Liberté, Égalité, Hermès

The French are lamenting the "banalization" of Paris' famed Champs-Élysées and have begun denying permission to lower-rent shops seeking to do business there. Economist.com's Free Exchange blog offers them a helping hand:

[H]ere's my suggestion. The French government polls some suitably profiled cross-section of Parisian residents (ladies with small dogs, men with moustaches, people coming out of arthouse movies, anyone carrying a baguette, anyne with a striped T-shirt and a beret) and asks them what shops they would like to see on the Champs-Elysees. Then it compels those shops, by law, to open on the Champs-Elysees. I mean, if it can turn shops away, why can't it force them to come? Is that really any different as an incursion on economic freedom? Who knows, it might be a hit, and anyhow it would be cute.

My general point is that, for as long as the French think they can suspend the laws of economics in a 400-mile mile radius around Clermont-Ferrand, we should delight in any weird policies they may attempt (eg, declaring yoghurt a strategic industry; imposing a 35 hour week and then regretting it). Just to see what happens.

What experiments should we urge on them next? Here's my wish list:

Cap the rates for luxury hotel rooms within the Peripherique at $100 a night

Abolish income tax for figurative painters and pastry chefs

Tax noisy plumbing and use the proceeds to subsidise Louis Vuitton luggage at point of sale

Hold real-time auctions for cabs at taxi ranks, with the excess of the winning bid over the metred fare to be given to the under bidder

Cap the working week at five hours in a pilot city, eg Bordeaux, to see if this increases local employment by 800%

Optical Illusions

It's my objective, generally speaking, to try to find some way to say "yes" to a client request unless there's no feasible, responsible alternative except to say "no". When it comes to contract drafting, I can recall numerous occasions when I've accommodated a request to put something into a contract for purposes of "optics" -- that is, where the term has no practical effect but appeases someone's sense of how the contract should look. I've found that these little concessions help to get deals done such that the participants in the deal-making don't just receive an appropriate, well-drafted contract, but also walk away with a good feeling about the process and are optimistic about the transaction's prospects.

Whatever their value, however, one has to keep one's perspective and not let the tail wag the dog. In his latest Tuesday Morning Quarterback column, Gregg Easterbrook highlights one contract where the tail was undoubtedly in control:

Last winter, the Tennessee Titans' braintrust was faced with an odd contract clause that required the team to pay Steve McNair either $1 million or $50 million on the eve of free agency. Titans' managers scratched their heads, drummed on the table, gazed off into the distance, took long walks and finally decided that they would rather pay $1 million than $50 million. Attention Bank of Sweden! Maybe the Titans' front office should be nominated for the Nobel Prize in Economics. This puzzling clause was part of the fictional contract that enabled McNair's agent to announce, in 2004, that he had signed his client to a breathtaking "six-year, $100 million contract." In order for those numbers to be realized, Tennessee had to opt to pay him $50 million instead of $1 million in winter 2006 -- which was never terribly likely, was it? McNair changed employers to Baltimore, his "six-year, $100 million" contract ending up lasting two seasons and paying about $11 million. That is, 89 percent of the contract was fictional.

Honestly, does that clause serve the client's interests at all or is it just a sop to the agent's vanity? That "optic" is more a fun-house mirror, distorting the true meaning of the agreement. Still, if you're going to do it, why stop halfway? Why, when he had a pliable client on the hook, did McNair's agent not embrace his inner "Dr. Evil" and make that option year for one billion dollars? After all, "six-year, $1.05 billion" contract sounds much better than the paltry sum for which they eventually signed.

At the other end of the spectrum is a sports-related contract clause which strikes me as eminently advisable (via the Baseball Crank blog):

[San Francisco Giants outfielder Barry] Bonds' $15.8 million, one-year agreement contains a provision giving the club the right to void the deal if he is indicted, but the outfielder's agent says the language is unenforceable under baseball's collective bargaining agreement.

The unusual provision, included in the deal that was completed Monday night, is designed by the team to protect itself in case Bonds is charged in the federal government's steroids investigation. Bonds' personal trainer, Greg Anderson, is in a California federal prison because he has refused to testify whether Bonds committed perjury when he told a 2003 grand jury he never knowingly used performance-enhancing drugs.

Random Thought (7)

If I could change just one thing about myself, it would probably be my tail.

[Previous Thought]

Fnord! Review

Although most of you will be too brainwashed to appreciate the fact, Kevin Thompson's Cyberlaw Central blog has been [Fnord!] subverted by the Illuminati. Thompson was scheduled to host the [Fnord!] ninety-third edition of Blawg Review this week but his effort, which I'm certain would have been outstanding, unfortunately was hijacked by persons unknown [Fnord!] on behalf of various international conspiracies.

Blawg Review #93 purports to collect many of the best legal blogging posts from the past week, including [Fnord!] a debunking of a "bloggers-as-lobbyists" meme, the debate over the constitutional status of Habeas Corpus, and dealing ethically with client politics. These posts are, of course, nothing but [Fnord!] disinformation.

