23 December 2009

A Round Tuit (12)

A Round Tuit

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.

Unsportsmanlike Conduct Signal

As the NFL playoffs race heats up and the college football bowl season gets underway, the legal blogosphere had sports covered this week — from football and soccer to baseball and softball, with a snowball fight and a passing reference to basketball thrown in for good measure.

It's been more than a decade since Jerry Maguire hopped around screaming "Show me the money!" and it's nice to see that the backstabbing and client-stealing that movie depicted is still alive and well. Michael McCann notes a case filed recently wherein the former agent for a Red Sox pitching prospect alleges that the pitcher's new agent tortiously interfered with their preexisting relationship. McCann was quoted in a news account of the suit: "Generally speaking, players can change agents at their discretion. There is certainly evidence of agents poaching clients (in cases) that don't result in litigation. Maybe it's unethical; maybe it's wrong; but it happens." While these revelations seem to be the least surprising since Captain Renault was "shocked, shocked" to learn that gambling was occurring at Rick's Café Américain, McCann writes that "If Athletes Premier International v. Hendricks Sports Management goes to trial, it could pose significant ramifications for agents who encourage baseball players to switch agents (which traditionally has not received legal scrutiny...)."

Jerry Maguire's client, football player Rod Tidwell, described "show me the money" as "a very personal, a very important thing. Hell, it's a family motto." One might just find that saying on the Jordan family crest as well. As Mike Masnick reports, Michael Jordan accomplished much in his career in basketball and baseball, but humble sort that he is, he's reticent about accepting accolades from well-wishing admirers. Of course, it's sometimes difficult for us to see the humility for all the trademark infringement threats:
[In Chicago,] two of the larger regional supermarket chains, Jewel and Dominick's, recently put out ads congratulating Michael Jordan for all of his accomplishments (at the time of his induction into the NBA Hall of Fame). But, according to Jordan and his lawyer these newspaper ads celebrating Jordan's accomplishments were actually trademark infringement. Now, it is true that there are certain publicity rights when it comes to celebrities and "endorsements," but it's hard to see how a congratulatory message from local Chicago grocers would be seen by any moron in a hurry as an "endorsement" (no matter how good his outside jumper might be). I guess the solution is just to stop recognizing Jordan's achievements altogether.
Bullying enthusiastic sports fans with spurious intellectual property claims seems like a counterproductive strategy, but it's by no means a peculiarity of the sports business on this side of the Atlantic. Masnick also noted this week that Scotland's Highland League has threatened to fine a schoolboy who (with the club's permission) videos the sparsely-attended games of a local amateur soccer side and uploads the videos in ten-minutes-long clips to YouTube for viewing by those who couldn't attend. As Masnick explains, the league secretary's threat has no basis in law — the action on a football... er, soccer pitch cannot be copyrighted and the copyright in the video clips the boy creates is his own:
This isn't a question of competing with broadcasting rights. No one else is filming the games. It's just the kid. Doing it as a labor of love to help promote the team he loves.

The club itself is thrilled with Smith filming the games, and is upset that the league is trying to fine him.
But enough about football; now let's talk about football. Dave Hoffman takes aim at an oft-repeated claims that linemen generally and offensive linemen particularly are smarter than players elsewhere on the field. The bases for these claims are the "Wonderlich" test, a test used by NFL teams and others to test players' general intelligence, and a widely-circulated chart correlating Wonderlich results with position. Although he, like many others, thought that the claims "just feel true", he took a closer look and found that the theory relied on outdated data and was more full of holes than the Redskins' defense. In particular, the "selection mechanism" suggested by proponents of the claims (explaining how smarter folk tend to end up to the O-Line) was questionable:
What possible mechanism would make the players “closer to the ball” “smarter” than those farther from it? The baseline hypothesis is that linemen need superior decision making skills: quick judgments about blitzes, better memory of the intricacies of the plays and blocking schemes, etc. But this seems hard to swallow: doesn’t the running back need those exact skills? And why does the punter, whose job seems pretty one-off. And the operation of this idea is weird, however popular it might be: the idea seems to be that there’s an undifferentiated mass of football players in pop-warner leagues. Some are smarter than others. The smarter ones get pushed to the o-line and the QB position; the less smart ones are pushed to become little wide-receivers. Then, what happens? In a feat of unprecedented lamarckian adaptation, the little o-linemen become huge o-linemen; the little wide receivers become lithe, tall, or very, very fast.

