There's no test to measure it.

....

But [life without parole] for kids at all, no less for crimes short of murder, is just nuts. Absurd overkill is not something that any rational, reasonable legislature should ever enact. And yet they do, even though there's no empirical evidence to show that it makes any sense at all.

The problem is that states that have approved of the sentence of [life without parole] argue their emotional justification, the super-predator fallacy, the harm to victims, the crime wave, the need to stop these children.

If [life without parole] parole is constitutional, what will they do when they figure out that it doesn't change the way children think and behave? Can life plus cancer be far behind if this sentence? Can the Constitution serve as a substitute for sound, rational judgment? It wasn't meant to be, but when states can't manage to control the exercise of mindless fiat, the enactment of simple solutions, there's no choice. Somebody has to stop the madness, and the Supreme Court will be the last resort.

He doesn't sound hopeful about it. In another post, Greenfield notes, "What's missing from this discussion, and the argument before the Supreme Court, is an empirical understanding of children, or their development, of the changes they go through and their reasoning and comprehension processes. Without this, we're just making this stuff up. Making stuff up, however, has long been a tradition at the Supreme Court." Jeff Gamso puts things in perspective, writing that a sentence of life without parole and a sentence of death are not fundamentally different: "When a jury is deciding whether to sentence someone to death or to life without the possibility of parole (LWOP), all it's really deciding is how the person is to die. Either way, the sentence is death in prison. It's just that LWOP doesn't include a murder. And the expectation, if not always the reality, is that it takes longer." He continues:

These cases don't ask about actually releasing juveniles. They ask about possibility. Not should Sullivan or Graham be released someday but should they be allowed to seek release, and should there be a mechanism for granting it if it seems like a good idea at the time.

Put the legal and constitutional arguments aside, if you will. Ask the proper question: Why the hell would we want to impose [a sentence of life without parole] on anyone? I get that it's something other than death to help avoid executions. But on it's own terms it's cruel and pointless. And, by the way, it's likely that it makes prison administration harder.

Now we'll return to the Constitution. A punishment that makes no logical sense and has no ultimate rational purpose except cruelty for its own sake, should be prohibited as cruel and unusual and as government action without due process. There's really never a constitutional justification for [life without parole].

It's death in prison. Death penalty light.

The kids should win.

Alas, that's a goal, not a prediction.

Brian Tannebaum shares Gamso's pessimism about Sullivan's and Graham's chances because, he writes, severe sentences like life without parole for juvenile defendants "make sense":

Life without parole sentences for juveniles make sense because they keep politicians in office, and keep people believing they are safe(r).

Talk about putting money into education, helping kids on the "front end" rather than the "back end" when they are well on there way to prison, and you just "don't understand." The anger and hatred expressed by those who can't believe we as a country would even consider non-homicidal children in prison for the rest of their lives to be cruel and unusual, is deafening.

Prosecutors want this hammer. The people, are told by their elected officials that they want this hammer.

That's why it all makes sense.

And that's why they'll stay in effect, subject to some level of discretion that is virtually meaningless.

Mike Cernovich suggests that appeals to emotion and cries for sympathy for juvenile criminals without hope for redemption and release from prison are misplaced; his sympathies are squarely with the victims of criminals like Sullivan and Graham:

What's the point of sending people to prison at all? To me, it seems that you send people to prison for violating the social contract. As part of a member of organized society, I do not get to kill people who harm me. In exchange, the state removes the violent member of person from society.

What people should be removed from society? As Aristotle taught, the ability to reason is the sine qua non of a person. It's what separates us from the animals. Biologically, we are just pieces of meat - not much different from the animals we'll eat at dinner tonight. What separates humans is the ability to reason. What also separates us from animals is the ability to empathize, and to recognize the existence of other minds.

One who surrenders his reason has behaved as an animal - and should thus be treated as an animal.

....

Why do these "children" not deserve life in prison? Because ten years from now they'll realize, "It was wrong to rape and torture a woman before requiring her to perform oral sex on her own son"? Because they just made a mistake, and are deserving of a second chance? Really...Why should these teenagers be released?

Since teenagers do not have fully-developed brains, they should be excused some youthful indiscretions. Recognizing that teenagers are different should not excuse torture and gang rape. Deciding to rape and torture someone is not a cognitive error. It's not mere inability to control an impulse. It's an act of unmitigated evil.

The teenagers in the Dunbar Village Incident are privileged to remain alive. A just society would have put them down like the savage animals they are.

I agree with much of what Cernovich says. There aren't "magic" ages before which everyone thinks and acts as children and afterward as adults; we all know very mature young teens and very immature people well into their twenties. Society has a right to protect itself and an obligation to protect those of its members who do not prey on others.

Its citizens may determine that the best means to achieve that is to provide for extensive "front end" help for troubled kids and families, prison systems geared toward reforming and educating prisoners, and post-prison social services to improve the lives of former offenders, but they're not constitutionally obligated to go that route. Are increased prison sentences for youthful offenders successful in deterring crime by juveniles and increasing society's security on the whole? There's considerable evidence for and against, but that lack of clarity is no more an argument against harsh sentencing than it is support for it. Everyone can spin the numbers as they'd like to support their positions; with our votes, we get to make the decision and in Florida and elsewhere, we have.

Greenfield's right that the Constitution doesn't settle issues like this for us; perhaps that's because the Founding Fathers couldn't foresee a broken society like we see around us or perhaps it's because they realized that they didn't have all the answers. We need to figure things out for ourselves and right now, we're keen to remove "savage animals" from our midst rather than worry about domesticating them to play by the rules the rest of us do.

Perhaps that'll change. We may tire of the considerable expense of extensive, long-term imprisonment and look for a cheaper social service-focused approach; we may decide that such an approach is simply a better means to secure ourselves; we may discover a cure for criminality in handy pill form and Obamacare will make it available to all from cradle to grave; we may just give up, decide that society can't protect us any longer, and revert to a Wild West mentality whereby we're all responsible for protecting ourselves and our families. Who knows?

All we can agree on at this point is that there are dangerous folks within our society and a fair number of them are under 18 years of age. I think that our society's principal obligation is to us, not to them; reform them if you can, but don't do it at the expense of our safety. Society is for the benefit and protection of its civilized members, not the ones who demonstrate early and often that they have rejected society's most basic norms.

It wasn't a matter of life or death, but the Robes also considered the Bilski v. Kappos case, concerning so-called business method patents. Once again, Lyle Denniston offered the best overview of the issues and arguments in the case and outlined the stakes in this matter:

In 1981, the Supreme Court last decided a case spelling out the kinds of inventions that are eligible for patent rights under federal law. Now, in the wake of major changes in the world of commerce, the Court will try to provide a modernized definition of patent eligibility. Some experts say the outcome may affect the legality of more than 130,000 patents that already exist, and the legal fate of untold future inventions, especially in digital commerce.

....

The briefs put before the Court not only a dizzying array of ideas on that very point [determining what the word "useful" means in the patents context], but throw in a high degree of alarm about where the patent system as a whole may be heading in a world increasingly dominated by those most elemental of electronic expressions, ones and zeroes — the language of digital commerce and conversation. Although the Patent Office and many of its supporters suggest that the Court’s own record on patentability is a quite consistent pattern since 1790, and that it has already adapted to the “knowledge economy,” there clearly is much disagreement with that.

There is a deep chasm between those who think too much innovation is being locked into patent monopolies, and those who think too little is getting the protection of exclusive legal rights, and yet the Bilski case seems to ask the Court to reconcile the two.

Even if the Court were to see the case as being limited solely to “business method” inventions, that is a concept that now has so many variables, present and future, that defining it does not appear to be any easier than saying — in legal terms — what the word “useful” means in the Patent Act.

Brett Trout provided an excellent and concise background on the case and overview of the oral arguments. Jake Ward noted that it's "generally a futile effort to predict how the Supreme Court will rule on any given issue," but very helpfully culled some intriguing bits from oral arguments to permit us to speculate to our hearts' content. My favorite intellectual property reporter, Joe Mullin, gave us an excellent recap of the issues and arguments in Bilski, as well as adding a bit of color to an otherwise dry bit of Court business. He wrote that following their counsel's remarks post-arguments, inventors Bernard Bilski and Rand Warsaw spoke briefly with reporters:

[Warsaw] described the fixed-billing method offered by his company, WeatherWise. Warsaw was followed by an appearance by the elusive Bilski himself, who hasn't spoken publicly about his high-profile case before.

"I was completely awed and impressed by the whole process," Bilski said. "I couldn't tell you what the outcome will be. But not getting this patent made it very difficult to get this service out to many customers."

When reporters asked Bilski, who departed from WeatherWise in 2003, what his occupation is today, he responded, "At present I'm an employee of the federal government." In what capacity? "Not in the patent office," he said with a smile. And with that, he walked away.

Crime and punishment concerned the High Court in the Graham and Sullivan cases, but crime was also on Ilya Somin's mind this week. On the anniversary of the fall of the Berlin Wall, generally cited as a symbolic end of the Cold War, Somin argued why the crimes and atrocities committed by communist governments against their peoples should not be forgotten:

[T]here are several reasons why increasing recognition of communist crimes should be an important priority: providing justice for victims and perpetrators; alleviating the oppression of the unreformed communist governments that still exist today; and ensuring that comparable atrocities are never repeated.

....

The extensive attention paid to the Nazi crimes has helped sensitize people to the dangers of racism, anti-Semitism, and extreme nationalism. These evils have not disappeared. But at least the need to oppose them is widely accepted throughout the democratic world. A similar focus on communist crimes might increase recognition of the dangers created by ideologies based on class warfare and socialism (by which I mean full-blown state domination of the economy, not merely government regulation of private industry or a welfare state).

It is unlikely that communism will reappear in the exact form practiced by Lenin, Stalin, or Mao. However, the core ideas of socialism and class warfare are still advocated by various political movements and governments, especially in the Third World; for example, by rulers such as Hugo Chavez in Venezuela and Robert Mugabe in Zimbabwe, both of whom have cited the communists as models for their own policies. Sometimes, socialism and class conflict are coupled with extreme nationalism and oppression of minority groups, a combination pioneered by the Nazis. The debate over socialism is far from over. Moreover, future political and technological developments could make a resurgence of socialist totalitarianism more likely.

One person who's already forgotten those times — or at least the fall of the Berlin Wall itself — is Somin's co-blogger Kenneth Anderson, who confessed that he "wasn't paying attention when the wall came down":

I’m sorry I wasn’t and I don’t quite know what happened. I don’t say this to be flippant in the least. I knew that big things were happening, but unlike many others’ experiences, it all seemed very gradual to me and finally anti-climactic. It seemed like something that was gradually sliding into place that had been sliding into place for a long time but was also terribly fragile.

I credit that feeling to two things. One was that I was working in a Manhattan law firm, and completely buried in learning international tax. The other was that I had spent the previous several years putting in large amounts of time with Human Rights Watch, both its Americas division and its Helsinki division. I had done many missions in Yugoslavia, watching the Soviet empire fall apart while watching Yugoslavia fall apart very much upclose, at the village level, and watching it lead to war, affected how I saw the Soviet Union. I had a huge anxiety that war would break out in the Warsaw Pact; or that it would be a repeat of 1968 — especially a fear of a repeat of the end of Prague Spring, that fear more than anything — or something that I didn’t know, but bad, would happen.

I was also perhaps lulled into a sense of passivity that was somewhat Bush senior’s approach — looking backwards, it had important advantages by treating it as a matter of course — but for me, at least, it felt a little like events were unfolding, not so much as Frank Fukuyama would later say, but more as people like Adam Michnik and the Eastern Europeans intellectuals I knew said it would, if only the US and Western Europe would stay the course. In Yugoslavia, it was a very different sense; the intellectual elites of Yugoslavia understood very well that the end of the Cold War undercut the existential position of Yugoslavia and so it did. I had a sense of trepidation, not of liberation and freedom. The profound sense of liberation came later for me, when I finally believed that it was permanent and not a temporary blip.

The economics of the legal business was a popular topic for discussion this week, as it generally is. Bruce MacEwen discussed the economic and non-economic forces which underlie lateral partner movement amongst firms and whether these movements are worthwhile for the partners and firms involved:

If you stand back and look at the lateral partner migration phenomenon on a macro basis over the past two decades or so, what I think you see is a vast, and economically compelling, sorting-out. It's a sorting out of partners with high-margin, high-value practices migrating to firms where there are kindred souls and where the value of their practices can be maximized, and, on the other side of the coin (as it were), partners with low-margin, commoditizing, practices moving out of firms less willing to support those practice areas and into firms where they still feel welcome.

....

One managing partner recently told me that his firm's batting average was 1 in 3: One lateral in three succeeds. Another told me that they seem to have equal shares people who hit home runs and those who unceremoniously ground into double-plays--and that no matter how hard they analyze everything, they can't tell which will be which up front. They continue to be surprised both by who succeeds and who flames out.

Indeed, this mirrors my own experience.

Charon QC considered whether British law firms will be able to attract outside investment without changing the foundations of their business model:

Cutting to the chase – in the partnership model the profit goes to the partners, so there isn’t anything left for external investors. To attract external investors there will have to be an attractive return on capital invested. This means that the model will have to change. Partners will have to convert drawings to a much smaller salary and share, as shareholders, along with external investors. Have they the appetite for this? Of course, it is quite possible for law firms to come up with wonderful fudges by packaging off parts of their ‘business’ to external investors… but that, I shall leave for another time…and, who knows, possibly for that meeting at a lavishly appointed hotel with greedy lawyers?

The law firms will also have to build up a real brand, recognised not only in this country but worldwide. Law firms are not very good at marketing themselves to the wider market, it would seem. Rachel Rothwell, writing in the The Law Society Gazette states that ‘More than 60 of the public cannot name a single law firm’.

While the top City firms are obviously well known to their specialist clientele – and they are not all interested in the wider market – this lack of brand recognition of law firm providers of legal services does not augur well for the future.

One fundamental characteristic of law firm practice on both sides of the Atlantic has traditionally been the dominance of billable-hour billing. Jordan Furlong argues that clients will drive the profession away from this model toward one which offers less variability for them:

The fundamental client objection to lawyers’ fees is uncertainty: the client rarely knows the final price before the work is done. Neither, in most cases, does the lawyer — either because the price is truly unpredictable or, far more likely, because the lawyer has neither the means nor the incentives nor the inclination to figure it out beforehand. The fundamental variability of legal fees powers a business model that has proven enormously profitable for lawyers: because the fee varies according to the amount of time and effort devoted to the task, the lawyer has every incentive to maximize that time and effort. Uncertainty creates risk — 100% to the client — and reward — 100% to the lawyer.

The radical change facing law firms today is the end of variable fees as law firms’ financial engine and their replacement with non-variable fees — or, in the parlance of the day, fixed fees. Evidence continues to emerge not only that fixed fees are the immediate future of how lawyers’ services are sold, but also that they’re long-term future of how lawyers’ entire businesses operate.

....

Endless battalions of associates only make sense in a variable-fee system. When the amount of money you make is tied directly to the number of people working on a file and the amount of time they take to do it, you have every incentive to increase both. In a fixed-fee system, profitability flows in precisely the opposite direction: fewer people hired, fewer hours spent. Law firms that abandon variable-fee structures will shortly find themselves completely rethinking how many associates they hire, how much they pay them, and what tasks those associates are assigned. Under a fixed-fee system, a firm that genuinely wants to train its associates can afford to do so, not least because there’ll be fewer of them — the demand for associates will plummet, along with their cost.

As variable fees give way to fixed fees, we’re seeing a corresponding shift of burdens from the client to the lawyer: the risk of financial shortfall, the maintenance and analysis of relevant data, the obligation to control costs, the necessity of working smarter, the requirement to properly define productivity, and the responsibility to prioritize value. These changes are poised to transform lawyers’ incentives, processes, systems, and attitudes — for the better. Forget the billable hour: the future of law practice is tied to whether lawyers’ fees remain variable — or, put differently, to whether the client or the lawyer decides how much the client will pay. If I were you, I’d bet on the side that’s holding the money.

With so many weighty topics this week, we need a diversion or two, I think. If you find yourself in Iowa and craving patent-related dramatic entertainment, Brett Trout recommends a play:

The play The Farnsworth Invention begins tonight at the Des Moines Community Playhouse. Why would a patent blog write about a play? Well, unbeknownst to me before last night, The Farnsworth Invention is a play about patents. It explores patentability, infringement, enablement, interference, licensing and litigation. It even pastes parts of actual patents right into the script. You simply could not ask for any more patent and invention in a single play.