One of the techniques the Illuminati use [Fnord!] to disguise their actions is to employ self-referential misdirection when "reporting" their activities to the clueless public. Steve Jackson Games, an Illuminati front organization (as is Blawg Review, for that matter [Fnord!]), published a widely-appreciated game based on rumors about the shadowy conspiracies which dominate our lives. Those rumors are, of course, all true [Fnord!]. The best way for the Illuminati to deny those truths is to trivialize them by making them the subject of a game played by dateless dorks. I know this because I pretended to be such a dateless dork [Fnord!] for many years and spent innumerable Friday and Saturday nights with a small group of Illuminati dupes that I had infiltrated, eating pizza and playing Illuminati.

The most complete exposé of the Illuminati yet published [Fnord!] is The Illuminatus! Trilogy co-authored by Robert Anton Wilson [Fnord!], who "died" on January 11. Do you really think it's a coincidence that Blawg Review #93 appears just two weeks after Wilson's death [Fnord!] renewed public suspicions about the Illuminati? Ha! If you believe that, you probably also believe that the moon landing [Fnord!] was real.

I'm really not sure why I'm sticking my neck out to tell you all this; you're all just a bunch of sheep anyhow.

Next week's Blawg Review [Fnord!] will be hosted by Diane Levin at her Online Guide to Mediation blog, not that I'll be around to see it.

TGIS: Thank God It's Schadenfreude! (99) . . . The Sequel!

This week's bonus joy in the misfortune of others comes courtesy of All Headline News, via Deadspin (from Tuesday, January 23; link good at time of posting):

A tattoo artist from Argentina is facing a lawsuit after drawing a penis on the back of an Argentinean football fan instead of his favorite team's official logo.

Reports said the teenager approached the tattoo artist and asked him to tattoo the logo of the Boca Junior football team on his back.

However, the tattooist was an avid supporter of the rival team and decided to play a prank on his young customer.

After reaching home, the victim proudly showed his parents his new tattoo and was surprised to learn that a penis was tattooed on his back.

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (99)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Saturday, January 20, 2007; link good at time of posting):

An administrative judge has denied unemployment benefits to a woman who was fired from her job for keeping a journal detailing her efforts to avoid work.

Emmalee Bauer, 25, of Elkhart, was employed by the Sheraton hotel company as a sales coordinator in Des Moines. While on the job, she kept a handwritten journal. A supervisor told her to stop writing on company time, but instead, Bauer wrote her journal, all 300 single-spaced pages, on her work computer.

In the journal, portions of which were introduced during a recent hearing regarding Bauer's request for unemployment, Bauer describes her efforts to avoid work.

"This typing thing seems to be doing the trick," she wrote. "It just looks like I am hard at work on something very important."

Bauer also wrote: "I am only here for the money and, lately, for the printer access. I haven't really accomplished anything in a long while ... and I am still getting paid more than I ever have at a job before, with less to do than I have ever had before. It's actually quite nice when I think of it that way. I can shop online, play games and read message boards and still get paid for it."

[Previous TGIS]

Give me your apathetic, your naive, your hypocritical masses yearning to complain...

Acclaimed historian Victor Davis Hanson recently completed a lecture tour of academia and was unimpressed both by the willingness of recent immigrants to criticize any perceived fault in their adoptive nation and by the unwillingness of native Americans to speak up in defense of their nation's traditional values:

Why would any wish to come to a country that they almost immediately fault—that takes more legal immigrants alone than all other countries combined? Is it that such contrariness earns acceptance from our own cynical and nihilistic elite? As I pointed out to these audiences, rarely do Americans in turn define newcomers here by the sins of their homeland.

Imagine, I went on, if Chinese students were reminded that the antecedents of their current government since 1945 murdered or starved to death 70 million of their own?

Should the Indian immigrant be reminded of suttee and the caste system?

The students seemed a little stunned, but had picked up the current American campus trait of thinking that if the United States can be shown not to be perfect, it is therefore not good—and that no one would dare to question the moral principles, or consistency, by which they press their own moralistic attack on the United States.

We worry about the Patriot Act. Castro and Hugo Chavez end free speech. We worry about morality in foreign policy, China contracts with the Sudan and Iran for all they can get. We worry about the glass-ceiling, the Islamic world doesn’t mention much about polygamy or female circumcision. We worry about the religious Right, Saudi Arabia arrests those with bibles. The world abroad, these students sometimes forget, does not operate on the principles of the campus library or student union.

Because the US is increasingly a country of the mind, not defined by race or ethnic background anymore, it becomes more, not less, critical to agree on a shared language, values, and respect for a unique past—if we are not simply to descend into tribalism. We are not a Japan or Saudi Arabia that can fall back on race or religion, when the notion of nationhood falters. We only have common ideals, a history, a language, and a Constitution. It is not written in stone that these exist in perpetuity without periodical homage and defense. So criticize the US when it deserves it; point out our flaws, but understand that the alternatives are far worse—and for a variety of reasons that are rarely any more discussed.

His entire post is well worth your time.

Getting Things Blawged

Blawg Review #92, hosted by Andrew Flusche at his Legal Andrew blog, is based upon the principles of GTD -- Getting Things Done. Coincidentally, Infamy or Praise is also based upon GTD principles, although in this case those initials stand for "Gosh, that's dumb."

Highlights of this week's edition include computer programs (both PC and Mac) to make lawyers more productive, blogging your competitors, and believing your own metaphors. So as to appeal to those in the legal blogosphere who do not like to get things done, the theme of Flusche's next Blawg Review effort will be "procrastination". He'll try to get started on it later sometime.