Or maybe the selection operates over time in a different way: dumb o-linemen, notwithstanding their physical characteristics, are selected out of the football tournament; wide-receivers are encouraged to be stupid. You might have thought football was a game about bashing the other guy, being a freakish physical specimen, and being willing to sacrifice your body and brain for the team. On this hypothesis, it isn’t: it’s a selection process for decisionmaking skills. Look, I guess this is possible, but it seems quite unlikely.
Hoffman suggests that the "closer to the ball" intelligence theory may be based in outdated or insufficient data and supported by strained suppositions, but what really gives it legs are enduring racial stereotypes; he notes that "offensive linemen are disproportionately white in a league that is mostly (70% or so) composed of African-American players. The Wonderlic, unfortunately, produces scores that are racially skewed." Elsewhere in the football-loving blawgosphere this week, Elie Mystal commended a motion to continue filed by an Alabama attorney who wants to join the rest of the Crimson Tide nation at the team's national championship date with Texas; the motion, which Mystal characterizes as "one of the most rational arguments you are likely to hear today", concludes:
8. It is also understood that many of the witness involved are trying to acquire tickets to the game and/or scheduled to be at the game in Pasadena on January 7th and certainly any juror selected to participate will likely be preoccupied and not able to devote their full attention to the case before them during the week of January 4, 2010, and therefore, the parties would be prejudiced by the distraction caused by such a major event of such significant importance to so many people in this State.

9. ROLL TIDE!! ( although my secretary is for the other great team of this State, she feels that I need to attend this championship game!); and may the Longhorns be defeated.
Mystal was dismissive, however, of a suit filed by an injured New York City softball player. Typically, when a player is injured, one of the allegations is that a failure to train the player exposed him or her to unreasonable risk and thus the team/league/[insert deep-pocketed defendant name here] should be held liable. Here, sure enough, the player alleges that she was not taught how to slide and was injured as a consequence; the problem, though, is that her injury occurred during a sliding drill:
We could talk about assumption of risk in the context of high school sports. But we shouldn’t have to. More importantly, city lawyers — on the taxpayer’s dime, mind you — shouldn’t be forced to defend this ridiculous lawsuit. She broke her ankle running the bases. You don’t get a cash prize for that. You get some ice and an ACE bandage for that.

You know, I find it hard to believe that a 15-year-old girl really wanted to sue the city and the school because she was clumsy. No, this reeks of “parents looking for a payday.”
But enough about softball; now let's talk about snowballs with a legal blogging matchup which is perhaps less "Wide World of Sports" than it is "Battle of the Network Stars". After Reason magazine posted a video of a Washington, D.C. police detective drawing his service weapon while confronting a crowd at a snowball fight, Ann Althouse wrote that she was "siding with the cop":
There is a difference between a snowball fight and throwing snowballs at moving vehicles. In a snowball fight — like this cool one in Madison a couple weeks ago — you have voluntary participants playing at fighting with each other. Throwing snowballs at cars, on the other had, is surprising people who happen upon the scene and it's distracting them — and doing so at a time when it is particularly difficult to drive. Drivers do not know the extent of the interference when it begins, and they can be frightened or easily stimulated into braking or accelerating — when there is snow and ice and when pedestrians are nearby.


[Detective] Baylor got out of his car, apparently, to try to deal with disorder that he couldn't have known the precise nature of. Alone, facing a confusing crowd, he got his gun in his hand.
Sometime after her original post, she noted that the snowball fight was a prearranged affair; 40 minutes before the confrontation with the police detective, the organizer blogged his announcement of "The DC Snowpocalypse Guerilla Snowball Fight 2009". When the organizer described the detective as "a random thug with a penchant for violence" and suggested that many in the crowd "feared for their lives and those of their friends", Althouse thought the claims were insincere:
Watching the video, I wondered why so many people were laughing and hanging around... and taunting the man. That's not how I'd behave if I thought I might be near a "random thug" with a gun in his hand. I'd say their behavior shows they knew he was a cop attempting to follow whatever the protocol is when one man faces a mob. Unfortunately, the video does not show the entire confrontation.
Scott Greenfield took issue with Althouse's defense of the police response, satirically suggesting that she was trying to outline strict rules for snowball fighting, the violation of which are punishable as a capital offense:
Althouse found some of the words chanted by the crowd distasteful. I did too. But I wouldn't advocate for, or excuse, their being shot for having chanted unpleasant words. Sticks and stones, Ann. Not even snowballs. And let's not forget that had Det. Baylor not stopped his Hummer, whether to break up unruly street thugs or because he was pissed off at someone hitting his shiny car with a snowball, and pulled out his gun, there would have been no chanting. Independent intervening event, lawprof?