If prose is more your pleasure, Susanna Dokupil began a work of serial fiction at the Above The Law blog, entitled "My Job Is Murder: Of Confinement and Contracts":

Tyler got onto the elevator and pressed the button marked 13. As the doors closed behind him, he looked down at the golden manacles that signified his position as an associate. He must survive the tower another day, he thought. Only 657 more days until he paid off his student loans — that is, if he stuck to his budget. Until then, Tyler must serve out his apprenticeship as a squire to the knights of the realm, ensuring that the knights had the proper weapons for jousting with opposing counsel.

He reached his sparsely furnished cell in the law offices of MakoProphet, a D.C. appellate boutique, and turned on his +6 vorpal laptop. Tyler had a tendency to let his imagination wander. He scored high on Intelligence and Dexterity, but less so on Strength and Charisma. Tyler had spent — or rather misspent — the better portion of his youth immersed in fantasy fiction, various strategy games, SimWhatever, or some combination of the above. He tended to view the world in game terms. It helped him break down the complexities of real-life interactions into understandable bits to compensate for his obvious lack of social skills.

Finally, although I don't normally discuss politics here (extensively at least) or endorse candidates, I want to take this opportunity to jump on board the "Gideon for Governor" bandwagon. Gideon notes that current governor Rell will not stand for reelection and so he's thrown his hat into the ring (although he'd like it back at some point; public defenders don't earn enough to just throw away their hats willy-nilly, you know):

What needs to be done? The first response is obvious: abolish the death penalty. But there are so many more things that need to be changed about the criminal justice system in our State. In my mind, there’s only one candidate who is qualified to do that. So, you guys can be the first to hear it: I am hereby announcing my candidacy for the Governor of the State of Connecticut and I will be running on the Smart on Crime platform for the “It must be easy; she did it for so long” party.

More details about the, well, details of my platform will follow in subsequent posts. I’m now going to go and do a cartwheel.

While I don't live in Connecticut, I don't know his real name, we've never met, and he and I probably differ on every meaningful political issue you can think of (and many you can't), I'm happy to support Gideon's campaign. Gideon, if the people of Connecticut lack the wisdom to make you governor, I hope that you'll consider a move west to California; we'll elect anyone governor out here.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., ACME License Maker, Wikimedia Commons, and Paris Odds n Ends Thrift Store.

If there's no Blawg Review in Disneyland, can it really be the Happiest Place on Earth?

2009-11-10T20:00:00.000-08:00

One of the pleasures of living in California is the state's sensible tax policy that one can go to Disneyland about as frequently as one wishes and one's pocketbook permits. Fortunately, last week was one of those wondrous times when the two came together and I found myself with the family in the Happiest Place on Earth. There, as Walt said, we can find "fond memories of the past and... savor the challenge and promise of the future"; what we can't do (or shouldn't) is read Blawg Review.

One of the pleasures of returning home from a week away is finding a Blawg Review waiting. That was particularly true this time around. Eric Turkewitz' Halloween-themed Blawg Review #236, hosted at his New York Personal Injury Law Blog, was a real treat. Accompanied by a "pissed-off" bogeyman, Turkewitz made the rounds on All Hallows' Eve, scaring up the best legal blogging of the final week of October. Highlights included the horrible fate awaiting drug company executives in West Virginia, the duty to disclose a haunting of your real property, and the misadventures of one hapless drunken witch. Turkewitz is a perennial contender for Blawg Review of the Year honors. If this one doesn't put him at the top of voters' lists this year, there must be some trick.

Not as pleasurable as visiting Disneyland or returning home afterward is that first day back at work. Finding myself swamped, Christian Metcalfe's outstanding Blawg Review #237 had to wait a bit. Building around the Putney Debates of 1647 (which you probably think about regularly), Metcalfe manages to create a very readable Blawg Review which is both dense with history and wide-ranging in its collection of recent legal blogging. Highlights include the challenges of business in China and Russia, the plights of those down on their luck within the legal profession and without, and wondering at the sticky fingers of police officers in Arizona who help themselves to defense files.

Joel Rosenberg, that "Jew with a gun" who comments frequently on several legal blogs and is a noted man-about-Twitter will host next week, either at the Windypundit blog or one of his other online homes.

TGIS: Thank God It's Schadenfreude! (243)

2009-10-30T07:15:00.000-07:00

This week's joy in the misfortune of others comes courtesy of the Hit & Run blog (from Wednesday, October 28; link good at time of posting):

From the office of Rep. Jeff Flake (R-Ariz.):
Republican Congressman Jeff Flake, who represents Arizona’s Sixth District, today released the following statement regarding his vote against H.Res.784, a bill “honoring the 2560th anniversary of the birth of Confucius and recognizing his invaluable contributions to philosophy and social and political thought.”

"He who spends time passing trivial legislation may find himself out of time to read healthcare bill," said Flake.

[Previous TGIS]

A Round Tuit (7)

2009-10-28T13:30:00.000-07:00

Home with the flu, Brian Tannebaum had some time to reflect this week on how lawyers interact with one another. Delirious with fever no doubt, he suggested that we have generally forsaken collegiality and treat our fellow counsel as though we're engaged in a war of all against all, rather than a common profession with efficient administration of a system of justice as its objective. He wrote that courteous, informal communications still have their place:

When did it get like this? When did lawyers have so much mistrust of each other that the most simple form of courtesy became the exception?

This is the shame of the Bar – that we criticize legislatures for making bad law from one case, but we treat all lawyers as if they were the asshole we just dealt with.

Countless times I have had lawyers tell me negative things about certain lawyers. But when I have dealt with that lawyer, there has been no problem. How simplistic are we lawyers that we cannot attempt to have a cordial relationship with a lawyer because we fear they will screw us?

This is not the practice I want to have. All you lawyers that treat every single lawyer as if they are going to screw you next, are part of the problem.

It has to stop somewhere.

There were a number of posts this week which offered some support for these views. In one of these, John Mesirow related the story of one lawyer whose laudable use of informal communications nonetheless failed to evidence a courteous, collegial relationship with opposing counsel:

Attorney David Cwik represented the Plaintiff in a medical malpractice case. He was not pleased when defense attorney Marilee Clausing filed a Motion to Dismiss because she claimed Mr. Cwik failed to disclose his expert witnesses. How did Mr. Cwik repond? He wrote her a letter with the following sentence:
Should you succeed on your motion, we would merely dismiss the case, refile it shortly thereafter, and in the interim send somebody over to perform a clitorectomy on you.

Advising us to "stop being such jerks", Jay O'Keeffe echoed some of Tannebaum's sentiments and further suggested that discourtesy and excessive formality betray weaknesses in one's case as much as these reflect badly on one's professionalism. He described the findings of a series of interviews conducted with judges and justices in his state:

The Robes uniformly told us that uncivil or personal argument does not work, and some of them even take it as a sign of weakness in the underlying argument. In other words, needless bluster either dilutes your argument (which is bad) or affirmatively signals its weakness to the court (which is worse).

....

Effective lawyers gain credibility with the court by providing useful information in a manner that is helpful and respectful of the court's time. That means carefully organized briefs without
personal attacks,
needless (ad)verbiage,
string cites for uncontroversial propositions, and
overly clever word choices and rhetorical flourishes.
It's the tight, well-structured brief that gives me pause these days. And when I can tell that my opponent was writing with a smile on his or her face, I really start to get worried.

James Lukaszewski also touched on the practical benefits of enhancing one's cooperative sensibilities:

The lesson for all attorneys is getting clearer by the day: Even though our system is adversarial at its root, as the number of cases getting to trial decreases, more and more forces are pushing for settlement. Increasingly, the answer is to find and hire lawyers who are comfortable being empathetic. Being empathetic is the opposite of being adversarial. Empathy means doing things that matter, where actions speak far louder than words. The concept of empathy is often described as “putting yourself in someone’s shoes.” If that other person is a victim, you’ll be causing yourself and your argument, as well as your attempts to settle, extraordinary damage. Better to step back and look at what the “victim” needs that you can provide, promptly, as a means of settlement and resolution.

Ninety-nine cases out of 100 filed will be settled, arbitrated, negotiated, dropped, or dismissed. Having your day in court is getting to be a pretty rare event.

Oh, and did I mention learning how to apologize? We’ll save that for another blog post.

Eric Cooperstein reminded us that while we're trying to get along better with one another as individuals, we shouldn't forget to be kinder to the much-maligned BigLaw firms we encounter online and off:

I am a solo and if large law firms crash, I am going to end up covered in dust.

There is a healthy tension between large law firms (“biglaw”) and solo or small firms (collectively, the “smalls”).

....

But we need each other. Biglaw needs smalls because the bigger they are, the more conflicts they have. Biglaw’s corporate clients are managed by people — who get divorced, have too much to drink before driving home, get into accidents, etc. Many of those matters need to be referred out. Smart lawyers refer clients to good lawyers they know who are reasonably priced and will treat the client well — like smalls. Biglaw attorneys also need mediators and arbitrators, and smalls are less likely to be conflicted out than neutrals at other large law firms.

Smalls need biglaw, too. Smalls simply do not have the brand recognition that biglaw has; smalls are constantly marketing and looking for referrals. Biglaw attorneys are a great source of referrals for smalls. Also, when a case comes in that is to big for a small to handle, the small firm needs to bring in some muscle. Obscure questions may arise in a client’s case that need special expertise that can be found only at a large firm. Relationships with biglaw are a two-way street.

As Rodney King once said, "People, I just want to say, you know, can we all get along? Can we get along? ....Please, we can get along here. We all can get along. I mean, we’re all stuck here for a while. Let’s try to work it out." I agree. Group hug!

Charon QC, a self-described "liberal atheist", wrote this week of religious freedom, recommending an essay by Jonathan Turley, which argued persuasively for protecting free speech with, rather than sacrificing it to, religious freedom internationally:

It was Voltaire who said “If god didn’t exist, it would be necessary to invent him” and history reveals that it was remarkably convenient to have a god and a structured system of rules as an instrument of social control. I hesitate to go further lest I find myself banged up at a secure police station in West London for breaching the Racial and Religious Hatred Act 2006.

I would like it to be perfectly clear, as a liberal atheist, (Lest some police officer is behind with his ‘nickings’ this month) that I have no intention of breaching s. 29B of the Racial and Religious Hatred Act because I am, just that, a liberal atheist – tolerant, inclusive, relaxed and laid back, about the things fellow human beings believe in.

I would, however, like to commend a piece written by Professor Turley, a US academic, on Blasphemy laws.

Professor Turley writes in USA Today...
Perhaps in an effort to rehabilitate the United States’ image in the Muslim world, the Obama administration has joined a U.N. effort to restrict religious speech. This country should never sacrifice freedom of expression on the altar of religion.

This morning, the latest sacrifice of Britons' freedoms caused Charon to lose his religion. The Labour government, for whom he has voted in the past, has now and for the foreseeable future lost his support for their surreptitious expansion of forfeiture laws, granting forfeiture authority to councils, quangos (quasi-nongovernmental organizations), and "organisations as diverse as Royal Mail, the Rural Payments Agency and Transport for London." Charon wrote:

Putting draconinian powers in the hands of council officials is not a clever move and will, inevitably, result in poorly trained council officials making poor decisions.

I’ve lost patience with Labour over their continued and almost relentless attack on common sense when it comes to civil liberties. Their much vaunted talk of human rights seems futile when they give with one hand yet take with the other. This decision will be a disaster like many other decisions of a Home Office which has not, to coin a phrase, been ‘fit for purpose’ for some time. And to think, after the crazies we have had running the Home Office in recent years, I thought that Alan Johnson might actually be vaguely sensible. This is not sensible... and while I am permitted in New Orwellian Labour Britain... I shall say so.

I have stopped voting labour.... this means I shall not be voting for the first time in nearly 30 years.

Elsewhere in Europe, Eugene Volokh points out that the Maltese courts "appear willing to enforce" a law prohibiting the vilification of the Roman Catholic church or religion. For its part, France has taken a hard line against the controversial Church of Scientology, convicting the organization of fraud and fining it nearly $1 Million for inducing two former members to spend tens of thousands of dollars on various Scientology-prescribed materials and treatments. The verdict and fine may be a prelude to an outright ban of the organization in France:

When the hearing opened, there were expectations that the court could order the group to be banned in France but due to a mixup over a law that passed in parliament just before the start of the trial in May, that option was ruled out.

The legislation has since been changed back to allow the dissolution of an organisation found guilty of fraud but because of the timing of the case, there was no question of forcing the Church of Scientology to be wound up.

"It is very regrettable that the law quietly changed before the trial," Georges Fenech, head of the Inter-ministerial Unit to Monitor and Fight Cults, told television station France 24.

"The system has now been put in place by parliament and it is certain that in the future, if new offences are committed, a ban could eventually be pronounced," he said.

In the U.S., the First Amendment guarantees both freedom of speech and free exercise of religion. Ashby Jones noted an odd case which illustrates the tension between the two:

Here’s a strange little constitutional riddle for you: When can a spoken statement constitute a violation of the First Amendment?

Answer: When the speaker is a government employee and the spoken statement amounts to an “establishment” of one religion over another.

....

In 2007, a public high-school teacher in Orange County, Calif., made some provocative statements in an AP history class slamming religion pretty hard.

The teacher, James Corbett... referred to Creationism as “religious, superstitious nonsense” during a 2007 lecture. Corbett made a host of other controversial statements as well. One of his students, Chad Farnan, sued Corbett and the school district, alleging a violation of his First Amendment Rights.

In May, a federal judge in Santa Ana, Calif., James Selna, granted summary judgment, partly in favor of Farnan and partly in favor of the defendants. Click here for the opinion. Specifically, Judge James Selna ruled that the “superstitious nonsense” comment violated Farnan’s rights, but ruled that nearly two dozen statements did not.

For all the difficulties religious folk encounter or perceive as a result of actions by some outside their religion, sometimes it's those within a religion which make things more difficult for their brethren. At the Popehat blog, Ezra wrote that in general "it's hard out there for a Jew" and it's particularly so in Israel:

Jews regard Saturday as the day of rest (for Mormons it’s Sunday), and for Orthodox Jews that means you don’t use any electricity (among other things.) There have been clever means found to get around this (timers on lights, etc) and among the most imp0rtant was the Sabbath elevator. It’s an elevator that stops at every floor so that the devout can sneak around the no using machinery or electricty rules. But no more, as Rabbi Yosef Shalom Elyashiv has ruled that the elevators are not kosher.

Apparently, there are buildings with these elevators all over the World, and this ruling is causing consternation. You see, many Jews had used the elevators to live in skyscrapers, leading to booms in tall buildings in Israel, and now they are stuck.

Isn't religion supposed to be uplifiting? In this case, it seems, it prevents the faithful from going either up or down. What a letdown!

Commenting on a disturbing article in the online magazine Slate, Matt Kaiser was given to wonder what might account for the poor performance of a number of his fellow attorneys in Maryland. The Slate article described how in ten percent of studied cases, sentencing worksheets were incorrectly completed by prosecutors and those errors were rubber-stamped by defense attorneys who are expected to note (at minimum) those errors which were not in their clients' favor. As it turns out, the errors worked both for and against defendants, resulting in improperly-long sentences for some and shorter sentences for others. Kaiser found the combined lack of competence of prosecutors and defense counsel "completely depressing"; in a follow-on post, he wrote:

Obviously, this is really not great press for Maryland lawyers. But, the more I think about it, I think it exposes a significant problem with how we think about criminal justice.

Our system is the adversary system. The idea is that if you have two sides who both present their version of the truth, the truth will come out. Yet, in the Slate article, we have a nice example of how the adversary system fails.

Whether it fails because lawyers are lazy, or not bright, or not motivated is kind of irrelevant. Lawyers are missing things when it comes to sentencing; what does it say about the error rate for these same lawyers when it comes to what happened in the underlying crimes?

At the a public defender blog, Gideon was critical of Chief Justice Roberts' dissent from a denial of Cert. which let stand a Virginia ruling that anonymous reports of drunk driving require other probable cause before a stop may be made. Roberts wrote that drunk driving is different from many other crimes: "Drunk driving is always dangerous, as it is occurring. This Court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances." Gideon was dismissive:

Chief Justice Roberts essentially argues that anytime police receive an anonymous tip that someone is driving drunk and they find that person, they should be able to pull them over and conduct an investigatory stop.

....