In keeping with this week's theme, my productivity recommendation is to get yourself an organized spouse. Thanks to my wife's diligent record-keeping and flawless organization, I installed TurboTax when the Bears-Saints conference championship kicked-off yesterday and had my federal and state taxes completed by the time the game was essentially over early in the fourth quarter. She's one-of-a-kind, however; your spouse's GTD aptitude and your results in relying thereupon may vary.

Kevin Thompson will get Blawg Review #93 done next week at his Cyberlaw Central blog .

As sure as water's wet...

...the family of Jennifer Strange, who died after participating in a "Hold Your Wee for a Wii" contest, will file a claim against Sacramento radio station KDND-FM (suggested slogan: "The station run by and for geniuses!"), which promoted the contest.

I suspect that I was not the only one who saw this coming but, flushed with success, I'll make two more amazing predictions:

1. The sun will rise in the East tomorrow.
2. After this claim is settled, the Strange family will be able to buy more than a few Wiis.

Is this what George Washington had in mind when he invented the First Amendment?

From Walter Olson at the Overlawyered blog, I learned that "a Colorado lawyer is arguing (on behalf of a client facing misdemeanor charges) that there's a First Amendment right to deliver dog droppings to someone's office as a means of political self-expression, at least if the lucky recipient is a member of Congress." As the Associated Press reports:

A retired French professor sent dog feces to her congresswoman's office after becoming angry with receiving too many mailings -- and her lawyer says she had a constitutional right to do it.

. . . .

Patricia Bangert, one of [Kathleen] Ensz's attorneys, admitted the act was "probably crude and boorish" but all the same likened it to a form of political protest such as Thomas Jefferson's criticism of the King of England. At a hearing Tuesday, she also cited Mr. Hankey, an animated, talking piece of human excrement depicted on "South Park," as evidence that it is commonplace to use feces to express disdain.

"Etiquette and propriety aside, it is commonplace in today's society to equate a distasteful or disliked person, situation or thing, to feces," Bangert said.

Perhaps there is a valid First Amendment argument for this, but I suspect that it may be prohibited nonetheless on public health grounds. Regardless, as a form of political protest, it may prove to be a one-hit wonder.

After all, even if you have a Constitutional right to send poo to your congressman, UPS and FedEx don't have to take your shit.

Programming Note: Today's juvenile legal analysis has been brought to you by Blogger, the letters "P" and "O", and the ordinal number "First".

TGIS: Thank God It's Schadenfreude! (98)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Wednesday, January 17; link good at time of posting):

A man trying to steal a car at gunpoint from a couple ended up being shot himself, Richland County Sheriff Leon Lott says.

Harold Levar Jeffcoat, 29, was arrested Sunday at the hospital where he was being treated for a gunshot wound to the buttocks, Lott said.

Jeffcoat was shot Saturday night after he stuck a gun into the stomach of a man getting into his car at a Wal-Mart in suburban northeast Richland County and demanded his keys, deputies said.

A woman in the passenger seat pulled a gun from the glove compartment and fired five shots at Jeffcoat, hitting him once, investigators said.

[Previous TGIS]

Spectrum ad Absurdum

Slate's "Press Box" columnist Jack Shafer pokes a few holes in the concept of spectrum scarcity which underlies the authority of the Federal Communications Commission (FCC) and makes the case for abolishing the agency:

Although today's FCC is nowhere near as controlling as earlier FCCs, it still treats the radio spectrum like a scarce resource that its bureaucrats must manage for the "public good," even though the government's scarcity argument has been a joke for half a century or longer. The almost uniformly accepted modern view is that information-carrying capacity of the airwaves isn't static, that capacity is a function of technology and design architecture that inventors and entrepreneurs throw at spectrum.

. . . .

Technology alone can't bring the spectrum feast to entrepreneurs and consumers. More capitalism—not less—charts the path to abundance. Hazlett and others, going back to economist Ronald H. Coase in 1959, have advocated the establishment of spectrum property rights and would leave it to the market to reallocate the airwaves to the highest bidders. Such a price system would tend to encourage the further expansion of spectrum capacity.

Owners would be allowed to repurpose the spectrum they owned—using, say, AM radio frequencies to carry pictures—as long as they didn't interfere with the spectrum of others. Companies in control of spectrum would even be free to subdivide their frequencies and rent it out to customers by the minute for the broadcast and reception of data.

If that last example sounds too weird for words, think of it this way: You rent a chunk of subdivided spectrum every time you make or take a cell phone call.

As I noted a couple of years back, the FCC itself has been steadily moving away from the concept of scarcity as a justification for some of its authority. Since the FCC v. Pacifica Foundation decision, the growing disconnect between traditional concepts of spectrum scarcity and the technical realities that many observers, Slate's Shafer included, have recognized have become apparent to many within the legal community.

