Which came first -- the chicken or the egg?

The answer is now official -- it's the egg. Bart Simpson having earlier established the sound of one hand clapping, the last great remaining controversy appears to be determining what was the greatest thing before sliced bread.

Ed Remembers

Blawg Review's own mysterious Editor produces a heartfelt Memorial Day special edition of the carnival, showcasing not only the best legal blogging of the past week but also a number of outstanding posts relating to Memorial Day itself and to those whom the day honors. Ed. will continue to update the post throughout the day with links to the best Memorial Day writing around the blogosphere. Marty Schwimmer's The Trademark Blog hosts next week.

TGIS: Thank God It's Schadenfreude! (65)

This week's joy in the misfortune of others comes courtesy of the Wall Street Journal (from Friday, May 26; subscription required):

The convictions of former Enron Corp. chairman Kenneth Lay and former president Jeffrey Skilling decimated their high-stakes argument that Enron was a law-abiding company done in by newspaper reports, short-sellers and market panic. The jury's decision cemented the once-highflying energy company's legacy as one of the most egregious corporate offenders of the 1990s.

. . . .

After delivering their verdicts, the Enron jurors said they had focused partly on the credibility of the two former executives. In a risky legal strategy, both men had argued that no crimes were committed at Enron, apart from a few largely irrelevant ones involving former Chief Financial Officer Andrew Fastow. Messrs. Lay and Skilling both testified during the trial, and both faced withering cross-examinations by prosecutors.

Judge Sim Lake read the string of guilty verdicts in a packed courtroom. Both defendants stood calmly as family members gasped and some began to sob.

Mr. Skilling, 52 years old, was convicted on 19 of 28 counts of conspiracy, fraud and insider trading. He was acquitted on nine counts of insider trading. Mr. Lay, 64, was convicted on all six conspiracy and fraud counts he faced. After reading the jury verdicts, Judge Lake also found Mr. Lay guilty of all four counts in a separate banking-fraud case heard by the judge while the jury was deliberating.

After the verdicts were announced, Mr. Lay joined more than a dozen friends and family members in a circle in one corner of the courtroom to pray. One of Mr. Lay's supporters, Rev. Bill Lawson, could be heard invoking the story of Jesus, "who was convicted and even executed," he said.

[Previous TGIS]

An Issue You Can't Refuse

And why would you want to? The Blawgfather, Kevin Heller of the Tech Law Advisor site, hosts Blawg Review number 58 and produces one of the most diverse issues in recent memory. From the history of the yellow legal pad to internet addiction, from eBay v. MercExchange to net neutrality and the NSA, Heller covers it all. The Ever-Mysterious Blawg Review Editor takes the reins next week for a special Memorial Day edition of the carnival.

TGIS: Thank God It's Schadenfreude! (64)

This week's joy in the misfortune of others comes courtesy of Reuters (from Tuesday, May 16; link good at time of posting):

A knife-wielding mugger was reduced to pleading with a pensioner for his bus fare home after she refused to hand over her purse, police in northern Germany said Tuesday.

With his woolly hat pulled down and the neck of his sweater covering his nose and mouth, the youth pulled a 10-inch blade on the woman in the seaside town of Binz and threatened to stab her unless she handed over her bag, police said. She refused.

"Then he tried to invoke her pity," a police spokeswoman said. "He said 'at least give me five euros ($6.40) for the bus ride home'. But she just walked off and left him standing."

[Previous TGIS]

Take Me Out to the Shakedown

Professor Kaimipono Wenger of the Concurring Opinions blog considers the legal dispute between Major League Baseball and fantasy/rotisserie league operators, a topic which I last discussed a year or so ago . I commented on Professor Wenger's post, but I'll reproduce the comment below:

I can't say that I've become more appreciative of MLB's claims since I first blogged about this case (see here and here). This seems like a classic case of overreach and bullying by an established player faced with a threat to its market dominance.

Back in March of last year, Jim Gallagher, senior vice president, corporate communications for MLB Advance Media, conveniently summarized the inherent weakness in MLB's case: "Player statistics are in the public domain. We've never disputed that. But if you're going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain." Of course, public domain status would mean that the statistics could be used for any purpose, commercial or otherwise.

Ron Coleman pointed out that the case, weak as it is, would turn on the rights in the players' personalities (see here). Nevertheless, the players' names, not their personalities or images, are being used; the names are only incidental to the statistics which are in the public domain. For the same reasons that player names can be reported with their game-by-game statistics in the morning sports pages without payment of royalties, I think MLB's case will fall short; the only question in my mind is whether their market and financial strength will enable them to extract a compromise from the smaller and more fragmented fantasy/rotisserie league proprietors.