I don’t know why he chose to dissent in this case, but one can suspect that perhaps his whole intention isn’t really to distinguish between drunk driving and other offenses, but rather to do away with that pesky [Florida v.] J.L. case altogether.

Either way, good thing he was all alone in his dissent.

Scott Greenfield was also somewhat dubious about the Chief Justice's intentions and the merits of his argument:

Is it true that the "imminence of danger posed by drunk drivers" is worse than others? Worse than someone with a gun pointed at another person's head? Worse than an armed robber or carjacker? It may be true that drunk driving is always dangerous, but it fails to address the question of whether anyone is, in fact, driving drunk. Yet Chief Justice Roberts, joined by his associate Scalia, is prepared to waive away the inherent absence of credibility in the anonymous tip, long known to be a worthless cause to interfere with an individual's constitutional right to be left alone in the absence of verifying evidence, to permit law enforcement the authority to act immediately.

Why? Because drunk driving is different.

....

It is a tragedy when an innocent person is struck down by a drunk driver. It is a tragedy when an innocent person is struck down by a bullet. It's a tragedy when any person is harmed. The family of a crime victim takes no comfort in saying, "well, at least she wasn't killed by a drunk driver."

Some believe that there is a calculated campaign to manufacture fear of particular crimes to whip the public into a mindless frenzy, willing if not demanding that the government take away their rights to stop the scourge. This was largely accomplished during the war on drugs, and then the war on terror. Is it's replay in the war on drunk driving nothing more than an example of a tried and true tactic, working its way through our criminal law until there's an exception for everything?

Meanwhile, over in Britain, illegal filesharing has found an unexpected champion in MI5, the U.K.'s internal security agency. Geeklawyer reported that MI5 wants to curtail efforts to cut off internet access for illegal filesharers, as that would drive them to alternate access points (anonymous routing and encrypted connections, for example) and the more widespread adoption of such access would make domestic intelligence gathering more difficult. He noted that:

This is a classic example of the law of unintended consequences. One bunch of government sleaze bags (Peter ‘Pink Mandy’ Mandelson) want to make political capital but in doing so it hampers another bunch of government sleaze bags also looking to make political capital: MI5 looking for ‘Product’ (in spook jargon) to sell to ministers.

How lucrative is that "market"? According to Cory Doctorow, "terrified London cops" spend more than £9 Million annually to gather surveillance information on non-violent protestors. Reporter Matt Salusbury recently discovered the depth of information gathered on his own activities:

I was shocked and a little afraid when I first noticed the police taking photos of me on demonstrations, back in 2000. There were police officers outside public meetings and benefit gigs too, in uniform, photographing and seemingly taking notes on my arrival and departure. I wondered why were they gathering all that information on me, just for showing up to the occasional demo. More disturbingly, what were they doing with all that data?

After two Data Protection Act requests to the police, I'm bemused rather than outraged to discover 17 extant entries on me in the Metropolitan police's Crimint (criminal intelligence) database. I feature in the database because I was "seen" or "observed" at various public events. In Crimint's most recently recorded entry on me in 2007, I was stopped and searched approaching an arms fair protest that I was reporting on, and found to have my press card on me. There is no suggestion in any of my Crimint reports of any remotely criminal activity.

Raymond Nimmer discussed the concept of an implied license in online postings, as affected by the recent Parker v. Yahoo!, Inc. case:

Implied licenses in law arise only in narrow circumstances and, then, only within narrow limitations. When created, they are typically subject to being revoked at will. Having posted works online does not preclude the copyright owner from rescinding that permission, in which case, subsequent use is infringing.

....

The policy tension here entails a conflict between rights owners who desire to retain control of their works, while still enjoying the benefits of online systems, and those who desire an Internet environment in which information is free, interrupted only in clearly stated rights-based limitations. Inevitably, law and practice will reach some balance between these. But some courts push too far favoring an environment in which property rights are not effectively maintained.

[The Parker] ruling requires that a copyright owner affirmatively give notice or use technological controls to prevent copying or lose the right to preclude at least this type of copying. But the source of the obligation to take affirmative steps lies in the court’s view that search engines are a structural part of the Internet and that rights owner’s must modify their conduct to accommodate the commercially profitable business that runs the search engines. That is wrong.

It is a tradition in U.S. contract law that mere silence does not generally constitute acceptance. So also in copyright law. But silence and inaction here was found to establish a quasi-contractual license. Parker inverts the meaning of property rights. It reduces the need for the search engines to negotiate permission from rights owners, but at the cost of control that otherwise would be vested in the property rights owner.

One unpleasant reality of life online, the "troll", was considered by a couple of prominent legal bloggers this week. Scott Greenfield spoke of a "Troll Tax":

An easy way to address the troll is to stiffen one's resolve and enjoy the magic of the delete button. You do not owe any commenter a forum to spout, no matter how much they believe they are entitled or how strenuously they demand their right. Remember that in the troll's world, they are the center of the universe. Your blawg is all about them. This is one of the reasons that they have no life outside of the internet. Their social skills tend to be lacking, and their grasp of their relative role in society is weak to nonexistent.

Many blawgers find it very difficult to delete comments. It runs against our grain of allowing free speech and expression, and makes us feel a little weak in our inability to let the negatives fly and confront them head on. It's a form of online machismo, like walking away from a fight. It smells of cowardice.

Get over it. There are millions of people out there, far more than anyone can fend off even if they were mere ants. Eventually, they will swarm you and, itty bitty bite by bite, eat you alive. To spend your time fighting with each and every one of them is unproductive, and likely futile. Besides, this isn't a fair fight, since the troll isn't interested in considering new thoughts but in getting you to pay attention to him. You cannot win with the troll.

....

It won't stop trolls from existing, from coming around, from bothering serious and thoughtful people. But it will prevent you from letting the troll dictate your efforts so that you can spend your time on matters more meaningful to you.

Norm Pattis touched upon a topic which has been widely-debated in the legal blogosphere many times, prohibitions against anonymous commenting, in describing his own struggles with abusive commenters, particularly in connection with his recent posting concerning the Trial Lawyers College:

Until recently, I published virtually every comment I received, anonymous or not. In the past week, I have become more selective.

....

I may well elect a policy against publication of anonymous posts, but I am not there yet. I do reserve the right to reject posts I don't understand, or that I think reflect the sort of rage best left to a psychiatrist. If you don't like it, don't read.

Before one decides how best to deal with the Troll Tax or whether to require his commenters to identify themselves, he must first write something that's worth commenting upon. If you boil down Greenfield's "Definitive Top 10 Rules for Successful Blawging & Twitting", that's what it comes to — be knowledgeable, be topical, be thoughtful, and be interesting; it amounts to a very commonsense approach to something which many paid consultants would have you believe is so complex that you need paid consultants to guide you through it. As my grandfather once advised me, however, common sense isn't especially common.

One blogger who needs no guidance from anyone is Jordan Furlong. He reported this week that the Association of Corporate Counsel (of which I'm a member) has announced that it will create a ratings system for law firms. This is all well and good in an internet-powered age of informed consumers, but Furlong has reservations about two aspects of the ACC's plan in particular — its decision to make the ratings accessible only to the organization's members rather than providing them also to the rated firms, and the planned use of anonymous ratings and comments. Furlong suggests that the latter decision will skew the results of the ratings and diminish the value of the ratings system overall:

Reviews by themselves are just opinions — they only become useful when you know something about the reviewer, when you can critique the critic. That’s the real benefit bestowed by widespread online access: not the power to evaluate, but the power to evaluate those doing the evaluating, to go behind the judgment to the judges. If you can’t do that – if you don’t know who’s saying great or terrible things about a given lawyer — then you can’t derive much value from what’s being said. People tend to be a lot more circumspect when their opinions are accompanied by their identity.

But the question of anonymous lawyer ratings points up an even larger issue — the fact that clients’ growing power needs to be matched by an equivalent acceptance of responsibility.

....

It’s not so easy to rate a lawyer when your name is attached to the rating, and it’s not so easy to complain about intransigent outside counsel when the question of your own transigence is brought into play. So while it’s true that it’s becoming a lot harder to be a lawyer, I’d also argue that it’s about to become a lot harder to be a client.

Finally this week, I'll write about yet another Scott Greenfield post. Why not? He's one of the best legal bloggers around and he's told me that every time I link to him, an angel gets its wings. Anne Reed linked to a very worthwhile post written by "a high-functioning autistic", discussing her recent jury duty experience. She offered some thoughtful advice for other potential jurors with conditions similar to hers and gave a frank assessment of her own limitations and her concerns that those limitations would prove damaging to her role as a juror:

Would being a juror be something interesting? Sure, I personally think it would have been cool to serve on a jury. But not at the cost of misconstruing the wrong verdict. I, along with, I'm certsin, other people on the spectrum, have a myriad of problems, and in a trial setting it can become glaringly obvious. My own main issues include a difficulty in comparing nuances and social cues, as well as paying attention without my mind wandering off to other completely unrelated subjects (such as anime...), both of which impede on the function of a juror, which is to be an unbiased decider of the verdict. Or, me just wanting to not be sitting in the courtroom for whatever reason might compell me to leave (yes, I still have problems sitting still and will still rock in my chair, albeit rarely). I'd very likely have trouble discerning truth from fiction and would be a not-so-great or even disruptive juror.

Greenfield applauded her critical self-assessment but cautioned that others may not be so critical and the right to a fair jury trial requires that jurors be capable of serving effectively:

I admire her frank recognition of her strengths and weaknesses. The problem, as noted, is that the weaknesses, the difficulty with non-verbal communication, difficulty processing figurative speech, distractability, are beneath the surface. She knows this about herself, but there's a very good chance that it would never be notable during voir dire.

To her credit, she emphasizes throughout her discussion the need to tell the court and attorneys of her condition, although her purpose in doing so is less to inform them of a gap in her qualifications to sit than to be a self-advocate for her needs and accommodations. Self-advocacy is an important aspect of dealing with autism; Unfortunately, it's as much to serve her needs as fairness to the defendant.

Secondarily, while the author appears to have a firm understanding of her own issues and deficits, it's similarly problematic that many high-functioning autistics will view themselves as more capable than they truly are. Self-assessment is not merely unreliable, but to a person who has spent a great deal of their effort in overcoming challenges, the belief in their ability to do whatever they want to do is a strong incentive to deny their limitations. It may be critical to success in some ways, but it may well cloud their self-image of their capacity to serve as a juror.

....

While avoiding jury duty is nearly a national pastime, some people want to serve, seeing it as a fascinating opportunity to participate in an important civic experience. It's wonderful that they feel this way, but it similarly lends a reason to minimize the problems they might face in fulfilling their obligation.

The typical question asked, even if a potential juror was to approach to tell the court and lawyers that they are a high-functioning autistic, is whether that will impair their ability to serve. If the person wants to be a juror, the answer will likely be "no, it won't." Holding a person's life in your hands isn't a game, a fun way to spend a few days for those who want to play. We don't try cases so that jurors can enjoy the experience.

As a long-time supporter (well before it became fashionable) of people with an autism spectrum disorder and cognitive challenges, and one who has spent an enormous amount of time and energy trying to get others to recognize that these are human beings, entitled to enjoy and participate in everything life has to offer, it's difficult to find myself on this conceptual ledge, a place where I'm forced to conclude that autistics shouldn't go. But their right to a wonderful life must give way to a defendant's right to be judged by a jury without any impediment to fair and sound verdict.

As I'll be away next week, there will be no Round Tuit post next Wednesday. So, instead of coming here to read capsule summaries of every post Scott Greenfield writes over the next few days, you are encouraged to go directly to his Simple Justice blog and cut out the vacationing middleman. A few wingless angels can certainly wait until I return. I'll be back the Wednesday after next. Probably.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., FreeHugsCampaign.org, the University of Southern California ("Piss Christ" by Andres Serrano), and Paris Odds n Ends Thrift Store.

I'm an optimist. I'm looking forward to the Great Elation and the Great Progression.

2009-10-27T17:00:00.000-07:00

Stephen Seckler hosts Blawg Review #235 this week at his Counsel to Counsel site. Published this past Monday, the 80th anniversary of the stock market crash in 1929 which precipitated the Great Depression, one might expect that Seckler's post would not be a heartwarming, uplifting experience. He focuses on the current economic downturn, the "Great Recession", and explores how it has altered the practice of law, perhaps permanently. He notes that BigLaw has taken and will continue to take things on the chin, smaller firms should use their nimbleness to gain in trying economic times, and lawyers in any state of employment or unemployment can find support and guidance in social media. Overall, it's a good overview of a period of fiscal turmoil which has affected our profession greatly and may leave change for the better in its wake, along with a considerable amount of destruction. Eric Turkewitz, whose past Blawg Reviews have been strong contenders for Blawg Review of the Year awards, hosts Blawg Review #236 at his New York Personal Injury Law Blog next Monday.

TGIS: Thank God It's Schadenfreude! (242)

2009-10-23T07:15:00.000-07:00

This week's joy in the misfortune of others comes courtesy of Reuters (from Thursday, October 22; link good at time of posting):

A Sicilian builder transferred from prison to house arrest tried to get himself locked up again to escape arguments with his wife at home, Italian media reported Thursday.

....

[Santo] Gambino went to the police station and asked to be put away again to avoid arguing with his wife, who accused him of failing to pay for the upkeep of their two children.

Police charged him with violating the conditions of his sentence and made him go home and patch things up with his wife.

[Previous TGIS]

A Round Tuit (6)

2009-10-21T12:00:00.000-07:00

There was an intense period of navel-gazing in the legal blogging world this week, as the ABA Journal's "Legal Rebels" project hosted "24 Hours of Rebels". Over two twelve-hour periods, the site posted twenty-four essays and events highlighting areas where the legal profession may (or should) change in the coming years. I won't attempt to recap each of the postings because a) there are two dozen of them and only one of me; b) the 24 Hours of Rebels site doesn't look like it's going away anytime soon; and c) frankly, some of the posts were somewhat weak. Notwithstanding, there are several essays which I thought were worthy of particular attention.

Jordan Furlong wrote that lawyers and law firms no longer run the show; clients, particularly large corporate clients now control the terms of their engagements:

Clients, especially the corporate and institutional kind, are stronger and more sophisticated than they’ve ever been, while even consumer clients are walking into lawyers’ offices armed with information obtained free from Google Esq. They’re confident, they’re demanding, and they expect full access to continuous information about their matter and its cost. The day of the dependent client is ending.

He notes that many nontraditional legal services providers, including outsourcing firms in India and elsewhere, are now viable options for savvy clients. He's not pessimistic about the changes for lawyers generally; only for those who fail to adjust will be left behind: "Lawyers can thrive in this environment only if we shift the focus from ourselves to our clients — and if we shake off this odd idea that we’re entitled to anything by virtue of our membership in the bar. We don’t run this show anymore. We’re only a part of it, one set of providers among many."

Richard Susskind struck a similar note in his essay, focusing on the efficiencies firms need to achieve to remain competitive in this new environment:

Law firms face two challenges in these difficult times. The first is to steer their businesses through the short-term difficulties of the next 18 months or so.

There are no magic answers here. The best will control costs without incapacitating their practices and will invest in determined and focused marketing.

The bigger challenge, however, is the long term, when the recession recedes. I advise that, looking across a 3-5 year time frame, each business unit within a firm should currently be subjected to stress testing – a formal evaluation of how it can face the pressures the market will bring. Some may not withstand the scrutiny and may be seen as terminally threatened by new developments. Others will find opportunities for new and exciting lines of legal business. Either way, it is as well to know now.

If Furlong is correct that new realities mean that less of the traditional legal market is allocated to traditional legal providers in larger firms and Susskind is correct that only the most efficient of those firms will survive (or may not, despite their newfound efficiencies), the inescapable conclusion is that the traditional route into traditional legal practice — law schools — needs to fundamentally change as well. Mike Semple Piggot, who recently interviewed Susskind for his ongoing College of Law podcasting series and Furlong at his Insite Law Magazine, discussed the current disconnect between law schools and the legal community and the unsuitability of many law graduates for practice, especially in this changed climate. He wrote:

I fear, however, that the over supply problem is now reaching a point where many students going into law have absolutely no prospect of practising law , not because of the lack of work or an oversupply issue but, because they do not have the intellectual ability or other qualities needed by law firms and they are, therefore, unemployable ab initio. This raises quite demanding moral issues. The Bar Standards Board in England & Wales tried to address this issue, not by placing a cap on numbers entering the profession, but by requiring prospective barristers to sit an aptitude test. This was not acceptable to our Office of Fair Trading. It was deemed anti-competitive.