The context of my earlier post was that the FCC's traditional "morality police" authority over broadcasters should not be extended to cable, satellite, and other types of broadcasting. I noted that these broadcasters make little use of the "scarce" spectrum and the opt-in nature of their service contrasts with the "pervasive" broadcasts the FCC has traditionally sought to control. Shafer takes that argument further, by questioning whether the Commission's existing authority is still justified. Ultimately, if spectrum scarcity was a somewhat dubious concept in 1934 and crumbled considerably over the past few decades, I believe that he (and others) may be right to suggest now that the FCC's entire raison d'être has essentially ceased to exist at all. Although Shafer's focus was somewhat different, we're on the same side of the argument.

What is most problematic about the FCC and similar "alphabet soup" agencies is that these tend to take on lives of their own and outlive the circumstances which led to their creations. It's worthwhile, then, to consider not just the origin of their authority but also the justification for that power, which may and often will change over time.

In the FCC's particular case, the basis for its authority is legislative -- it was established by the Communications Act of 1934 and empowered by Congress to administer a particular sphere of authority. The justification for its authority has changed, however. Its power to regulate new technologies and the broadcast industry flow from its authority to grant and revoke licenses, and authority allowed it by Congress because of the perceived scarcity of the spectrum. The Commission's authority over programming content is more tenuous and, as Pacifica and other changes made scarcity increasingly problematic as a basis for rule-making, the "pervasiveness" argument became the FCC's standard justification. Regardless, the legal basis for content regulation, as for technology oversight and broadcast controls, has its roots in the outdated concept of spectrum scarcity.

If spectrum scarcity is no longer a sufficient concern to maintain the current bureaucracy, where do we go from here? Shafer suggests privatization, to which I'm generally predisposed. Others might favor a drastically-revamped and reduced federal agency, but if so, what would that agency do? Take away spectrum regulation and the FCC is essentially just a mother hen for broadcast content; if that was an agency's sole function, would we support its mission?

Some communities are more concerned about and controlling of communications content, but as a nation, we've been generally cool toward the idea of a national morality overseer. Whether an agency could exercise that type of authority in isolation from another, more legitimate function like licensing of a scarce resource is questionable on First Amendment grounds, regardless whether it would be politically tenable.

Without a firm foundation in spectrum scarcity, the FCC as it currently exists is on shaky ground.

Giving the Finger to the Invisible Hand

Granted, my enthusiasm for and faith in the free market is something akin to religious belief. I do, however, accept that not all share my faith. Notwithstanding their lack of free market faith and fervor, though, I am still left shaking my head when, more than 230 years after Adam Smith's The Wealth of Nations was published, the less-faithful cannot understand and accept the basic truths of the free market.

Begin Digression

Irrelevant but nonetheless interesting Adam Smith fact: when he was four years of age, Smith was kidnapped by gypsies.

End Digression

The State of Mississippi provides this week's free market cautionary tale. When, in the wake of Hurricane Katrina, the state government decided, for short-term political gain, to invalidate standard exclusions in insurance policies issued to businesses and homeowners within the state, the effects of that attack on settled contracts was all-too-predictable: given the increased risk associated with writing policies in Mississippi, insurers would either increase their premiums to account for that increased risk or would stop providing insurance to residents of the state. As Ted Frank of the Point of Law Forum blog reports, the latter circumstance has now come to pass:

The attack on Mississippi's insurers over Katrina is already having consequences. Unable to be confident that the state will be willing to fairly enforce contracts as written (Oct. 11, 2005; Oct. 16, 2006), insurers are simply not issuing new ones. The town of Long Beach is finding that businesses are unable to reopen because of the lack of insurance. Insurance isn't the only reason the town's largest employer, Oreck Corporation, has picked up stakes and moved to Tennessee, taking with it 500 jobs and $300,000/year in property taxes, but it's been a contributing, and perhaps the deciding, factor.

Professors Grace and Leverty over at the RiskProf blog note that the government and residents of Florida have learned a bit -- but not much more -- from Mississippi's ill-advised decision. The new governor was elected in part based upon campaign promises to lower hurricane insurance premiums:

The Orlando Sentinel (1/14) has a nice story on the problems facing Florida. They are exactly as recounted here at RiskProf over the last three years. However, they still manage to throw into the mix a quote by a (justifiably) angry, but clueless homeowner.

. . . .

"Why are they hitting us so hard?" she asked. "They shouldn't have the right to jack prices up so much."

[The homeowner], like other Floridians, want [sic] a free lunch. The governor is going to have to tax all of the citizens in Florida to keep rates lower. Where is that money going to come from? The insurer of last resort is not called Citizens for nothing!

Alternatively, a rollback in prices will generally cause insurers to leave the state. In fact, this is what caused the birth of Citizens. It has happened before and will only get worse in the future.

In Florida, for a considerable financial outlay by the state's taxpayers, the government is choosing to introduce an economically-irrational factor into the free market -- their own willingness, without business justification, to assume risk. That's their prerogative, of course; even if they've chosen to manipulate it, at least they've chosen to work within the market.

I wonder, though, how long those taxpayers who sensibly chose not to build in higher-premium areas will patiently subsidize their less-sensible fellow citizens' hurricane insurance premiums. Moreover, when it occurs to residents like the one quoted in the Sentinel article that they're not getting the free lunch they wanted, what will their reaction be?

Whichever way it occurs, when this subsidy scheme raises hackles as the premiums themselves did, will the State of Florida remember Mississippi's mistake or repeat it? Will they accept that their choice to live in a hurricane-wracked state means that the market for hurricane insurance premiums is stacked against them or will they unreasonably believe that they can change the rules of the game without any market reaction?