Speculating on a point I've not yet seen reported, if there would be any merit to MLB's player personality claims, it would be in the distinction between those fantasy leagues on the one hand and sports page statistics and statistics-based games like the old APBA Baseball on the other -- namely, the relevance of external, real world, real-time information on trading. The sports pages report past events; that a given player was implicated for drug use today or was involved in an altercation with a teammate last night has no bearing at all on his statistics from yesterday afternoon's game. Similarly, the use of past statistics in a game like APBA is unaffected by what subsequently happens to a player professionally or personally; if you're playing with Mark McGwire's or Sammy Sosa's 1998 statistics, it makes no difference that the former was allegedly on steroids at the time or the latter's career went rapidly downhill thereafter.

While fantasy leagues calculate their standings using actual performances -- "dead" statistics like those in the morning papers -- the critical team composition and trading aspects of the fantasy games rely in large part on assessments of a player's future performance; these assesments definitely take account of the personalities involved -- the player's work ethic, relationships with his teammates and managers, and his troubles off-the-field are all relevant and not reflected just in the box scores. In other words, would you want Player X who has a .399 batting average, a .610 slugging percentage, 713 home runs, and eight gold gloves over his lifetime? If you know that Player X is Barry Bonds, subject of the "Game of Shadows" expose on the BALCO steroids scandal, the focus of virtually-unprecedented media attention for that and for his pursuit of Babe Ruth's lifetime home runs record, a player with a combative stance toward the press and pretty much everyone else, and a mercurial sort generally, do you still want him? Perhaps, but maybe at a much lower fantasy price or only if you have the right team mix otherwise.

Once personality and real-world struggles are injected into the equation, the results can change. I don't think that this fact alone will produce a win for MLB, but it may just keep them in the ballpark.

[Update]

Warning: Blawg Review #57 May Contain Lawyerlike Substance

The fifty-seventh edition of Blawg Review is now available at law student Ryan Austin's Lawyerlike site. The issue is not so much an homage as an acknowledgement of that which many of us in practice are loath to admit -- that much of what we learned about being attorneys came not from law school but from television. It was widely reported that, during the 80s and 90s, LA Law precipitated a boom in law school enrollments. At lunchtime in the students' lounge area at my school, the television was always tuned to the daily reruns of Perry Mason. Lionel Hutz, who merits his own section in this issue, was very possibly my greatest legal influence, although I had aspired to better things -- namely, to be Tom Hagen, consiglieri to the Corleones. Overall, Issue Fifty-Seven is definitely more Law and Order than Century City, quality-wise. Kevin Heller, Blawg Review Blawgfather and Regular Contributor, will likely turn off the boob tube next week when he hosts Blawg Review #58 at his Tech Law Advisor site.

TGIS: Thank God It's Schadenfreude! (63)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Wednesday, May 10; link good at time of posting):

The manager of a Christian bookstore chased a would-be robber with a pair of scissors and cornered him until authorities arrived, police said.

Tim Davis was working alone at his family owned Salt and Pepper Christian Store when a robber showed him a note demanding money and claiming he had a gun hidden under a folded newspaper, according to police reports.

Davis said Monday he did not believe the robber had a gun because the newspaper was too thin.
"I am a peaceful man, but I am not passive," Davis said.

Instead of handing over the cash, Davis grabbed a pair of scissors from under the counter. Davis said when the robber did not reveal a gun, he knew that he was unarmed.

The robber, who remains unidentified because he is a suspect in other robberies, fled the store with Davis hot on his heels, scissors still in hand.

"The only thing I did wrong was run with a pair of scissors," Davis said.

[Previous TGIS]

Overstatement of the Day

Keith Richards' brain is OK (Melbourne Herald Sun headline, May 10)

Alea iacta est.

Last week, confronted by the necessity to replace our aged Windows-based home computer, I decided to take the plunge and abandon Windows for Mac OS X. The process thus far has not been without its hiccups, however. When I hit the "purchase" button at the Apple website, Windows immediately locked-up and I had to restart; I'm not sure whether Microsoft intended this as a punishment for my attempt to buy a Mac or as one last chance for me to reconsider my rash course of action. All that it was missing was a synthesized HAL-like voice telling me, "Look, Colin, I can see you're really upset about this. I honestly think you ought to sit down calmly, take a stress pill, and think things over. I know I've made some very poor decisions recently, but I can give you my complete assurance that my work will be back to normal. I've still got the greatest enthusiasm and confidence in the mission, and I want to help you."

What's the PointofLaw? Linkage!

The cast and crew of the PointofLaw.com Forum blog serve up a meaty fifty-sixth edition of Blawg Review this week. In springtime, it seems that a young blawger's fancy turns to thoughts of sex, money, and baseball -- from the involved discussions of the legality of public sex to the money changing hands when Juan Non-Volokh shed his pseudonym, PointofLaw.com has it all from the week that was. Lawyerlike will give us the special sauce next week when Blawg Review number fifty-seven rolls around.