The solution now being looked at is to make the Bar examination more difficult, not at the point of entry, but at the point of exit. It will be more difficult to pass the examination. This is, in my view, the right policy – for it is not anti-competitive to demand high standards from prospective members of the profession and has the added benefit of raising the standard of young lawyer coming into the market and that can only be of benefit to the client end-user and the public interest.

....

[P]erhaps we need to address the issue of the oversupply of unsuitable candidates and focus attention on our law schools for taking on students who have little chance of success. It is not good enough to simply cite market forces and freedom of choice. I believe that law schools now have a moral duty to be very clear in their warnings to students about the realities of the profession and should be under a duty to assess, more closely and with reasonable care, the chances of each student enjoying a reasonable prospect of getting work as a lawyer or paralegal afterwards. I am not suggesting that law schools act as formal or official gatekeepers, but I do suggest that be under a legal duty to give a very fair and objective assessment of aptitude and a clear unequivocal health warning about the job market before taking the student on.

....

What worries me is the possibility that law schools, both public and privately owned, are attracted by the very high revenues and are taking on students who have no prospect of success. Perhaps recruitment of law students by law schools is moving dangerously close, morally, to a position – with students of lesser ability – where they are, in effect, saying the legal education equivalent of – ‘We supply you with drugs/arms, but we are not responsible for what you do with them?’ This cannot be right nor go on unregulated.

While Semple Piggot's focus was on the legal education system in the United Kingdom, his counsel is equally valid — if not more so — here in the United States, where despite the downturn in the legal economy, it seems that not a year goes by without a half-dozen or so new law schools opening their doors to hundreds of new victims. At its heart, as Semple Piggot notes, the question is one of professionalism. Students who lack the skills to perform as legal professionals should not enter law schools and law schools should not graduate them; firms must constantly refocus their efforts on serving the needs of their clients and, more broadly, fulfilling the highest standards of legal professionalism, by hiring and training only qualified practitioners and seeking efficiencies in the delivery of high-quality legal guidance to their clients (to name just two duties). Scott Greenfield, who declined an invitation to participate in the "24 Hours" project, felt that in reimagining and redirecting legal practice, professionalism was given short shrift, particularly by Susskind:

Disaster! We will all be shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom. While I've little doubt that the Biglaw pricing structure, internally absurd as it was, will change, it's not because we need to take the professionalism out of the law, but because it had grown to ridiculous proportions.

....

Had Susskind simply argued that lawyers have exacerbated their financial disconnect from clients by their refusal to consider, integrate and use available technologies to improve their performance and reduce their costs, I would be a fan of his too. Anything that enhances our delivery of excellent legal services to clients, particularly if it reduces the cost of legal services, is valuable to the profession and worthy of our interest. But that's not what he's saying.

Nowhere does Susskind concern himself with competence. Nowhere does Susskind address excellent client service. Quite the contrary, he promotes cheaper cost by reduced competence and professionalism. There is no place in Susskind's future for excellence. Reduce everything to the lowest common denominator, the cheapest, fastest possible, even if it means schlock. Who cares if the legal services suck, at least they're cheap.

Bob Ambrogi's and Bruce MacEwen's (separate) essays proposed what I thought was the most revolutionary (or should that be "rebellious"?) change. Ambrogi argued that our current system of state bar membership and regulation is outdated and counterproductive; he suggested that increased standardization and "federalization" of laws, widespread de facto specialization amongst attorneys, and the importance of attorney experience and "know how" all make state-level bar membership obsolete:

Geographic restrictions serve neither the public nor the profession. They are irrelevant to a lawyer's qualifications to represent a client. Lawyers should no longer be licensed by state. Instead, the profession should adopt a single national license, one that establishes that a lawyer has the proper education, training and knowledge to engage in the general practice of law. Perhaps there should also be additional certifications by practice areas.

State bar admission is an antiquated concept that has no relevance in a digital world. It is time to retire the concept, along with the manual typewriter, dusty library stacks and the fax machine.

MacEwen largely agrees, calling identification with and regulation by state bar associations "medieval":

As a card-carrying capitalist, I believe in the virtues of states competing amongst themselves to provide favorable business environments for purposes of their choosing. Delaware has famously done it for incorporating the Fortune 500, South Dakota for credit card processors, and Nevada for gaming companies (and, time was, divorcees).

Why not incite competition among states for law firm LLC/LLP incorporations? Let firms—and their individual practitioners—choose what jurisdiction they wish to be subject to. Perhaps New York or California, or Wyoming, would decide to grant its lawyers US-wide practice rights. Full faith and credit clause, anyone?

Does this call for abolishing the role of state bar associations? Precisely. Beyond the role of attempting to perpetuate outmoded notions of territorial guild societies, what is their role?

As an Oregon-admitted attorney practicing as a Registered In-House Counsel in California for a company with operations throughout North America and significant presences in Asia, the Middle East, and the South Pacific, I can certainly appreciate the types of practice challenges of which Ambrogi and MacEwen speak. I for one would be overjoyed if a single national-level bar would supplant the fifty-one state-level bar associations. Party-pooper Scott Greenfield suggests why that ain't gonna happen and I'm disheartened to admit that I think he's probably right.

From time to time, we're given cause to wonder why some attorneys go on television to discuss legal matters they're involved with or to comment on other topics. Some aren't thoughtful enough about what they're saying, or don't convey their thoughts well on television; some seem to put their own interests and desire for wider attention ahead of their clients' best interests. Some, like David Martin, who appeared on CNN recently to discuss his former client, Cameron Todd Willingham, seem to have no conceivable purpose for their appearances on television except self-aggrandizement.

Willingham was convicted of and executed for causing the arson-related deaths of his three children; his case has received considerable attention since a magazine article suggested that modern forensic science does not support the State of Texas' contention that the fire was caused by arson. Governor Rick Perry has been on the defensive of late against charges that his state executed an innocent man. If Martin, whose performance as Willingham's trial lawyer has not been questioned, had declined to appear on CNN to discuss the case, no one would have thought twice about it. If he had opted to appear on CNN to support claims of his former client's innocence or to argue that the considerable doubts raised should have precluded his execution just as they prompt reexamination of the penalty now, no one would have questioned that. It seems somewhat inexplicable then, that Martin chose to appear on CNN not to praise his former client but to bury him. Mark Bennett noted that Martin's televised arguments for his client's guilt probably do not run afoul of applicable disciplinary rules, but wrote that not being wrong does not make this right:

My position is that a) all facts the lawyer learns in the course of representation is privileged; and b) this privilege survives the end of representation and the client’s death.

....

I’ve got to wonder why Martin would want to go on TV to run down his client. Not to defend his own honor—there is, as far as I know, no suggestion that he was ineffective in Willingham’s trial. Maybe just for the publicity? Or to help out his fellow rancher Rick Perry?

Willingham's appellate counsel, Walter Reaves, was similarly mystified:

...I am sure that his conduct is not what people expect from their lawyers - and they shouldn't expect. You don't expect your lawyer to bad mouth you, even if you didn't get along with them. Although I don't think its in the rules, as a lawyer you ought to have some duty to not damage your client. At the very least, Mr. Martin is damaging Todd's reputation, and his ability to obtain some relief in through the forensic commission. The fact that he aligning himself with Gov. Perry ought to tell you something.

The hippocratic oath for doctors says to "never do harm" to thier patients. As far as I know lawyers don't have similar oath - but certainly its implied. Clients expect their lawyers to protect them - why else would you hire a lawyer. Unfortunately, lawyers put their own interests above those of their clients.

You might say you have no duty to your client after they die. To me, that's a cop out. I consider Todd my client. and will do whatever can to clear his name. I have the same feeling for any client. I've represented some pretty despicable people, and I would never bad mouth them in public. I listened to mother when she said if you can't something good about someone, don't say anything.

Jeff Gamso allowed that Martin is "right that you don't need to believe your client innocent to provide a stellar defense," but could not find any proper motive for his televised statements — "It really is inexcusable. Really. Inexcusable." Scott Greenfield agreed with Gamso: "If Martin truly believes what he's saying to be true, his statements are the most irresponsible, unethical, improper I have ever heard from the mouth of a criminal defense lawyer. Outrageously wrong. Utterly disgraceful." He continued:

There is no ethical duty of perpetual loyalty to one's client. A lawyer need not argue the client's innocence after his representation has ended. But that doesn't mean that the alternative is to smear his client, to argue his guilt, to expose his confidences, either. If Martin so desperately wanted his moment in the sun, then his options were limited to speaking in his client's best interest or discussing issues surrounding the present circumstances. There was no option of exposing communications, investigations, thoughts that existed solely within the defense. Martin had no right to offer that up in exchange for the opportunity to go on TV in his Texas rancher hat and tout himself at the expense of his client.

Lawyers weren't the only attention whores whose attention whoring received unwanted attention this week. It was widely reported that cable network TLC is suing "Jon & Kate Plus 8" father Jon Gosselin for breaching his agreement with the program's producers. Eriq Gardner's post was the first place I saw the news and his description of the claims is a good one. He noted that the claims center on Gosselin's alleged violations of the morals clause in the contract and the exclusivity provisions; the former from his very-public womanizing and the latter from his recent attention whoring on other networks. The program has been canceled after the public meltdown of Jon's and Kate's marriage prompted a freefall in the show's ratings. One might easily surmise which of the two is the more egregious sin in television executives' eyes.

Gosselin had some competition this week for father of the year honors. "Balloon Boy" Falcon Heene's father, Richard Heene, faces charges for allegedly orchestrating a hoax involving his young son and for naming him "Falcon". The hoax, meant to secure the family a reality TV gig, fell apart when Falcon blurted out on the Larry King program that it was done at his father's behest "for the show." Oops. At the Popehat blog, Patrick suggested that the "Balloon Boy" matter is a case study in why people who commit criminal acts should simply shut up:

Mistake number one. Reporters and the media are not your friends. Assuming that the Heenes are innocent of filing false reports and contributing to the delinquency of a minor, the ghost of Richard Jewell could have told them all about what can go wrong when ordinary people in strange situations talk to reporters.

....

Mistake number two. Assuming, again, the Heenes’ innocence, it was should have been pretty clear by Friday morning that the police weren’t calling because they wanted to find Falcon. He’d been on Larry King the night before. Yet, like lambs on a television reality show about the meat industry to the slaughter, the Heenes did not answer with the only response that makes sense:

"Gosh, I’d love to talk to you, but my lawyer won’t let me. Why don’t you call him. His telephone number is 555-1212. Thanks and goodbye!"

This week, a "mommyblogger" writing under the name "Nic" at the My Bottle's Up blog described in heart-wrenching detail how TSA agents at the Atlanta airport had physically separated her from her toddler-age son for an extended period during a seemingly-unreasonable search of her person and belongings: "I began to black out. I knew I was having a full on panic attack. I feared passing out.... It felt like hours... days even. My son was gone." The entire incident was horrible, unforgiveable... and completely untrue. That same day, TSA spokesman "Blogger Bob" responded to the allegations on the agency's blog:

Two things went through my mind after reading her post.
1. As a father of two small children, I empathized with her about the alleged circumstances.

2. As a TSA employee and former TSO, I felt it could not be true -- especially since our policy is that TSA will not ask parents to do anything that would distance them from their children during the screening process.

The agency didn't just deny the allegations, however; they posted raw CCTV footage from nine different cameras which had recorded the events and which put the lie to Nic's story. Her follow-on post, titled "my apologies" was more of an acknowledgement of the evidence against her than an acceptance of it:

to address the video... yes, i agree with many of you, my story differs from the one shown on tape....

in the video, it looks as though my son is playing happily in his stroller while i am being searched with a wand. obviously this is the big discrepancy with my story, since he was not in my sight at that time, and one that i too am thoroughly looking into. neither of the two phone calls i placed while seated in security are in the video either. what is shown in the video is incomplete as it leaves out when the security agent took my son to a separate area and out of my sight. this matter is one that is being handled between my family and the TSA.

i have no further accusations of the TSA, and ultimately who to believe is left up to you. there is nothing more i can do with regards to that.

"No further accusations" apart from the allegation that the TSA has doctored the video footage, that is. Why would someone concoct such a story and persist with it after it's demonstrably false? Another mommyblogger, Sara at the Suburban Oblivion blog, suggests an answer from Nic's own Twitter posts during the day after the alleged incident — tweets that she could "get paid if someone picks up my story," that the "full story can't be posted on my blog... publishers want it," and that she "may pitch it to publications and go waaaay out with it." Sara wrote that "I understand compassion, I understand wanting to protect your own, but I also understand the damage done to the credibility of the blogging community by bullshit publicity stunts like this. I'm not trying to imply anything, but when you want to be taken seriously, you might not aught to be posting stuff like this on the internet less than 24 hours after the incident."

Obama "Hope" poster artist Shepard Fairey has been locked in a three-way copyright infringement dispute with the Associated Press, which claims ownership of the photo on which it argued Fairey based his work, and the photographer who took said photo and who claims that it is his property rather than AP's. To this point, Fairey has claimed that the AP photo is not the one he used to create the poster; now, he admits that he lied about that and altered and manufactured evidence to support his previous denials. Bruce Boyden continued his excellent coverage of the ongoing dispute:

[I]t was a minor issue; certainly not worth fabricating evidence over. I looked at this issue more closely in a blog post in February, shortly after the filing of the complaint, in which I compared overlays of the poster on the two photos and concluded that Fairey’s claim was "highly implausible":
Perhaps Fairey has just had a memory lapse. But if not, and he's engaged in a little retroactive wishful thinking, it’s not for very much benefit; I think the strongest arguments in his favor have nothing to do with the framing of the original photo. Furthermore, to the extent a judge or jury comes to the same conclusion, it just plain looks bad to have a misstatement like this in the complaint.
That's true—and it looks even worse if you destroy evidence to cover it up. And it looks even worse than that if you manufacture evidence. All for very little benefit. Fairey's behavior here reminds me of insider trading cases where some billionaire risks prison in order to avoid a loss of $20,000.

Michael Masnick wrote that Fairey "harm[ed] his case for no good reason.":

Fairey still has a very strong fair use claim -- which is entirely separate from the question of whether or not Fairey did something incredibly stupid here. Even if he used the image the AP claimed he did (which he now admits), it still seems like this is an obvious case of fair use. But destroying evidence and lying -- especially when there was no good reason to do so -- just harms his credibility and makes it that much more likely that he'll lose his case not for any legitimate reason, but because of his own separate actions in dealing with this case. There are important fair use issues at play here, and Fairey just made it that much harder to maintain the high ground.

Dave Rein, writing at the aptly-named Owners, Borrowers, and Thieves blog, suggested that more than moral high ground may have been lost with Fairey's deception:

One of the four fair use factors analyzes the amount of copyrighted work taken. When the Obama Hope poster is compared to the picture that Fairey now confesses to using, this prong may now weigh against him where it may have helped in in the other picture.

But beyond the simple analysis of the factors, it should be remembered that the fair use defense is an equitable rule. Fairey's confessed dishonesty undercuts his ability to ask for equity, i.e. fairness. In other cases, the courts have not looked kindly on those accursed of infringing a work who denied that he or she used the accuser's work and then later tried to invoke the fair use defense. Further, should this case go to trial, the AP will likely be able to tell the jury that Fairey initially lied about the picture and that he lied because he thought that he would lose if the actual photograph was known. Much of the jury sympathy that Fairey might have had has likely been lost.

While the famous Shepard Fairey is unlikely to run from the civil courts or the court of public opinion even after his admissions this week, less-famous folks occasionally run from criminal courts rather than face the possibility of an adverse verdict. A Public Defender blogger Gideon wonders why it doesn't happen more often and whether he'd have the strength to face the music were he in his clients' position:

How, I asked myself, did they have the courage to step off that elevator and into that courtroom, knowing full well that they may never walk out again into those hallways and out those doors?

....

Everyone knows what the consequences are of going to trial and losing. It’s called the trial tax for a reason.

I’m more convinced than ever that I’d never take that risk. That I’d probably plead to something I didn’t do to spare myself the agony of the Russian roulette that is a jury trial.

I’m sure there are many more like me. Which means there are many, many more innocent people in jail than we currently estimate.

....

I don’t think I’d have the gumption to step off that elevator to hear a jury’s verdict. I’d probably run.