As close to a guaranteed lawsuit as you're ever going to see....

It doesn't take a legal education or a ouija board to foresee the claims which will soon be filed in Sacramento against a radio station which arranged a "Hold Your Wee for a Wii" contest which caused the death of one of its participants:

28-year-old Jennifer Strange of Rancho Cardova [sic], CA was found dead inside her home on Friday afternoon after competing in a radio station-sponsored competition which pitted hopefuls against one another for the prize of Nintendo's latest and greatest. Instead of competing on the playing fields of Wii sports or the Japanese streets of Red Steel, however, contestants gathered inside the studios of Sacramento's KDND The End to see who could drink the most water without urinating. The ridiculously-titled "Hold Your Wee for a Wii" contest had entrants imbibe eight ounces of water every fifteen minutes for 90 minutes, after which they were given larger portions until a winner emerged. Ms. Strange -- who did not win -- left the studio in tears, and she was last heard from by her employers at Radiological Associates of Sacramento complaining of a terrible headache. Autopsy results released yesterday showed signs of water intoxication, wherein the body's electrolyte levels are dangerously unbalanced due to a rapid intake of the seemingly harmless liquid.

Strange was a mother of three who was trying to win the gaming console for her children. A representative from the station's ownership expressed his regrets:

John Geary, vice president and marketing manager for Entercom Sacramento, the station's owner, said station staff were "stunned" at the tragedy. He said: "We are awaiting information that will help explain how this tragic event occurred."

John, here's some information concerning water intoxication; now you can turn your attention to your legal defense. Best of luck with that.

UPDATE: Via Evan Schaeffer, I found this excellent commentary from Professor William Childs at TortsProf Blog:

[A]ssumption of risk requires knowledge of the risk; I just (finally!) finished grading a whole pile of exams addressing that very point. Grabbing the closest-at-hand hornbook (Shapo's), "Courts often require defendants to show that plaintiffs had highly specific knowledge of a hazard." In other words, it's not enough to say that "Well, everything in excess is bad for you, and she knew that." (Additionally, to respond to yet another comment from the same poster, this is already a subjective test and would require nothing like legislative action.)

Even if one thinks that the specificity of knowledge required is too great (and there's a good argument for that), I've seen nothing suggesting that the decedent knew that there was any risk -- certainly not one of death -- from drinking lots of water.

SECOND UPDATE: Game on.

Two of the Greatest Men of Our Time

Greg Worthen hosts the ninety-first edition of Blawg Review at his Public Defender Stuff blog. As befits today's birthday celebration for Dr. Martin Luther King, Jr., #91 is organized around several concepts from a passage in Dr. King's Letter from a Birmingham Jail:

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.

Those themes -- justice and injustice, shared responsibility, and interrelatedness of interests -- are reflected in the outstanding selection of posts from the past week in the legal blogosphere. From a New Orleans judge jailing an overscheduled public defender, to administration backlash against firms which provide pro bono representation for detainees at Guantanamo Bay, to the weaknesses in a study of public defender effectiveness, this week's issue has a particular focus on those who provide the spirited defense in our system of adversarial justice. Other topics are not neglected, either; consider just a few of the highlights, including de facto segregation, African-American inventors, and the commodification of the civil rights struggle.

This year more than most, I had an opportunity to pause and reflect on Dr. King's works. My daughter attends a wonderful kindergarten and is fortunate to have a teacher whom she loves and who seems especially adept at encapsulating and communicating complex concepts to the younger set. This past week, she advised me that today would be Martin Luther King's birthday; I asked her if she knew why we celebrated his birthday. She promptly advised me that he made everyone equal. I asked her what that meant and she explained that when one person has one candy bar and another has two candy bars, they're not equal. "So Martin Luther King made sure that everyone got the same number of candy bars?" I asked. "Yes," she replied, "and I think he did some other things, too."

So on this special day, let's spend some thoughtful time with the outstanding posts collected in Blawg Review #91 and around the greater blogosphere celebrating the life and work of Dr. Martin Luther King, Jr. Tonight, though, be sure to take a moment for yourself to enjoy a Hershey Bar and remember another man who, much as Dr. King, devoted his life to making sure that we all had an equal number of candy bars.

TGIS: Thank God It's Schadenfreude! (97)

This week's joy in the misfortune of others comes courtesy of the QuizLaw blog (from Monday, January 8; link good at time of posting):

Last Thursday, some Boston cops pulled over a car being driven by 25-year old Roger DePina. DePina initially caught the cops’ eye, according to the police blotter, because he and his passenger “were yelling and gesturing at [the] officers as they passed and continued driving while committing several violations.” The cops chased DePina, who initially refused to pull over. However, he finally stopped on the middle of an entrance ramp to one of the local highways. When the cops asked DePina for his license and registration, he pulled out this great line:

“You have no…right to pull us over, regular police can’t stop us on the highway, I know my rights, I’m in Harvard Law School!”

Needless to say, DePina doesn’t exactly know his rights so well, as the cops can absolutely pull him over.

. . . .

So DePina was arrested and has been charged with refusal to stop for police and reckless operation of a motor vehicle.