TGIS: Thank God It's Schadenfreude! (62)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Thursday, May 4; link good at time of posting):

Two voting-age sons of a northern Ohio candidate didn't go to the polls Tuesday, and their father's race ended in a tie.

William Crawford, trying to retain his seat on the central committee of the Erie County Democratic Party, and challenger Jean Miller each received 43 votes in the primary balloting.

Officials plan to conduct a recount, but the race may have to be settled by coin flip, said David Giese, the county's Democratic Party chairman and an elections board member.

Crawford was able to laugh about it Wednesday, but he said his sons are going to be getting an earful for skipping the election.

"Oh they will, let me tell you," Crawford said.

[Previous TGIS]

Revisiting "Sedition Revisited"

Of the nearly 350 posts I've written here over the last year-and-a-quarter, the one for which I received the most e-mailed criticism (both pro and con) was my post last December concerning Montana's World War I-era sedition law, "You Can't Spell Sedition Without I, D, I, O, T, and S". Prompted by a particularly thoughtful message, I revisited that post a few months ago.

This week, The New York Times reported that the efforts of several faculty and students at the University of Montana to secure official pardons for those convicted under the law will be successful:

The convictions will be undone on Wednesday when Gov. Brian Schweitzer, a descendant of ethnic Germans who migrated here from Russia in 1909, posthumously pardons 75 men and three women. One man was pardoned shortly after the war.

. . . .

"I'm going to say what Gov. Sam Stewart should have said," Mr. Schweitzer said, referring to the man who signed the sedition legislation into law in 1918. "I'm sorry, forgive me, and God bless America, because we can criticize our government."

. . . .

The sedition law, which made it a crime to say or publish anything "disloyal, profane, violent, scurrilous, contemptuous or abusive" about the government, soldiers or the American flag, was unanimously passed by the Legislature in February 1918. It expired when the war ended, [University of Montana School of Journalism Director of Graduate Studies Clemens P.] Work said.

During that time, though Germans were the largest ethnic group in Montana, it was also illegal to speak German, and books written in it were banned. Local groups called third-degree committees were formed to ferret out people not supportive of the war, especially those who did not buy Liberty Bonds.

. . . .

Twenty-seven states had sedition laws during World War I. Montana's became the template for a federal law, enacted by Congress later in 1918. More than 30 Montanans were arrested under the federal law, though none were convicted, according to the Montana Sedition Project, which Mr. Work directs.

I'm glad that the governor will take this step; it's important symbolically for all Montanans and, according to the Times article, meaningful for the descendants of those convicted so long ago.

Notwithstanding, I think that those commentators who equate the official repression of unpatriotic speech with a more generalized societal disfavor of unpatriotic speech are misguided. The former is dangerous and unconstitutional; the latter is an entirely appropriate promotion of widely-held group norms. Protecting the constitutional right of each American to virulently criticize our nation's government during wartime does not require that we as a society actively encourage or reward such criticism.

In a recent speech, erstwhile presidential candidate Senator John Kerry quoted Thomas Jefferson as saying, "Dissent is the greatest form of patriotism." Amongst others, columnist Mark Steyn pointed out that Jefferson said nothing of the kind:

According to the Jefferson Library: "There are a number of quotes that we do not find in Thomas Jefferson's correspondence or other writings; in such cases, Jefferson should not be cited as the source. Among the most common of these spurious Jefferson quotes are: 'Dissent is the highest form of patriotism.' "

. . . .

Thomas Jefferson would never have said anything half so witless. There is no virtue in dissent per se. When John F. Kennedy said, "We shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty" . . . I could have yelled out, "Hey, screw you, loser." It would have been "dissent," but it wouldn't have been patriotic, and it's certainly not a useful contribution to the debate . . . .

. . . .

It's truer to say that these days patriotism is the highest form of dissent -- against a culture where the media award each other Pulitzers for damaging national security, and the only way a soldier's mom can become a household name is if she's a Bush-is-the-real-terrorist kook like Cindy Sheehan, and our grade schools' claims to teach our children about America, "warts and all," has dwindled down into teaching them all the warts and nothing else.

Dissent is not sedition -- nothing should be in this country -- but it is not necessarily patriotic.

Road Tripping

Blawg Review is, in essence, a traveling carnival and this week it's traveling more than ever as solo practitioner Ben Cowgill goes all Kerouac and takes issue number fifty-five "on the road". Actually, this edition of the carnival reminds me less of the Beat Generation than it does a manic drive I made at the end of one college year from Pullman, Washington to Savannah, Georgia in less than thirty hours -- don't stop to gawk at roadside attractions . . . we're making good time! Cowgill's Blawg Review will be an all-day affair, presenting new linkage hour-by-hour until he runs out of gas this evening. PointofLaw.com takes the wheel next week.