Following his podcast with Charon QC concerning the Trafigura "superinjunction" controversy (about which I wrote last week), Carl Gardner produced an excellent series of posts elaborating on aspects of the matter. He argued that it was premature to deem the injunction "unlawful", as some have and clarified that the parliamentary privilege discussed by some commentators applies only to members of parliament, not to the press. He wrote:

I’ve no problem with superinjunctions in principle – there are a range circumstances in which the publication of the fact of an injunction or the identity of the applicant might defeat the entire purpose of an injunction. An example would be, for instance, if a PLC successfully injuncted a story alleging that it was insolvent – regardless of the truth of the story, the PLC might well be brought crashing down anyway if “the markets” knew it had got such an injunction. If that PLC were a bank, say, then the financial system could be at risk if it were known even that an unidentified bank had sought such an injunction. So superinjunctions do make sense in some circumstances....

What’s obviously problematic is that such an order should extent to reporting Parliamentary proceedings. I doubt very much that the judge intended this order to have such a wide effect: what I suspect has happened is that the order merely prevented discussion of the privileged document, and that Carter-Ruck unwisely sought, in lawyer-to-lawyer discussions, to interpret that as extending even to a report of the Farrelly question. In my view that was far from reasonable, and Carter-Ruck should have sought to vary the terms of the order if they wanted it to extend so far.

In another post, he reiterated his view that superinjunctions are sometimes justifiable:

What I’m most afraid of, though, is that this affair will leave people with the idea that superinjunctions are always, and necessarily a bad thing, and that anyone interested in protecting free speech should be against them. I’m as fiercely in favour of free speech as anyone: but very few people believe in absolute free speech, and nor do I. I think there are some limited circumstances in which other important rights can outweigh the right to free expression, and I think superinjunctions have a place as being in some circumstances absolutely essential when nothing else will protect those rights.

....

There may well be too many superinjunctions – there probably are – and one did not seem appropriate from what we know of the Trafigura affair. But don’t let’s run away with the idea that they’re never ever, ever, ever justified. Superinjunctions have a place – and can on rare occasions be essential to protect important rights.

Since Gardner's posts, the Guardian newspaper, which was subject to the Trafigura superinjunction, published an eye-opening annotated version of that injunction, providing astonishing insight into the mechanics of such an order.

Finally, Lyle Denniston offered an outstanding analysis of the upcoming Kiyemba detention case. He noted:

Kiyemba is a case that at least four Justices (and probably more) wanted to hear, despite strong pleas from the government’s top lawyer, Solicitor General Elena Kagan. Urging denial of review of the plea of Chinese Muslim (Uighur) detainees to end their captivity, Kagan told the Court in May: “Activity in the political Branches on the disposition of detainees at Guantanamo Bay generally and [the Uighurs] particularly, including sensitive diplomatic undertakings, provides all the more reason for the Court to deny review.”

The Court’s choice to pursue the case anyway could not have been welcome news in the political Branches: the Court has entered the detention discussion repeatedly since 2004, and the end result has most often been a significant loss for what the other parts of the government wanted to do. The coming decision in Kiyemba could well turn on a constitutional question, just as did the Court’s ruling in 2008 that brought the most sweeping defeat yet for government detention policy – Boumediene v. Bush. Kiyemba, in fact, is a sequel to Boumediene, testing what detainees might expect if they successfully challenged their imprisonment under Boumediene.

....

Even before the briefing schedule starts to unfold, one question arises: will the government move the case beyond the Court’s reach by finding a place where the 13 Uighurs can be re-settled, thus making “moot” their plea for court-ordered release? (The Bush Administration and then the Obama Administration found ways to end major Supreme Court test cases on presidential detention authority of individuals captured inside the U.S. by charging them with crimes and moving them into the regular civilian courts, out of indefinite detention in military custody.) Efforts have been made to get another country to accept the Uighurs, but those endeavors seem presently to be stalled.

Even assuming that such a transfer can be worked out between now and final action by the Court in their case, the fundamental question of federal judges’ authority to provide an actual remedy in constitutional habeas cases involving wartime detainees will continue to arise. A significant number of cases on that very issue are pending in the lower federal courts, and many definitely will be making their way to the Supreme Court. The D.C. Circuit Court has started putting some of those cases on hold, pending the outcome in the Supreme Court of Kiyemba, but that could be only a temporary delay.

At its core, then, the three-way government contemplation in coming months of the law of detention is not so much a polite minuet as it is a serious rivalry between energetic branches determined to protect their own prerogatives. If the rivalry stays focused on constitutional interpretation, though, the Justices — with the “power and duty to say what the law is” — may well have the last word.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., boston.com/The Boston Globe, gillicious, and Paris Odds n Ends Thrift Store.

A Blawg Review Sherpa gives us a [200-year] present.

2009-10-19T12:00:00.000-07:00

Blawg Review Sherpa Victoria Pynchon hosts Blawg Review #234 at her Settle It Now Negotiation Blog site. She writes about the concept of a "200-year present" wherein we are affected by and affect the lives of the various generations which coexist with us. It's a thoughtful premise which works well in encapsulating the legal blogosphere's sometimes complicated interactions and webs of influence.

Week after week, legal bloggers write about (and Blawg Review reflects) conflicts within society generally, within the legal world more specifically, and within individuals very specifically. Pynchon discusses the various dispute resolution techniques we and our ancestors and descendants have used and memorializes the changes her own 200-year present has witnessed.

Highlights include a few notable applications of "tit for tat" game theory, celebrating legal rebellion and rebelling against the Rebels, and finding the nadir with Nazir as a court condemns the "most oppressive motion ever presented." Stephen Seckler hosts next week's Blawg Review #235 at his Counsel to Counsel site.

TGIS: Thank God It's Schadenfreude! (241)

2009-10-16T07:00:00.000-07:00

This week's joy in the misfortune of others comes courtesy of the ABA Journal (from Tuesday, October 13; link good at time of posting):

A Georgia federal judge has fined California lawyer Orly Taitz $20,000 for her litigation tactics in a suit questioning whether Barack Obama is a U.S. citizen.

U.S. District Judge Clay Land said he had no reservations about sanctioning Taitz, the Cincinnati Ledger-Enquirer reports. “A clearer case could not exist; a weaker message would not suffice.”

....

“The absolute absence of any legitimate legal argument, combined with the political diatribe in her motions, demonstrates that Ms. Taitz’s purpose is to advance a political agenda and not to pursue a legitimate legal cause of action,” Land said. “Rather than citing to binding legal precedent, she calls the president names, accuses the undersigned of treason, and gratuitously slanders the president’s father....

“Counsel’s wild accusations may be protected by the First Amendment when she makes them on her blog or in her press conferences, but the federal courts are reserved for hearing genuine legal disputes, not as a platform for political rhetoric and personal insults.”

[Previous TGIS]

A Round Tuit (5)

2009-10-14T12:00:00.000-07:00

On Monday, the leading British newspaper The Guardian reported that it had been gagged and could not report on Parliamentary proceedings:

The Guardian has been prevented from reporting parliamentary proceedings on legal grounds which appear to call into question privileges guaranteeing free speech established under the 1688 Bill of Rights.

Today's published Commons order papers contain a question to be answered by a minister later this week. The Guardian is prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found.

The Guardian is also forbidden from telling its readers why the paper is prevented – for the first time in memory – from reporting parliament. Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.

The only fact the Guardian can report is that the case involves the London solicitors Carter-Ruck, who specialise in suing the media for clients, who include individuals or global corporations.

Based on that lone fact, Paul Staines, who blogs about Parliament under the nom de plume "Guido Fawkes" surmised the names of the Member of Parliament, government minister, and company involved, as well as the topic of the question. Just over an hour after The Guardian posted its enigmatic report, Guido Fawkes' Blog posted its (correct) guess and the full text of the question about which reporting had been suppressed.

That question concerned the illegal dumping of toxic wastes in Ivory Coast by a company associated with the international oil firm Trafigura. A report about the illegal dumping had been leaked to the WikiLeaks website and efforts had been made by the company to suppress the site's posting of the report. As noted by the Fawkes blog, the Parliamentary questioning concerned the effectiveness of legal protections for whistleblowers in the Trafigura matter:

Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.

Online, on political and legal blogs and on Twitter, the public outcry was swift and strong. As things continued to escalate on social networks and "Trafigura" and "Carter-Ruck" became trending topics, the firm realized the futility of its position and agreed to scale-back, but not abandon entirely, its gag order. BBC News reported these developments and noted the roles which blogs and Twitter had played in the affair. As BBC News' Nick Higham reported, "In the anarchic, anything-goes world of the internet, where freedom of speech is a frequently heard rallying cry, injunctions banning publication of anything are unpopular. This one seems to have acted like a red rag to a bull." Bloggers didn't hold back in discussing the Streisand Effect Carter-Ruck and Trafigura had caused. Jamie Sport termed the debacle the "Carter-Ruck school of viral marketing":

Marketing experts were stunned today at the success of media law firm Carter-Ruck's high profile 'gagging order' campaign, designed to generate buzz around their client Trafigura's latest toxic waste product.

....

Public awareness of the brand name 'Trafigura' leaped by around 700%, up from 0.1% market penetration the day before. A spokesman said: 'This is a great result. Nobody had heard of us or our toxic waste dumping practices until Carter-Ruck got involved. This kind of publicity is priceless!'

An industry analyst said: 'It's been a clever job, making great use of viral and self-facilitating media nodes. Brands are starting to realise that to really make a splash you need to go the extra mile, do something big and zany - Carter-Ruck's strategy of assaulting British democracy and raping the very concept of free speech delivered an incredible awareness boost.

At the center of things, as always, was Mike Semple Piggot (Charon QC), with whom I've had the privilege to write on occasion. As he and others continued their lively discussion of the Trafigura gag order on Twitter, he and former government lawyer Carl Gardner discussed the situation in considerable depth. In conjunction with that podcast, Semple Piggot wrote:

The Commons' gag order was intended to prevent publication of Trafigura and Minton in the same context. As Wikileaks notes – the Minton report released by Wikileaks has not been mentioned in the press because of a 11 September 2009 media injuction.

“To-date the UK pubic has been kept in the dark. Paul Farrelly's question is an attempt to take on the suppression issue. In the process it connected the Minton report on WikiLeaks to Trafigura, something the UK media could not, or would not do.”

“Knowing this, lawyers for Trafigura, Carter-Ruck, obtained a second, secret media injunction to prevent reporting of Paul Farrely MP's questions. That this alleged order was granted is a bold and dangerous move by the High Court towards the total privatization of censorship.”

Last night I was on twitter and, along with many others, I saw the Guardian story and tweeted about it, expressing a degree of outrage. It did not take long before many hundreds of tweeters turned to thousands and overnight and this morning Trafigura and Carter Ruck found themselves a trending topic on Twitter – even Stephen Fry weighed in, adding countless thousands more to the clamour.

Gardner summarized his views thusly:

I think some blogger’s references to the Bill of Rights 1689 is over the top – the Bill of Rights protects Parliamentary debates themselves from injunctions, not the reporting of those debates by others. But the case does raise serious questions: Parliamentary privilege means nothing if law protects MPs’ right to speak in the House, but prevents us from knowing what they say. It seems extraordinary, especially in view of section 12 of the Human Rights Act, that a court should have felt it in the public interest to prohibit reporting of a Commons question. I hope this case prompts Parliament to look closely at what further protection is needed in this area – and prompts the courts to take more care in making sure “superinjunctions” – which prevent any discussion of the fact of the injunction or of who obtained it – are granted only where really necessary.

The Guardian and BBC News noted that bloggers and Twitter users were able to do online what the mainstream media could not do — or at least did not do — in this instance. The Guardian wrote:

Untroubled by the legal restrictions which had confined the Guardian to reporting at 8.31pm that it had been "prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found", internet users quickly reported that the gag related to a question by the Labour MP Paul Farrelly concerning the reporting of an incident in which toxic waste was dumped in the Ivory Coast.

....

After several requests on Monday afternoon from the Guardian's lawyers asking Carter Ruck to alter the terms of the injunction and thereby allow publication of Farrelly's question, the gag remained in place.

But just 42 minutes after the Guardian story was published, the internet had revealed what the paper could not.

Bloggers and the so-called Twitterati tonight claimed a historic victory for the power of the internet over what they saw as attempts by vested interests to shut down freedom of speech.

BBC News reported that:

[T]he lawyers in this case clearly reckoned without the "blogosphere". In the anarchic, anything-goes world of the internet, where free speech is a frequently-heard rallying cry, injunctions banning publication of anything are unpopular.

....

Imposing injunctions on news organisations has never been a foolproof way of stopping information from leaking out. But in the old days, when the principal means of transmission was word of mouth, only a favoured few ever got to hear of it.

The digital revolution has changed all that. Anyone with a PC or a laptop or an iPhone or a Blackberry, or any other digitally-enabled device, can now discover what all the fuss is about.

On this occasion the injunction seems to have been utterly counterproductive. The Guardian obtained a High Court hearing to challenge the injunction this afternoon. But at lunchtime Carter-Ruck bowed to the inevitable, and the Guardian's website was soon running full details.

There was much focus on internet presence and community-building during the most recent Presidential elections. The political unrest in Moldova was somewhat generously called a "Twitter Revolution". The more recent mass protests in Iran were organized and sustained to a considerable extent by users on Twitter. Notwithstanding those instances of social media playing some role in important events, I think that the Carter-Ruck/Trafigura matter can be rightly identified as the first meaningful occasion where online activism was primarily responsible for effecting the national political change it sought. On Twitter, naturally, Mike Semple Piggot (as @CharonQC) summed-up the occasion: "If anyone doubts the value of twitter or the anger of people at the use of injunctions to stop responsible reporting - see #trafigura tweets"

In part, the success of this online push was enabled by the nature of its target — a gag order attempting to maintain the secrecy of a document and political inquiry. Such an order is premised upon the fact that the information in question is secret; change that fact irretrievably and the basis for the order evaporates. Though questions of liability for disclosure may remain, following disclosure, formerly-secret information cannot be made secret once again. Cats let out of bags, horses loosed from barns, toothpaste squeezed out of tubes — use whichever idiom you prefer. Blogs and Twitter may not be capable of decisively affecting national events frequently, but the nature of online communications are particularly well-suited to affect situations like these.

This week's events demonstrate the difficulty governments and organizations face when they seek to maintain the confidentiality of information relevant to public debate. Once the means of communication are no longer controlled by a relative few newspapers and television and radio stations, gag orders like the one obtained by Carter-Ruck become unsustainable. Perhaps this week has taught at least the British government that its secrecy efforts are best concentrated on a few vital matters rather than diluted and diminished to serve private interests and to chill public debate.

The announcement late last week that President Barack Obama had won the Nobel Peace Prize was met with a collective "Huh?" When last year's Peace Prize laureate, Martti Ahtisaari, was recognized "for his important efforts, on several continents and over more than three decades, to resolve international conflicts," President Obama received his award based on a nomination submitted sometime during his first week-and-a-half in office. The propriety and import of the award were widely-discussed in the legal blogosphere.

Jason Fischer minced no words in stating that "It’s official... the Nobel Prizes have lost all significance.... Now it is clearly just a leftist love fest with no real accomplishment value whatsoever." Patrick at the Popehat blog shared the opinion that the award was not merited by Obama's achievements thus far in office and suggested that Obama should refuse to accept it. He speculated about the Nobel committee's motivations:

[T]he committee has sullied and trivialized itself and its prize with this one. Obama has not furthered the cause of world peace in any measurable way, because he hasn’t had time to do so. It remains to be seen whether his policies will in fact further world peace.... Awarding the prize to Obama smacks of post-colonial paternalism, and faintly of racism.

“Here’s a pat on the head, magic negro. You’ve come so far!”

Robert Ambrogi also felt that the prize was awarded to Obama a bit prematurely but generously named Obama the "Lawyer of the (Day) (Week) (Century)".

Although most in the legal blogging and Tweeting community were quick to line up on either side of the debate about whether the award of the Nobel was merited, only Jonathan Adler seemed unsurprised by the award itself. He wrote:

Unlike some, I don’t think the award of the Nobel Peace Prize to President Obama during his first year in office is all that shocking. For many years the Nobel Peace Prize has been given as much if not more for what the committee hopes recipients will accomplish as for what they’ve already done.... [I]t only makes sense that the Committee would award the prize to a President who has adopted a more conciliatory foreign policy, is seeking to reduce nuclear weapons stockpiles, is pursuing more aggressive action on climate change, etc. These are policies the committee supports, and awarding the prize to Obama could, in their view, help ensure these policies are adopted and eventually succeed.