[Previous TGIS]

Please don't break glass.

The Anonymous Editor of Blawg Review has entrusted me with the keys to the kingdom, so to speak.

I'll be like the fire extinguisher in your office building, kept in a glass case -- check it once in a while, trust that in the event of an emergency it'll do what it's supposed to, and pray that you'll never need it. Should anything happen to Ed., I'm willing (and hopefully able) to keep things running at the carnival of legal blogging. As Ed. says, however, he's "not planning on going crazy, or elsewhere, anytime soon"; I and many, many others hope the glass in front of me will remain unbroken.

Copyright and write and write and write....

William Patry of The Patry Copyright Blog announced the culmination of seven years of effort -- the release of his long-anticipated treatise on copyright law:

I did 100% of the research and writing, never using assistants of any kind. The book is seven volumes, all text.

. . . .

In single space, printed form, the treatise is close to 6,000 pages and will be that length after the first year's updates: it is looseleaf and will be updated twice a year. It is, by almost 100%, the largest treatise on copyright published, and is the first new multi-volume treatise on U.S. copyright law in 17 years.

Patry's monumental achievement is available now from West. If the $1,500 price tag gives you pause, don't worry -- shipping is free.

It's just as well that Amazon doesn't have it yet, since I've already blown the gift certificates I received for Christmas on Xbox games. Patry on Copyright may just have to wait for Fathers' Day.

ID Required

More than a year ago, I wrote a post concerning the Real ID law specifically and the concepts of anonymity and privacy more generally. I concluded: "Anonymity is a pipe dream; let's concentrate on fighting the good fight for protecting privacy, not identity." I still believe that trying to promote official anonymity in many public activities -- like airline travel -- is counterproductive to the overall effort to protect civil liberties.

That post continues to get a fair amount of traffic these many months later. Perhaps that's so because it's a masterpiece of reasoning and argument; perhaps it's because it's a pragmatic approach to subjects which are still topics of discussion and matters of concern for many of us; perhaps it's just because it was indexed by Google.

Today, Professor Tung Yin of the National Security Advisors blog discussed identification requirements and takes a similarly pragmatic position:

[E]ven if the ID requirement isn't perfect -- and no security system can be -- it does seem to serve a useful function. What are the downsides of requiring ID? [Privacy activist John] Gilmore, relying on an MIT paper, argued that it helps terrorists detect the weaknesses of the system by identifying who gets targeted for searches. Terrorists could, Gilmore argues, probe the system until finding some terrorist who manage to get through on "dry runs."

But I think there's a difference between an ID requirement as something that represents a threshold obstacle that must be passed, versus using ID checks as a basis for determining who to subject to secondary screening. Gilmore may be right about how terrorists can probe the system, but his complaint really seems to be about targeted searches, not ID requirements, unless the latter is used as part of the former.

Otherwise, I have a hard time seeing the downsides of requiring ID for travel on planes. I have to carry a driver's license to get to the airport anyway (unless I take a cab, which given the distance from home to the airport isn't really a good option in eastern Iowa), so it's no hassle to me to show it to the TSA agent at the head of the security checkpoint in the airport.

With both civil liberties and national security, the perfect is the enemy of the good.

Please, Please, Please Let Me Win Eurovision

For those of us on the North American side of the drink, obsessed as we generally are with American Idol, we really have no appreciation for the meaning of the word "obsession" until we see how Europeans react to the Eurovision song contest. That 50-years-old competition launched the career of ABBA in the 1970s when they won with "Waterloo", was won by Celine Dion in the late 1980s, and last year caused a sensation when the highly-theatrical Finnish heavy metal band Lordi won it all.

Not performing so well in last year's competition was the entry from Britain, which has prompted the BBC, which selects Britain's national champion, to try to pull in a ringer for this year. Their secret weapon is Morrissey, who has proved himself as a songwriter time and again for decades, first as co-writer (with Johnny Marr) of the numerous hits by The Smiths and since as a successful solo artist.

Notwithstanding last year's unusual winner and the contest's support for music of all kinds -- rock, folk, Latin, and tribal songs are all common entrants -- Eurovision is traditionally dominated by meticulously-produced pop music. As such, the Beeb's selection of Morrissey has raised a few eyebrows.

He's undeniably talented and writes a pop hook as well as anyone, but he's an expatriate now -- he's lived in Los Angeles for many years -- and his themes are... well, challenging at times. As his Wikipedia entry notes, he's written songs about such topics as "child murder, gang violence, domestic violence, prostitution, racism, homosexuality, drug use, assassination, political protest, suicide and terrorism".

A college friend put it more succinctly one day when he heard me playing a few Smiths albums: "These songs are so cheerful. I love them until I actually listen to the lyrics. And then I want to kill myself."

Last evening on public radio's "Marketplace" program, the "Marketplace Players" speculated in song about what Morrissey's Eurovision entry will sound like:

Oh, Britain is dead and it's dying now
It's drunken and falling down
And broken its head, it's dead and bleeding
Stop feeding me lies, Britain!