Roger Alford suggested other theories to explain Obama's award: "I think there are four possible interpretations of this award: (1) his achievements as President; (2) to promote global democracy; (3) as the culmination of the civil rights movement; or (4) as a symbol of the spirit of internationalism." Commenting on Alford's post, Charlie Martel suggested that "The fifth possible reason is that the Committee may be trying to influence the President to make good on his promise."

Tom Smith seems to lean toward Martel's explanation:

I think giving the prize to Obama was a shrewd move, well calculated to influence events in a direction the Nobel Peace Prize Committee would like to see. My thinking is this. Any observer of politics can see that Obama is rather a vain man. It's not an uncommon fault among world leaders. He seems to care deeply what others think of him. More than most of us would, Obama is likely to feel now that he has to live up to being a winner of the Nobel Peace Prize. He's already President of the US; now he has to live down, in an odd way, having been given this prize.

Eric Muller's take on things was more favorable to the committee and the President; Muller wrote that, "they handed Obama the prize not just because he isn't George Bush (though that surely helped), but because he represents a reaffirmation of an idea about the United States and the role that idea can play in world politics and world peace. That idea is the possibility of cross-racial, cross-"tribal," cross-ethnic, cross-religious reconciliation."

While others criticized Obama's lack of accomplishment in office or sought to find hidden messages from the Nobel committee to explain the award, a few gamely attempted to identify a few meaningful accomplishments of Obama's still-young term in office. Most of those posts seemed stretched to the point of breaking, but Diane Marie Amann's effort was a particularly credible try:

By way of a few examples, [Obama and his administration] have:
Immediately upon taking office, ordered the closure of the detention camp at Guantánamo, and labored since then to make this happen;
Simultaneously ordered an end to unlawful interrogation practices;
Reiterated a vision for a nuclear-free world and pressed for nuclear arms reduction through U.S. ratification of the Comprehensive Test Ban Treaty, strengthening of the existing nonproliferation framework, and negotiation of a new U.S.-Russia treaty....
Taken part in the 1st high-level face-to-face talks with Iran in 3 decades....;
Pledged U.S. contribution to global combat against climate change; and
Joined the Human Rights Council of the United Nations.

Let's see here. He issued an order which has yet to be carried-through (largely due to his administration's own legal efforts and procedural delays), issued another order which seems to have been carried-through, pushed for nuclear arms reduction (albeit with a stable country which isn't building up its arsenal), held unproductive talks with an unstable regime which is building its nuclear capability (and largely ignored others which are pursuing similar capabilities), promised to address (at considerable cost) a scientific problem which many scientists aren't convinced is a problem, and joined a group which has long been a bad joke and which recently condemned the lone stable democracy in the Middle East for defending itself against terrorist attacks on its civilians.

Incomplete, pass, pass, fail, incomplete, fail. If my child came home with grades like that, I can guarantee that she wouldn't be getting any awards.

Supreme Court reporter Lyle Denniston, whose work I've raved about previously, received some well-deserved time in the limelight this week. Along with fellow reporter Joan Biskupic, Denniston discussed the SCOTUS' inner workings in an excellent episode of C-SPAN's weeklong series about the Court. Bill Marler did a turn on CNN's Larry King show this week and, anticipating a touch of nervousness, he outlined his short-term and long-term recommendations to fix our food safety system. For his efforts, he was awarded the Nobel Peas Prize.

Eric Turkewitz was somewhat ambivalent about receiving recognition as a "Super Lawyer":

The company that puts out the information says the lawyers are vetted before they appear. So if we are vetted, then perhaps this really is something to be proud of?

But what kind of vetting actually takes place? Super Lawyers claims on their website that:
Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.
Of course, they never asked me to evaluate any of my peers. And I don't know anyone else that was asked to do an evaluation. They have a full page of words on their website to describe their process, but it doesn't seem very revealing to me. They have a "research department" that assigns "point values" to different criteria.

I must confess that this all seems pretty meaningless to me. If you want to know if I'm good at what I do, it seems you would have to read a brief I've written, read a deposition I've taken or perhaps watched a trial.

....

So what will I do? I don't really know yet, though putting it on my website... and then linking that "honor" back to this post showing my complete ambivalence might be one option. At least it would educate the legal consumer a bit about those that put such things on their sites or on their office walls.

Finally, arguments were heard this week in Maryland v. Shatzer, a case I mentioned previously. Diana Gillis provided an excellent recap of those arguments. Susan Bandes offered some insight into the challenges facing the Court in attempting to limit the rules established by Edwards v. Arizona without sacrificing the clarity of those rules:

The proper focus of the Miranda rules is counteracting the coercion inherent in custodial interrogation. Edwards assumes that when a suspect invokes his Fifth Amendment right to counsel, he has expressed his inability to withstand the coercive nature of custodial interrogation on his own. Shatzer invoked his right to counsel. He was not provided with counsel, but he was removed from the coercive situation. The question is whether his return to custodial interrogation 31 months later is a continuation of that coercive environment. Perhaps, as Justice Ginsburg suggested, a suspect in this situation would assume that if he invokes the right to counsel again, the interrogation will again cease. Or perhaps, as Justice Sonia Sotomayor implied, he would have no reason to believe he will ever get the lawyer he's requested. Chief Justice John Roberts began the questioning by positing the extreme version of this catch and release cycle: the suspect invokes Miranda, the police let him go, they bring him in, he invokes Miranda, they let him go, they bring him in, and so forth until he breaks down and talks.

The real stumbling block for the Court may be its desire for a bright line rule. As the Court recognized in last term's decision in Arizona v. Gant, predictability and clarity are important values, especially when crafting conduct rules for law enforcement, but sometimes they are outweighed by other values. The State and the United States resisted the pleas of several justices to articulate a bright line rule based purely on the passage of time (though they ultimately relented and suggested possible time limits.) Passage of time may in some instances ease a coercive atmosphere, but if the suspect remains in the same coercive environment, passage of time can actually exacerbate its coercive nature. Change in environment is therefore relevant, and so might be the change from pretrial to post-conviction status. In short, the Court may be headed toward a Michigan v. Mosley-type rule that requires weighing several factors. Miranda's animating principles might be better served by a more flexible test for determining whether reinterrogation amounts to the kind of badgering that leads to coerced self-incrimination.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Biology Online, Discover Magazine, and Paris Odds n Ends Thrift Store.

Perhaps it's time to crown an Emperor Norton II.

2009-10-13T12:00:00.000-07:00

Many years ago, I heard of the colorful 19th Century character known as "Emperor Norton" and his decree abolishing Congress for thwarting the will of the people. When I moved to the (greater) San Francisco Bay Area, I heard his name mentioned here and there, usually as evidence of the City's abiding love for the avant garde. I can't say that I knew much about Emperor Norton beyond this until the Popehat bloggers' tremendous Blawg Review #233 this week.

While Norton was indeed a comical figure at times, he was not made a target of ridicule by the people of San Francisco; instead, he was treated with respect and courtesy wherever he traveled in the city. As the Popehatters point out, "To the extent his subjects respected his orders, they did so because it amused them to do so, or... because they were moral and made sense. In short, Norton was that rarest of creatures: a sovereign who truly ruled with the consent of the governed."

Why this was so — whether because he was a charming person (something of a progenitor of the modern celebrity), because people generally feel a sense of personal satisfaction when extending charity to a worthy person, or because his actions were genuinely appreciated by those whom he encountered — is not entirely clear. What is clear, particularly so after reading this Blawg Review, is that Norton's words and deeds are worth considering on their merits, regardless of the Emperor's own grasp on reality.

Apart from a very insightful examination of the substance of Emperor Norton's decree, Blawg Review #233 covers the best recent legal blogging, including discussions of the lines between church and state, between bureaucracy and free speech, and between disclosure and censorship. Blawg Review Sherpa Victoria Pynchon hosts next week at her Settle It Now Negotiation Blog site.

TGIS: Thank God It's Schadenfreude! (240)

2009-10-09T07:00:00.000-07:00

This week's joy in the misfortune of others comes courtesy of the San Francisco Chronicle (via Popehat) (from Thursday, October 8; link good at time of posting):

A San Francisco murder suspect's attorney sought assurances Wednesday that he would not be arrested for arranging what prosecutors called a "blatant act of witness intimidation" involving eight suspected gang members who stood up during a witness' testimony.

....

During the first day of the preliminary hearing on Tuesday, just as a star witness was asked whether she recognized anyone as responsible for Barrett's shooting, eight reputed gang members stood up in unison, crossed their arms and stared at the witness.

The witness - a Texas woman who was in San Francisco for a conference and with friends when she saw the 1 a.m. shooting - nonetheless identified Heard as the gunman.

Prosecutor Michael Swart vociferously objected that the eight men who stood up amounted to "blatant witness intimidation."

After the hearing, the eight men were arrested on suspicion of gang-related witness intimidation. It is not clear who ordered the arrests. No decision has been made as yet on whether the men will be formally charged.

Heard's attorney, Eric Safire, acknowledged Wednesday that he arranged the incident to possibly confuse the identification by the witness.

Safire then sought assurances from Judge Wallace Douglass and the prosecutor that he would be immune from prosecution. "Before I continue, I want a representation from the district attorney's office that I'm not going to be arrested," Safire said, adding that the men were "here at my request - I motioned for them to stand up."

He said the men's arrest created a "chilling effect on my ability to represent my client." He threatened to withdraw from the case.

"I can't guarantee that you won't be arrested," Douglass said. "The district attorney can arrest who he wants."

....

Brian Buckelew, a spokesman for the district attorney's office would not rule out charging Safire. "Our office is providing no such assurance."

[Previous TGIS]

A Round Tuit (4)

2009-10-07T12:00:00.000-07:00

October means that the two best sports in America — baseball and Supreme Court watching — finally take center stage. The Major League Baseball divisional races are now complete, playoffs begin today, and the World Series (North American world only, please) follows later this month. The first Monday in October also starts the Supreme Court's term and in the past few weeks a number of sites have offered previews of forthcoming cases. Amongst the best of these are Tony Mauro's analysis of several First Amendment matters and Lyle Denniston's post covering an important Second Amendment case, one relating to the "War on Terror", and several others appealed by the Federal government.

Mauro writes (I've added case names for clarity), "Fighting for the First Amendment often makes for odd bedfellows. In pending cases for the coming Supreme Court term, free-speech advocates find themselves on the side of corporations seeking to influence elections [Citizens United v. Federal Election Commission], creators of videos depicting animal cruelty [United States v. Stevens] and, oh, yes, bankruptcy lawyers [Milavetz, Gallop & Milavetz v. United States]. All in a day’s work." He also touches on Salazar v. Buono, which concerns a Christian cross placed as a VFW memorial on what was formerly Federal land in the Mojave Desert.

Denniston provides an excellent run-down of a number of cases the Court has agreed to hear this term. Amongst these, a couple caught my eye. McDonald v. Chicago will determine whether the decision in District of Columbia v. Heller will apply to state, local, and municipal governments as well as the Federal government and provides the Court a rarely-used opportunity, as Denniston puts it in another post, to "grow" a Constitutional right. In Samantar v. Yousuf, the Court will consider the Alien Tort Statute of 1789; Denniston writes:

The Court, faced with an increasing number of cases filed in U.S. courts under a 1789 law seeking damages for wrongs done in foreign countries, agreed to decide whether that law allows such a lawsuit only against foreign governments, or against foreign officials who took action in their official capacity. This case will draw the Justices into an examination of atrocities in the Somali government in the 1980s and 1990s. A former top official of the Somali regime, Mohamed Ali Samantar, is seeking to head off a lawsuit blaming him for torture and other atrocities in Somalia in that time. He argued in a petition (Samantar v. Yousuf, 08-1555), that the Alien Tort Statute of 1789 does not apply to foreign officials, only to governments, and that, in any event, it should not apply to a foreigner who no longer holds a government office. Samantar now lives in Virginia, and was sued there by survivors and victims of the atrocities in Somalia. Samantar fled the country when the government collapsed in 1991; since that time, Somalia has had no functioning government or central authority.

Dennis Crouch has kept track of the nearly two dozen amicus briefs filed in support of the government in the pending "business method" patents case, Bilski v. Kappos. I'll confess to reading only one of these in any depth (and "reading" is perhaps being overgenerous in my self-assessment); Crouch's capsule summaries are particularly helpful to get a sense of the variety of issues and viewpoints supporting the government's view that the patentability of "inventions" not meeting the "machine-or-transformation" test should be very limited. The one brief I spent some time with was the one filed by the Electronic Frontier Foundation (EFF). Fred von Lohmann provided a link to a .pdf of the EFF amicus brief and explained why the EFF felt compelled to join the Bilski fray:

Just over ten years ago, the Federal Circuit Court of Appeals handed down State Street Bank & Trust Co. v. Signature Financial Group, opening the doors to patents for novel methods of doing business. That ruling knocked patent law loose from its historical moorings and injected patents into business areas where they were neither needed nor wanted. The results have been nothing short of disastrous: a flood of patent applications for services like arbitration, tax-planning, legal counseling, charity fundraising, and even novel-writing.

Scott Greenfield has written before about the issues in Maryland v. Shatzer. His view, that "[o]nce a defendant has invoked his right to counsel, it remains invoked in perpetuity in the absence of an intervening event that changes the situation," is not shared by Donald Dripps and Yale Kamisar, who write:

The Edwards rule was designed to prevent the police from pestering or badgering a suspect who has asserted his right to counsel at his first meeting with the police. But two interrogations in 31 months can hardly be called “badgering” or “pestering.” Why not say that when so much time has elapsed between the first and second meetings with the police that no reasonable custodial suspect could possibly believe that he was being badgered by the police or that the police were trying to wear him down, the Edwards protection should expire? Mr. Shatzer undoubtedly will argue that there is a need for a bright-line rule in this area. Two and a half years may seem long enough, but what about two and a half weeks or two and a half days? Absent a break in custody, i.e., a substantial change in circumstances, Shatzer will maintain, the Edwards protection should remain in effect.

However, it is most unlikely that a majority of the present U.S. Supreme Court will tell us that Edwards’s protection never wears out – that it has no time limits at all. The odds are high that the Court will say that no reasonable suspect could possibly believe that the police were pestering him if they had “tried again” 31 months after their first meeting with the suspect. Indeed, it would not be surprising if at least two or three members of the Supreme Court went further and urged the overruling of either Minnick or Roberson or both.

Greenfield concedes that they may be right about Shatzer's SCOTUS chances and suggests what the consequences of a decision for the government would be:

As they note, there is likely to be a few justices who would prefer to do away with the protections altogether. Sound reasoning and policy won't necessarily stand in the way of a decision stripping defendants of their protections. But if they decision goes against Shatzer, the next question is going to be a doozy.

Even assuming 31 months, more than two and a half years, is "long enough" to dissipate the invocation of counsel, what about two and a half months? Weeks? Hours? What possible rational basis can exist for drawing a line where the right runs out? What a holy mess a reversal in Shatzer will make of things, with judges reaching deep within themselves to decide on an ad hoc basis how long is too long.

For all the anticipation of what the Court will do this term and frequent criticism of what they've done in past terms, it's not often that someone takes a moment to note what the Supremes have done right. Brad Smith and Ilya Somin look to do just that, however, compiling a list of the ten best decisions from a libertarian perspective. I'm relieved to find that at least a few of their selections ring a bell, lo these many years since first-year ConLaw.

The Federal Trade Commission's newly-announced rules requiring disclosures by bloggers who post product reviews was widely-discussed this week. Ryan Singel notes that these rules will not apply to large, established sites but points out that distinguishing the pros from the amateurs is difficult when all are doing similar things using similar tools. He provides a good overview of the rules:

The rules break down roughly like this:

If a well-known dog blogger reviews dog food they bought, no disclosure is necessary. If they review free dog food acquired through a coupon spit out by the supermarket’s computer, no disclosure is necessary. But if the dog food company sends the blogger a free sample based on their review, both the company and the blogger are on the hook if any subsequent review doesn’t include that info.

....

But the rules leave much to interpretation.

Like Singel, Ann Althouse recognizes that the rules are exceptionally vague and the FTC lacks the resources to enforce them comprehensively (thank Heaven for small favors). She writes, however, that overbroad rules and necessarily selective enforcement are, if not the whole problem, a significant part of the problem:"The most absurd part of it is the way the FTC is trying to make it okay by assuring us that they will be selective in deciding which writers on the internet to pursue. That is, they've deliberately made a grotesquely overbroad rule, enough to sweep so many of us into technical violations, but we're supposed to feel soothed by the knowledge that government agents will decide who among us gets fined. No, no, no. Overbreath itself is a problem. And so is selective enforcement."