I'll stab out my own eyes
We're smitten with money, wealth and fame
But lame like a horse that's been broken
Again and again

Our former colonies rise as we fall
India booms, Britain's profits appall
So let's end it all with tall bottles of poison
We deserve it
We deserve it
We deserve it, we deserve it, we deserve it
We deserve it
We deserve it
We deserve it, we deserve it, we deserve it

The lyrics are entertaining enough (and probably not far off as a prediction), but you really do yourself an injustice if you don't listen to the whole thing.

Five Things You Didn't Know About Me

I've been tagged by Justin Patten of the Human Law blog to continue a memetag that the kids are just so darn crazy about. Here are five things you probably didn't know about me:

1. I possess American citizenship and British nationality as a result of my birth in Northern England to American parents.
   
2. I became a Political Science major in college in part because it was one of the few courses of study which didn't have a math requirement.
3. I considered leaving college to join the military in early 1991 when the first Gulf War was underway, but the war ended so quickly thereafter that I reconsidered and stayed in school.
4. Although I once had a fear of flying, I no longer do.
5. My favorite album is Gentlemen by the Afghan Whigs. Perhaps when she's a teenager, I'll mention that to my daughter, but I strongly suspect that she a) will not know or care who the Afghan Whigs were, and b) probably won't understand the concept of an "album".
   

To complete things, I'll tag Evan Brown of InternetCases.com, Stephen Albainy-Jenei of Patent Baristas, I.M. Kierkegaard, Seth of QuizLaw, and Scott Henson of Grits for Breakfast. I would have tagged the ever-mysterious and enigmatic anonymous editor of Blawg Review, but he's already bared his soul enough recently.

iWant

I'd like to say that I'll choose to hold out for the newly-announced Apple iPhone until it supports true 3G bandwidth rather than slower EDGE technology.

I'd like to say that, but the truth is that I'll probably wait for the iPhone until my wife can think of a single reason why I need a device which is essentially four gadgets in one -- a phone, a camera, a widescreen video iPod, and a mobile internet client -- is less than a dozen millimeters thick, has a proximity sensor which changes device modes automatically depending on how the user holds it, and runs OS X.

I want a MacBook Pro for my briefcase, an Apple TV for my living room, and an iPhone for my pocket; what's more, when I buy my next car, I hope that there's an Apple iSedan on the lot.

UPDATE: Wired tries to talk me down from the ledge by pointing out four more problems with the iPhone (in addition to the lack of 3G support I mentioned above).

Don't Stop the Carnival

This week, Raymond Ward hosts Blawg Review #90 at his Minor Wisdom blog. This is another exceptional Blawg Review which demonstrates the strengths of both the blog forum and carnival format. Ward presents a broad collection of timely, informative, and entertaining links and stamps the whole thing with his own sensibilities, organizing it around the themes of the carnival season in his hometown, New Orleans.

The result does justice (one of the carnival themes, after all) to a great week at the legal end of blogosphere. Highlights include the Mayberry Sheriff Department's protection of Fourth Amendment rights, unsuccessful use of Hitler references in pickup lines, and overstaying your regal welcome.

Next week, Greg Worthern of the Public Defender Stuff blog has his work cut out for him when he hosts Blawg Review #91 after three weeks of Blawg Review goodness from the majorly-wise Raymond Ward, a lone mummer, and Santa Claus. Not to worry, though -- Worthen is already mobilizing the troops for his presentation on Martin Luther King, Jr. Day. The carnival never stops.

In the Swim

My daughter started her swim lessons on Saturday, well-equipped with a new suit, cap, and goggles from Santa. (Note to self: research whether Santa's elves have committed trademark infringement by putting a Speedo logo on the products they've made in their workshop.)

Geared-up and waiting for her lesson to start, she was fussing with the cap and goggles and complaining generally about the slow start to her aquatic experience. At some point in her airing of grievances, I activated the parental hearing filter and responded, if at all, with an "uh-huh" here and there. Through the filter, however, I heard her becoming more and more insistent that she couldn't see well through her new goggles, which were "too blurry".

Finally, exasperated, I told her to look at me so that I could admonish her to stop her complaining. At that point I noticed, on each lens, protective stickers clearly marked "Remove Before Use".

I made a grand production of adjusting straps, lifting and replacing each lens, and peering intently at the goggles from every angle. Quietly, I removed the stickers.

"Better?"

"Yes! I can see everything now! How did you fix it?"

"Daddy's magic, sweetheart."

29 and Holding

An entertaining political quiz is making the rounds (see here and here). It's a dozen years old now and shows its age in spots -- one of the questions asks about former Surgeon General Joycelyn Elders and another, concerning acceptance of gay marriage or its equivalent, is probably less an ideological bellwether now than it was in 1994 -- but it's entertaining nonetheless. I'm a 29, which I think equates to solidly conservative and which puts me between Bush 41 and Jack Kemp on the political spectrum.

UPDATE: Professors Reynolds and Volokh have also linked to the test (although I'm sure Infamy or Praise is responsible for a much higher percentage of click-though traffic), but think that it's "pretty dumb" and "especially flawed", respectively. I don't really disagree with them about that, and perhaps they'd agree with me that "pretty dumb" and "especially flawed" things can be "entertaining nonetheless", as I remarked about the quiz. Let's just make it Exhibit C after Exhibits A and B -- Paris Hilton and Harold and Kumar Go to White Castle.