Australian blogger Duncan Riley calls the FTC's announcement "a sad day for democracy in America":

The ruling means that blogs are treated differently to newspapers or magazines, despite the important role new media is taking in picking up the slack as old media slowly dies off. The ruling essentially creates two classes of media: one that is beyond the standard set by the FTC, and one that is bound by it.

What I’ve yet to find is any good argument as to why old and new media should be treated differently. The rise of “payola” in blogging isn’t something that has miraculously emerged overnight, but is instead simply a sign of maturity in the sector in that it is following the lead of old media before it.

....

It is a sad day for democracy in America where the voice of the people is imposed with rules that the voice of those with power and money are not. Change you can believe in has become bite the hand that got you to where you are because you want to curry favor with the big end of town.

Popehat's Patrick writes, "While disclosure of freebies is good ethics for bloggers generally, I predict that the end result is going to be a muddled morass in which nobody, including the FTC itself, understands the rules, but the government moves further toward regulation of blogs. Yes, I believe in the slippery slope." That these rules are a misguided power grab by a regulatory agency seems to be the general consensus I've seen, although, to be fair, that conclusion seems so plain to me that I'm probably blind to contrary views from all but a very select few. Vague and overbroad rules, selective enforcement, sheer stupidity... there ought to be a law against this. Oh wait, there is. Eric Goldman points out that 47 USC §230 pretty clearly pre-empts the FTC's rulemaking:

47 USC 230 requires the FTC and other consumer protection agencies to fundamentally rethink their basic endorsement liability paradigms.

....

While an FTC enforcement action pursuant to its misguided advertiser liability theory should be an easy defense win, I don't expect we'll ever see that result. As we know, the FTC is fairly careful in selecting enforcement actions, and most defendants choose quickly settle rather than fight. Those that don't settle usually don't present the best facts to the court, and sometimes their lawyers don't even know about 47 USC 230.

....

Because it appears fundamentally inconsistent with 47 USC 230, I hope the FTC will reconsider its basic liability approach here.

I like that last sentence a lot. FTC, doesn't it sound so much nicer when a law professor tells you to get your figurative head out of your proverbial ass?

I will, of course, attempt to comply with any applicable FTC rules. I will append something like the following to any post which recommends or reviews any product or service:

The asshats at the Federal Trade Commission (FTC) require that I, as a non-professional blogger rather than an employee of a mainstream media site, advise you of any financial interests I hold or consideration I have received which may have affected the impartiality of the foregoing product or service recommendation or review. Though these rules appear to have been promulgated by crack-addicted monkeys unfamiliar with the United States' Constitution and laws, I am nonetheless obliged to pretend that these FTC rules are worth the paper they're printed on. If I don't, the terrorists win.

As such, you are hereby advised that the products or services I've mentioned in this post may have been provided to me at no charge. The foregoing does not apply to any lunches or lunch-related items, because there ain't no such thing as a free lunch. Some portion of my meager assets may be attributable directly or indirectly to the companies, organizations, or individuals producing, marketing, or providing the goods or services I've mentioned in this post. I can't really say for certain.

In part this is because my wife handles the money in our family; mostly though, it's because the FTC rules are vague and overbroad. Who knows what I might have a financial interest in? I certainly don't. Like many of you, I pay taxes and thus have an indistinct and involuntary financial interest in General Motors, Chrysler, AIG, a bunch of deadbeats' houses, and every bank I see which doesn't have "blood" or "sperm" in its name. Moreover, as a political science major, I have a poor understanding of the economic forces which directly or indirectly influence my financial interests.

I have some retirement savings which are invested in mutual funds which in turn own shares in a number of companies. I have little or no knowledge which companies these may be from one day to the next. I'm not sure that the fund managers know, either. As these investments consistently decline in value, if by chance one of the companies owned by the funds in which I own shares produced or performed the products or services I mentioned in this post and that mention was a positive one, please advise me and I will promptly change it.

The FTC rules are wrong on so many levels that one hardly knows where to begin criticizing them. Professor Eric Goldman, an authority on the applications of 47 USC §230, has advised that the FTC's rulemaking is probably pre-empted by that statute and is therefore unenforceable. He very politely advised the FTC to reconsider its basic liability approach, but as of the date of this post, they have not yet done so. This may or may not be because they are a gaggle of bureaucratic jobsworths who understand little about the real world and care even less.

You should note, however, that Professor Goldman has hosted meetings of the Bay Area Blawgers group for the past several years. At these meetings, for which I did not pay anything other than attention, I consumed two-thirds of a cold cuts sandwich and drank two sodas and a bottle of water. On two occasions, Professor Goldman gave me merchandise — two ballpoint pens and a slinky — emblazoned with the logo of his law school. Thus, my recommendation of his views on this whole FTC rules thing is probably suspect. I gave the slinky to my daughter, so you should also take anything she says about Professor Goldman with a grain of salt. I'm sorry to spring this on you so late in this notice; it's probably best if you go back to the start and reread it so that we're all square.

In this post and elsewhere, anything I say could be bought-and-paid-for by greedy corporations bent on world domination, be completely self-serving, or be affected by forces beyond my control, like Chuck Norris. You have no reasonable basis to trust any recommendations I offer because you probably "know" me only through this blog and if you know me independently of it, you know or should know that I'm generally full of shit.

You should assume that the products or services I mention were given to me free of charge with the explicit understanding that in exchange I would attempt to dupe you about their value or effectiveness. You should assume that the recommendations or reviews in this post are influenced by something the FTC thinks you should know about. You should assume that the products or services I've recommended will make you look fat. You should make your own damn decisions and take responsibility for them.

All that's left now is to figure a way to condense all that into fewer than 140 characters for Twitter purposes.

The recent Eighth Circuit case Cook v. City of Bella Villa is a pretty appalling one, both in terms of the facts of the case and the court's decision. No one has covered this case better than Mike Cernovich. In the Section 1983 Blog, he summarizes the facts:

Edward Locke is the chief of police of Bella Villa, Missouri. For reasons not immediately clear, Locke remains police chief even though several women have accused him of sexual assault. Indeed, Cook v. City of Bella Villa, was the second published Eighth Circuit Court of Appeals opinion involving claims of sexual assault against Locke. See also, Schmidt v. City of Bella Villa, 557 F.3d 564 (8th Cir. 2009) (Locke required woman to unbutton her pants so Locke could take multiple pictures of a tattoo located near her public area).

Locke stopped a motorist who was allegedly swerving over the center line for “three miles.” The female motorist claimed the police made a false factual statement. She also challenged Locke’s epistemology: She noted that noted that Locke had just pulled out from behind a bend in the road, a mere one-hundred yards behind. Thus, it would have been impossible for him to have seen her swerving.

Locke demanded that the woman “blow into his hand.” She refused. He arrested her. Then it gets creepy.
Locke
thrust his knee between [Diane's] legs, and while Diane was still leaning on the hood of the patrol car, Chief Locke began to paw and stroke her, beginning at Diane’s waist and moving down to her buttocks. Diane testified Chief Locke was “rubbing down [her] butt onto and around [her] inner/outer thighs, [and then] around the front.” ... Diane claims Chief Locke then slid his hands under her sweater and began “working his hands up from [her] waist up to [her] sides towards [her] breasts.”
Slip op. at *5.

Michael Cook, the motorist’s husband, was in Diane's car during the assault:
When Chief Locke began moving his hands underneath Diane’s shirt toward her breast area, Michael exited the vehicle. Michael stated, “Yo, dude, what’s the problem? You can’t be touching her that away.” When Michael made those comments, he was standing beside the car. Chief Locke told Michael that Chief Locke would talk to Michael in a minute. Michael remained where he was, smoking a cigarette. Chief Locke then walked Diane to where Michael was standing. Michael took one step toward Chief Locke. Chief Locke told Michael to “[g]et back in the fucking car” and, at the same time, Chief Locke tasered Michael. Michael never saw the taser.
Slip op. at *26 (Arnold, J., dissenting). Michael sued Locke, alleging (among other claims) that using of a Taser without any notice was an unreasonable use of force. The trial court granted summary judgment in favor of Locke. Shockingly, a split panel of the Eighth Circuit Court of Appeals affirmed.

As Cernovich notes, Locke's conduct was nothing less than criminal sexual assault; the Eighth Circuit has now allowed the Tasering of anyone who tries to stop a police officer in the course of such an assault. At his Crime & Federalism blog, Cernovich points out that under the criminal laws of the State of Missouri (where the incident occurred) and the facts of the case, Locke's actions vis-à-vis Michael Cook constituted third-degree assault:

Some will say say, "But constitutional law is different from criminal law." That's true on its face, but also glosses over how constitutional law - at least in Section 1983 cases - is made. The Constitution states that the use of force must be reasonable. The Constitution doesn't contain an Appendix of Definitions. The Constitution does not define "reasonable."

Judges must determine, on a case-by-case basis, what conduct is reasonable. One way to judge reasonableness is to look towards criminal and civil laws. If every state in the union has classified assault as a crime, isn't it reasonable to infer that assault is unreasonable conduct?

There's no good segue from assault and sexual assault by a police officer to trademark law, and I won't bother to attempt one here.

Kevin Goldberg discusses a recent trademark decision at the Federal district level which denied former NFL great Jim Brown's Lanham Act unfair competition claims against Electronic Arts, makers of the "Madden" series of video games. Goldberg writes, "The judge re-affirmed that the First Amendment does generally apply to these types of video games. It disagreed with the arguments made by Brown – and by others suing video game makers or seeking to regulate their often sexual or violent content – that these games (and other similar commercial enterprises) should be entitled to less than full First Amendment protection. Au contraire, said the judge, the implicitly creative nature of EA’s games merits full First Amendment protection."

Michael Masnick noted a worthwhile article by Kimberly Isbell. Isbell's article suggests that the Lanham Act should be updated to better address some of the challenges raised by developments in our internet-connected world. Masnick isn't entirely convinced; he writes, "While having more clearly defined lines may seem like a good idea, it also provides less flexibility, and more of an opportunity to fence in fair use, rather than letting it adapt as necessary." He notes that his reservations are due in part to recent discussions he's had with copyright guru William Patry. Patry made his home this week at the Volokh Conspiracy blog, guest-posting on, amongst other copyright topics, the role of morality in copyright law. For Patry, "copyright is an economic right, not a moral right and does not raise moral issues." He suggests that "we do not need strong copyright laws or weak copyright laws, but only effective copyright laws, with effective being judged by whether the copyright laws serve their purpose," and concluded that "life plus 70 is inefficient because it wildly exceeds necessary incentives and has negative impacts on the creation of other works."

UPDATE: The best "B-level-blogger" in existence, Ron Coleman of Likelihood of Confusion, deserves credit for seeing the FTC train wreck coming nearly three years ago. I will gladly add this information to my lengthy notice above and recommend anything he does if he'll send me some valuable merchandise free-of-charge.

If you can blawg this, thank a teacher.

2009-10-05T17:00:00.000-07:00

In honor of World Teacher's Day, Susan Cartier Liebel hosts Blawg Review #232 at Solo Practice University. In this educational edition of the carnival of legal blogging, we learn how to move past the billable hour (or not), how to find one's niche in the law and blawging, and how the courthouse has influenced the schoolhouse.

Next week's Blawg Review will be hosted at one of my favorite blogs (legal-centric or otherwise), Popehat. It'll be special, no doubt, and considering this week's theme, that makes it... an after-school special!

TGIS: Thank God It's Schadenfreude! (239)

2009-10-02T07:00:00.000-07:00

This week's joy in the misfortune of others comes courtesy of WABC (from Thursday, October 1; link good at time of posting):

Authorities continue to search for a robbery suspect who strolled out of a Manhattan courthouse after he was mistaken for a lawyer.

The Department of Correction says that 56-year-old Ronald Tackman was still at-large Thursday. Tackman has a history of escape attempts and a criminal record dating back to 1978.

Tackman had been wearing a business suit when a court officer spotted him on Wednesday and mistook him for an attorney.

Tackman was a defendant on trial on a second-degree robbery charge.

Despite the efforts of a swift mobilization, the sealing of the Criminal Courthouse building, and the dogs of both the Corrections Department and NYPD K-9 units picking up and following the prisoner's scent, Tackman remained at large

Tackman pulled off his daring escape by walking out of an unlocked State Supreme Court prisoner holding area on the 12th floor of 100 Centre Street.

He strolled through an 11th-floor courtroom, where a court officer apparently mistook him for a lawyer and called him counselor, but didn't stop him. The felon, who should have been treated like a flight risk, walked right out of the north entrance.

Authorities say Tackman visited his mother shortly after his escape, where he changed clothes and then left.

Tackman's mother, Gene Devine, tells NY1 television that her son came home "all dressed up." She says she figured he'd been discharged from prison. He changed clothes before leaving.

[Previous TGIS]

A Round Tuit (3)

2009-09-30T07:00:00.000-07:00

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

In a fit of morning-after regret, Hofstra University freshman Danmell Ndonye filed an accusation of rape against four men with whom she'd had consensual sex. The police and district attorney were quick to charge the men and jail them, publicizing their names and pictures as widely as possible. When it came to light that one of the men had recorded the sexual encounter on his mobile phone and Ndoye was confronted with the evidence, she admitted that her allegations were lies and the prosecution quickly fell apart.

Surveying the smoking ruins of a case which had promised to be a high-profile boost to her re-election campaign, Nassau County (NY) District Attorney Kathleen Rice had to decide whether to prosecute Ndoye for her false accusations. Instead of following the evidence, she chose to test the political winds, delaying her decision until, as Scott Greenfield described it, she could determine "which direction will get her the most votes, and the least criticism." One one side, the evidence of Ndoye's falsehood was incontrovertible; on the other, domestic violence activists argued to Rice and to the local press that prosecution of this false claim would somehow deter truthful accusers from reporting the crimes committed against them.

Rather than prosecute Ndoye with the same publicity and vigor as she had prosecuted — or would that be persecuted — the four young men Ndoye had accused (and thereby implicitly publicize her error and the police's in hastily trying the accused in the court of public opinion), Rice sought to make the whole matter go away quietly. She announced her decision not to prosecute Ndoye, but did so after business hours on a Friday, expecting that the friendly local newspaper would find something else to report or the public would lose interest in the case over the weekend. On Sunday, Greenfield noted the vague criticisms of that decision leveled by Rice's campaign opponent, Joy Watson, in the local press and attempted to keep the issue in the public's consciousness; his efforts prompted Watson to comment at Greenfield's Simple Justice blog and that comment, reproduced by Greenfield the next day, made clear how cooperative the local newspapers had been in watering-down her views for the DA's benefit.

Come Tuesday, the adverse public reaction to Rice's attempt to sweep the matter under the rug had not abated. Rice's explanations for her decision were increasingly hollow — she now claimed that in addition to encouraging reporting of (ideally, true) sexual crimes, the non-prosecution allowed all the facts of the case to be publicly known. Greenfield was rightly dismissive:

While it might be worthwhile to parse Rice's explanation in further detail if it truly bore a connection to her decision to decline to prosecute, there is little to suggest that it's anything more than an effort, in the face of public outrage, to re-spin the move..
"There is no doubt that this is not a politically popular decision," said Rice.
Every once in a while, the public will surprise a politician by recognizing their position as fundamentally irrational. It doesn't happen often. The problem now is that Rice's new strategy, that the courts couldn't be trusted to be as tough on crime as she is, makes no more sense than not prosecuting an admitted false rape accuser because it would dissuade true rape victims from coming forward.

If Greenfield was unequivocal in his criticism of the politically-motivated decision not to prosecute a false rape accusation, Patrick of the Popehat blog was just as clear in condemning the many who leapt to defend the recently-arrested convicted rapist Roman Polanski. Some falsified the facts of Polanski's case and guilty plea; some excused the crime based on the length of time since its occurrence (conveniently ignoring that the delay in sentencing resulted from Polanski's flight following his plea); some seemed to offer no rational basis for their defense of Polanski other than the facts that he is famous, his victim is not, and Polanski has sometimes demonstrated talents apart from drugging and raping thirteen-years-old girls. Patrick put things into proper perspective:

Let me be blunt. Polanski is a child rapist. But these apologists, too, are sick freaks. Given their moral sensibilities, I would no more let Patrick Goldstein or Joan Z. Shore be alone with my kids than I would Polanski. Among the sick or stupid ideas such people are willing to promote to defend Polanski are the following:

1. That it is morally acceptable to gloat over the fact that a rape victim does not want the perpetrator tried, even when she specifically says it is because she can’t bear for her family to be dragged through the mud.
2. That the victim’s mother fed her to Polanski to promote her career — as if this is a morally significant mitigating factor, as if it in any way excuses the conduct.
3. That the victim — who, in her grand jury testimony, referred to the act performing cunnilingus as “performing cuddliness” — was a sophisticated seductress.
4. That it is irrational or vengeful to pursue a child-rapist for 32 years, because moral responsibility for rape has a shelf-life.
5. That it is irrational or vengeful to fail to forgive a child-rapist, and excuse him from legal consequences, when he previously experienced great hardship.
6. That living a life of luxury in France is a great hardship. (For people with normal moral sensibilities, to whom rape is not properly classified as “sexual liberation,” I grant you it might be.)
7. That Great Men of letters exist on a different plane, and that right-thinking people overlook their peccadilloes.
8. That opposition to drugging and having sex with 13-year-olds — let alone raping them — is a sign of Puritanism.
9. That the Fugitive Disentitlement Doctrine, which generally prevents fugitives from litigating their cases in the forum they fled, is somehow unfair.
10. That a trial judge is bound by the deal a defendant cuts with the prosecution.

Politics Daily columnist David Gibson wondered whether those apologists would be so quick to defend "Father Polanski":

There is the obvious parallel to the cases in the Catholic Church, which have rightly scandalized the public and the media. Prosecutors and plaintiffs' attorneys have been dogged in pursuing these cases -- whether out of concern for their careers or for justice -- and the outrage was so widespread that the State of California created a one-year window in 2003 during which the statute of limitations on abuse crimes by Catholic priests (and others) was lifted. That meant the victims of men who were often long dead could finally get their day in court, or find some sense of justice and closure -- and for cases that were no more egregious than Polanski's abuse of Geimer. Polanski is alive, at least.

Comparisons are by their nature invidious. But what if Roman Polanksi were wearing a Roman collar? Would "Monsignor Polanksi" receive the same considerations? As Father Thomas Reese, a Jesuit, writes at the Post's "On Faith" site, "Imagine if the Knights of Columbus decided to give an award to a pedophile priest who had fled the country to avoid prison. The outcry would be universal." And rightly so, as Reese says. But Polanski gets an Oscar in absentia in 2003 and earns sympathy because he can't receive it in person.

When a woman makes a false rape accusation but escapes liability due to the prosecutor's political sensitivities and when a convicted — and admitted — child rapist and international fugitive is loudly defended by his admirers in Hollywood and abroad, one can say with some certainty that the scales of justice needed a bit of rebalancing this past week.

Still in the criminal justice trenches, fighting the good fight, were more than a few legal bloggers. A couple found time to write intensely personal, compelling accounts of their efforts.

Norm Pattis shared his thoughts and fears while awaiting a jury's verdict with his client:

The jury has been out for the better part of two days now. They are considering four charges: murder, attempted murder, assault in the first degree and criminal possession of a firearm.

....

We are hopeful, but scared. The stakes are enormous and everything in my client's life depends today on the decision of twelve strangers now locked for a couple of days in a small room. The jurors will return to this pressure cooker today, and the judge will no doubt turn up the heat by [instructing the jurors to continue deliberating]. I am glad I am not a juror.

The result of those deliberations — to convict on some but not all of the charges — was ambiguous. Pattis wrote:

Yesterday the jury decided that it could not decide what happened as to the murder. It also decided that it could not decide whether there was an attempted murder. No verdict means a mistrial. The state can now bring him to trial all over again, at least as to the murder.

The jury convicted my client of assault in the first degree and the firearms count. It also found facts sufficient to enhance the penalty by five years. We expected to lose the firearms count, and hoped for acquittals in the remaining three counts. It did not happen. Did we lose?

I say we did, and it hurts.

....

Some friends have congratulated me on the outcome. "Great job!" one wrote. Staring down murder and attempted murder charges in a case where apparently unarmed women were shot point-blank by a much larger man is not easy. But it does not feel like a win to me. Those taunting me for failing have found their mark. I am an easy bleed, I am afraid.

Jeff Gamso discussed his thoughts about the self-doubt and brutal introspection in which all good criminal defense attorneys engage, and none more so than those who defend capital cases:

I was in a waiting room across from the death house at the Southern Ohio Correctional Facility. My client had just been executed, killed by the state of Ohio. I hadn't represented him at trial, hadn't been the one, as we say in this business, to put him on the row. But I hadn't gotten him off, either. And now he was dead. I wasn't a witness to the killing, but I'd seen the body in the body bag wheeled out of the death house and into the hearse.

And the family came up to me, not all of them and not together, but one at a time, his mother first. It was like a mantra as one after another said
You did all you could
Meaning it for comfort. Meaning that it was all that could be done. Meaning that some god had chosen and I should know that I'd tried my best and they appreciated that. And I said to each of them, "Thank you." Because what else can you say. But you know, there's no comfort in those words.

It's not that they're empty. They're meant sincerely, the motive is pure and the sentiment is all positive. But that's from the speaker.

At your end, when your client has just been murdered and you've been powerless to prevent it, the only answer is that if this is all I could do, then I'm not good enough. And if it wasn't all I could have done, then I'm neither good enough nor diligent enough.

Stung by an undercover investigation which revealed the... um, seedier side of ACORN, the now-discredited group turned to the courts, filing a claim alleging illegal wiretapping under Maryland law by the investigative filmmakers. The suit seems like a poorly-advised strategy; it's unlikely to repair the political damage which caused the federal government to cut-off the group's taxpayer funding and is unlikely to mitigate the damage ACORN has suffered in the court of public opinion. Exposure of the group's tax-avoidance advice to supposed pimps, prostitutes, and child traffickers, all funded by the taxes paid by more honest folk, tends to raise one's ire (assuming one is of the latter persuasion rather than the former).

As Ken explained in the Popehat blog, the claim makes little legal sense, either. The principal objectives ostensibly sought by ACORN are generally precluded by existing case law, which tends to indicate (as many have observed) that the claim was likely filed to harass the filmmakers and the conservative-leaning website which broadcast their findings. In other states, so-called Anti-SLAPP laws penalize such claims when they are, as appears to be the case here, brought to chill public debate and criticism. In a follow-on post, Ken discussed the somewhat diluted Anti-SLAPP law in Maryland and wasn't optimistic that it would provide much meaningful relief to the defendants:

In short, Maryland’s anti-SLAPP statute sucks. It seems likely that it was rendered substantially useless by the pro-plaintiff-attorney legislative forces that opposed it. It might provide a procedural vehicle for Breitbart et al. to raise First Amendment issues, but it isn’t the killshot that it could be in some states. Too bad. I really love California’s anti-SLAPP statute. Winning one, and watching your opponent realize he will be paying your fees, is one of the great pleasures of First Amendment law.

ACORN and its backers sorely need to be taught a lesson; pop singer Lily Allen just learned a somewhat lesser one.

Allen decided to take to the blogosphere to argue for tougher copyright laws and tougher penalties for those who infringe them in trading digital music. She got off on the wrong foot by copying without attribution comments made by Michael Masnick, a respected authority on copyright issues writing at the Techdirt site. When the plagiarism was called to Allen's attention and Masnick's, he was philosophical; she was defiant. When Masnick noted that at her website Allen had also posted "mixtapes" of music she liked in violation of the very copyright laws she argued should be strengthened to benefit her business interests, she was defensive. Masnick, in a lengthy post, sought to use Allen's copyright transgressions as a "teaching moment" to illustrate the absurdity of current copyright laws and of efforts to enforce draconian penalties for their violation:

If you truly believe that regular uploaders should have their internet access taken away, why not make an example of yourself? Why not take away your own internet access for a year to prove the point? Or do you not think the laws you want to apply to everyone else should apply to you?

Again, the whole point here is that what you did was entirely natural and made plenty of sense. Lots of people do it today. They do it because they love music. There's nothing wrong with that, and you know it (or, apparently, knew it at one point in the past). And, there are many ways to take advantage of that fact. Just as 50 Cent does. Just as you did. Going to war with the fans who made you who you are today, in part because of your own infringing behavior, just doesn't make any sense. You keep saying that file sharing harms artists, but it existed five years ago as well, and didn't harm you. It helped you. So why would you want to take that away from everyone else?

Allen's response was to delete her entire blog, claiming that it had been abused. Masnick chided her, "Lily, it's not abuse if we're just asking you to rethink your positions that appear to not be particularly well thought out."

The Allen-Masnick kerfuffle caught the attention of widely-read Boing Boing blogger and author Cory Doctorow, who made no secret which side had his support:

It's tempting to count coup here and write Allen off as a hypocrite, but there's a more important story here. Allen just hasn't thought this through. Copyright is problematic for everyone: musicians, fans, bloggers. The absence of clear affirmative rights to make personal copies, to share with your friends, to copy for the purposes of discussion and commentary (as opposed to the fuzzy and difficult-to-interpret fair use guidelines, which have been further confused by the entertainment industry's bold attempts to convince us all that they don't matter and can't be relied upon) means that we're all in a state of constant infringement.

A law that no one understands and no one abides by is no law at all. Parts of copyright -- the right to regulate how commercial licenses with industrial entities work -- are really important to me and to all working artists. But if we continue to try to expand copyright to cover everything, every interaction that involves a copy (which is every interaction these days), then the broad consensus that copyright is nonsense will continue to grow, and we'll lose the good stuff as well as the ridiculous stuff.

For his part, Masnick continued demonstrating why his writing concerning copyright is worth plagiarizing in the first place; he noted the entertainment industry's convenient flip-flopping about whether their works are owned (and thus capable of being "stolen" like physical goods) or licensed and explained why the distinction is critical to make. If you've not yet bookmarked Techdirt and started reading Masnick's writing regularly, do this now so that you may speak authoritatively about critical intellectual property issues at your next cocktail party.

There was a passing of the torch this week at Law.com's Legal Blog Watch. Carolyn Elefant stepped down from the blog after (she reckoned) approximately 1,680 posts over the past three-and-a-half years. Her co-blogger, Robert Ambrogi, wrote that "what I didn't fully appreciate when we started out was just how good a writer she is. Through reading her posts, I believe, I learned how to be a better blogger." In introducing himself to Legal Blog Watch's audience, Elefant's successor, Bruce Carton, recognized that he has big shoes to fill: "First off, let me just say that I know this won't be easy." Best of luck, Bruce.

Finally, I want to mention a guest post at Mark Bennett's Defending People blog this week. Bennett's friend, Josh Reiss, wrote that his wife, Anh, has a blood cancer called Myelodysplastic Syndrome and needs a bone marrow stem cell transplant. He and others have established "Team Anh" to promote more widespread registration for bone marrow donation. In reading his post and the information at the Team Anh and DKMS Americas sites, I learned how simple (and painless) both the registration and donation processes are. Bone marrow donation registration is one of those "I know I should do it" things which I somehow have never found the time or will to do. I'm grateful to Mark and Josh for prompting me to finally do it; my registration kit is on its way. Please take a look at Josh's post and get registered. Like me, you probably already understand the need and want to help, but were just waiting for a "round tuit". These folks have them to spare.

Vegas, Baby, Vegas!

2009-09-29T18:00:00.000-07:00

The ads say that what happens in Vegas stays in Vegas, but word was bound to get out about this week's Blawg Review #231, hosted at the Legally UnBound blog. Kael Garvey, the blog's pseudonymous Vegas-resident proprietor (none of us use our real names when we go to Vegas) takes us on a tour of Sin City and the best legal blogging of the past week.

Garvey very graciously opens with some flattery for last week's Blawg Review, hosted at Unsilent Partners by Mike Semple Piggot and me. I do feel the need to correct him on at least one point, however. He refers to us as the Blawg Review "establishment"; technically, Mike is anti-establishment (Blawg Review or otherwise) and I'm too flaky to be established as much of anything. Thanks, though.

Highlights of Blawg Review #231 include celebrating innovations in the desert and innovators in the law, covering The Juice in the system and juicing the system, and appreciating lying and gambling for their strategic values. If you're not too hung over after leaving Las Vegas, next week's Blawg Review #232 will be hosted by Susan Cartier Liebel at Solo Practice University.

TGIS: Thank God It's Schadenfreude! (238)

2009-09-25T07:00:00.000-07:00

This week's joy in the misfortune of others comes courtesy of Hit & Run (from Thursday, September 24; link good at time of posting):

New York City Mayor Michael Bloomberg has a salty tooth. According to The New York Times, Bloomberg liberally salts his pizza, throws so much salt on his morning bagel that "it's like a pretzel," and "likes his popcorn so salty that it burns others' lips." In a sane world, no one would care about such trivia. But in a world where paternalistic busybodies like Bloomberg tell people how to live their lives and do not hesitate to use force (in the form of smoking bans, cigarette taxes, and trans fat prohibition, for example) when scolding fails, the mayor's eating habits are newsworthy. The Times rightly perceives a contradiction between the mayor's salty diet and his administration's campaign against salt, which has included "asking restaurants and food manufacturers to voluntarily cut the salt in their dishes by 20 percent or more, and encouraging diners to 'shake the habit' by asking waiters for food without added salt."

The Times also suggests there's a tension between the city's rule requiring the prominent posting of calorie counts on restaurant menu boards and the mayor's fondness for hot dogs, fried chicken, cheeseburgers, and "burnt bacon and peanut butter sandwiches." The mayor's aides emphasize that he makes up for his overindulgences by cutting back the next day and manages to keep a trim figure

[Previous TGIS]

War! What is it good for? Absolutely... well, quite a lot, actually.

2009-09-20T15:00:00.000-07:00

Mike Semple Piggot and I host Blawg Review #230 at our joint Unsilent Partners blawg. It is a respectful tribute to tomorrow's United Nations International Day of Peace:

Officially of course, we’re against war, as it’s undeniably destructive to humans and their works. Peace is a much more palatable concept until one realizes that there are certain conditions which should not be allowed to continue in peace and certain people with whom one can not reason peacefully. At that point, humanity is characterized not by the avoidance of war but by a willingness to accept the burden of war and seek to resolve otherwise intractable situations as humanely as possible. War is certainly not the answer to every international problem, but there are some things that are worth fighting for. Who understands that better than soldiers and lawyers?

Thus, while 21 September is officially the United Nations’ International Day of Peace , we’ll leave the encomia of peace to others and offer a brief but heartfelt appreciation of war here at Unsilent Partners. Notwithstanding, as this has been designated a day for international ceasefire, we promise not to shoot anyone until tomorrow morning.

When I said "respectful" I meant, of course, "disrespectful". Kael Garvey will host Blawg Review #231 next Monday at the Legally UnBound blog. I'll return with another Round Tuit post here at Infamy or Praise next week on Wednesday.

TGIS: Thank God It's Schadenfreude! (237)

2009-09-18T07:00:00.000-07:00

This week's joy in the misfortune of others comes courtesy of CNN (via Boing Boing) (from Monday, September 14; link good at time of posting):

[Previous TGIS]

Harvard's not the douchiest, but still douchy enough for Blawg Review.

2009-09-16T12:00:00.000-07:00

Harvard alum Barry Barnett hosts this week's Blawg Review #229 at his Blawgletter site on the anniversary of John Harvard's death. Right off the bat, we learn a few things about Harvard, including that he had no involvement with the founding of the university which bears his name and that he spelled his name with only two a's, unlike Haaavaaad University does today.

Barnett notes that Harvard Law School suffered a bitter defeat recently to Duke Law School in a contest to determine the "Douchiest Law School" in America. Tough loss there, Harvard. Take some consolation, however, in the fact that you and your notable alumni will always be douchy enough for inclusion in Blawg Review. Barnett's Blawg Review is understandably Harvard-heavy, but he does gather some of the best legal blogging from last week, regardless of writers' alma maters. Highlights of this edition include letting animals enforce their own rights, treating McDonald's like clowns in India (Ronald McCurry, anyone?), and turning law school gamers into law firm apprentices.

For both fans of the "Round Tuit" posts, there will be no Round Tuit here today; Mike Semple Piggot and I are already gearing up for our joint turn hosting the carnival of legal blogging, next Monday at our Unsilent Partners blog. Round Tuit will be back here at Infamy or Praise the Wednesday after next.