TGIS: Thank God It's Schadenfreude! (96)

This week's joy in the misfortune of others comes courtesy of Reuters (from Tuesday, January 2; link good at time of posting):

A mob of 400 people burned the house and cars of a Spanish villager known as the "Bald One" on New Year's Eve, claiming revenge for seven years of his threats and violence against locals, a newspaper reported Monday.

Javier Bernui often went into bars and supermarkets in the central village of Villaconejos, 35 miles from Madrid, with a pistol or a knife, mayor Lope Benavente de Blas told Spanish daily El Pais.

"He would take what he wanted and never paid anything. He had been in prison," said Benavente de Blas. "Bernui didn't hesitate to use violence against the residents in bars, drove his car wherever he liked and did whatever he felt like."

On December 23, Bernui entered a bar, thumping the bar and pushing other customers aside. A man told Bernui enough was enough and gave him a beating.

Bernui responded by returning a week later with a number of friends to destroy the bar.

The attack was the last straw for some 200 of Villaconejos's 3,400 residents, who went to Bernui's house later that day. Civil Guard police contained the crowd and arrested Bernui when he fired two shots, one at the ground and another into the air.

But 400 villagers returned the next day, setting fire to Bernui's home, garage, two cars, a van, two quad bikes and a motorbike and blocking the path of firefighters.

[Previous TGIS]

Noticezilla Sees Its Shadow; One More Year of Overregulation Predicted

This morning, one of our company's human resources associates carried-out a hallowed corporate New Year's tradition -- the annual posting of the new employment regulations poster.

This year's poster of Federal and California employment notices is more than two feet wide and nearly four-and-a-half feet long. For those of you keeping score, this represents an increase in surface area from the original 1907 poster of approximately 25,000%; that ur-poster had but a single line -- "If you can read this, you're fired for leaving the factory floor." Ah, the good old days!

Despite the fact that it's almost twice as tall as Mini-Me, the producers of this year's poster helpfully suggest that it "easily fits on a door, in a break room, or a main hallway". The poster notes that it is a violation of Federal and State laws for employers not to post these notices on a door, in a break room, or a main hallway; notwithstanding, it also indicates that it is a violation of Federal and State laws to post Noticezilla on a door, in a break room, or a main hallway as it impedes emergency egress, break enjoyment, or easy movement through public areas.

As someone who tends toward libertarianism, I cringe at the sight of such ridiculous overregulation. As a corporate attorney with a small child who'll someday need orthodontia and college education, I smile at the prospect of secure employment.

UnbefreakinlievableTube

Via Jonathan Last at the Galley Slaves blog, here is a YouTube montage of key moments from the best football game ever:

Unbefreakinlievable

Tonight's Fiesta Bowl between Boise State and Oklahoma was the best football game I've ever seen.

Not the best bowl game. Not the best game this season. Not the best college game. The best football game ever. Period.

Consider just from the final couple of minutes or so of the game onward: Oklahoma scores and converts two points to cap their comeback. Jared Zabransky's pass is then intercepted and returned for a go-ahead touchdown. Drisan James and Jerard Rabb perfectly execute a catch-and-lateral on a fourth-and-long play with just seven seconds left to send the game into overtime. Adrian Peterson scores on the first play from scrimmage. Surviving another fourth down play earlier in their overtime drive, Boise State scores a touchdown and elects to go for two rather than continue the overtime.

Finally, on a trick play, Zabransky hands-off to Ian Johnson, who scores to win the game. During his post-game sideline interview, Johnson proposes marriage to his cheerleader girlfriend, who tearfully accepts.

If this were a film, it would be so ridiculously melodramatic that I'd be ashamed to have watched the entire thing. As it is, it's the best football game I've ever seen.

[Update]

Mum's the Word

It's never happened that the Blawg Review of the Year was the first one of the year, but (assuming the Anonymous Editor is willing to accept the award him/herself) this year's award may just go to the first of 2007 -- Blawg Review #89 hosted by the Anonymous Editor of Blawg Review.

Number 89 is based upon the Christmas season tradition of mummering, whereby disguised visitors ("mummers") would be allowed into a home and, if his or her identity could be guessed after a few questions are answered, the mummer would entertain the visited family before moving along. The Anonymous Editor invites the many legal bloggers mentioned in this week's post to pose questions and attempt to guess the enigmatic Blawg Review patriarch's/matriarch's true name.

Ed.'s twist on the mummer tradition is to entertain us before we guess his/her hidden identity. Collected this week are several dozen posts from and links to outstanding legal bloggers. From reviews of the old year to resolutions for the new, from the death of Gerald Ford to the death of Saddam Hussein, from giving birth in a jailhouse elevator to eating Courthouse Burgers and Lawyer Fries at the "No Lawyers" Bar and Grill, this week's post is probably the most comprehensive and entertaining in Blawg Review's history.

If we didn't know this already, Blawg Review #89 also demonstrates what a diverse and scattered lot we legal bloggers are. Undoubtedly, some of us are more scattered than others, but I digress.

As to Ed.'s invitation to attempt to discover his/her identity, I think I'll probably pass. Over the last couple of years, I've had my periods of curiosity but I've also come to accept Ed.'s anonymity along with his/her guidance and friendship, both of which I've enjoyed and appreciated immensely.

Happy New Year!