If only the organizers of this vicious snowball fight had chosen a more appropriate site, Althouse would have endorsed it as good, clean fun. After all, no such thing as a fun snowball fight might happen spontaneously, as in wherever the people were at the moment it began. Only evil snowball predators bent on law-breaking destruction would engage in such vicious frivolity.

There's nothing wrong with Ann Althouse deciding that had she been walking the streets of D.C. and came upon this snowball fight, she would have just kept walking. It doesn't have to meet with everyone's idea of a good time, or a good choice. But to suggest that a police detective pulling out a gun, with the obvious potential that it would discharge a projectile and strike someone, is beyond the pale. We don't execute people for engaging in snowball fights. Even snowball fights that break Ann Althouse's rules.
I for one was afraid that the prospects for sports-related legal blogging seemed dim once the college and professional football seasons are past and the drifts of the 2009 Snowpocalypse have melted; thankfully, the city of San Francisco will rescue us from the sportsblawging doldrums by pointlessly litigating Major League Baseball's prospective move of the Oakland A's to nearby San Jose. Many of you who are familiar with Bay Area geography will correctly note that Oakland and San Jose share at least one common characteristic — neither city is located in San Francisco. So then, what's San Francisco's beef with the move? Show me the money! Nathaniel Grow gives us the play-by-play:
San Francisco's purported basis for suing MLB stems from its financial interest in the Giants. The city reportedly receives $3.6 million in rent the from the Giants annually for AT&T Park, as well as taxes on game day revenues such as ticket sales and parking. The city apparently believes that these tax revenues would be threatened should the A's relocate to San Jose, a territory which has historically been assigned to the San Francisco Giants.


However, even if San Francisco is able to establish standing, such a suit would also place the city in the awkward position of effectively asking a court to enforce MLB's anticompetitive territory allocation system. While professional baseball's practice of granting franchises exclusive rights to certain geographic territories has previously been challenged by those seeking to enter a restricted market -- suits which have historically been dismissed pursuant to MLB's antitrust exemption... a suit by San Francisco would mark the first time that MLB has faced a lawsuit seeking to require the league to enforce this restriction.

Sinatra - Marriage on the Rocks

It's often said that the holidays are amongst the more stressful times for marriages and there were certainly a number of supposedly-close relationships evidently feeling the strain this week. Take, for example, the relationships amongst public defenders and private defense counsel. Prompted by a comment to an earlier post at his site, Gideon considered whether filthy lucre represents a real division in the defense bar:
While I acknowledge that in a purely economic sense we have divergent interests, I always thought that we were united by our ultimate goal. That we could rise above the pettiness of the pursuit of the dollar and instead join hands and smoke a Jerry Garcia fueled joint of peace, love and Constitutionality.


I guess I’ve never considered the economic viewpoint of the private attorney, because I’ve never had to. So I’m doing it now. I know that the regular voices in the blawgosphere will certainly deny this, but they’re a small minority (statistically speaking). So what of the majority? Is there a wedge between us? Is it money?
Scott Greenfield suggested that some of Gideon's disbelief was "feigned" (while Gideon subsequently characterized some of Greenfield's post as "hyperbole"), and discussed why the "wedge" between public defenders and private defense counsel is somewhat overstated:
To the private criminal defense lawyer, the defendant who can afford a lawyer is their domain. The PDs are taking away their next meal. Where's the mutual love? Defend the poor and downtrodden all day long, but let the private lawyers make a living too. While PDs see themselves as just helping those in need, private lawyers see them as poaching on their turf.

This raises the question of how one distinguishes a defendant who can pay from one who cannot afford an attorney. Here too there's a schism. For most PDs, and some private lawyers, a defendant who can afford counsel is one with cash in the bank (or the suitcase, as the case may be). Most private criminal defense lawyers, however, would contend that defendant's possessed of assets, house, car, jewels, are clearly capable of paying.


Call me Pollyanna, but I believe that the really greedy lawyers are a distinct minority, and most private criminal defense lawyers put the interests of defendants well ahead of grubbing money. But they still need to feed their families, and that means they need to represent paying clients.
Distinguishing those who can pay from those who can't was the focus of Gideon's follow-on post. Contending that the current threshold is set far too low, penalizing those without real ability to pay, he nonetheless conceded that the threshold needs to be set somewhere:
The problem, as I can see it, is this: the indigency guidelines are a joke. Connecticut determines indigency based on the Federal Poverty Guidelines. For a single individual with no dependents, that’s about $13,000 a year. How many people do you know that make $13K a year?

I know many who make 4 times that and yet wouldn’t be able to “afford” a lawyer. Because it’s not just income that should determine resources, but disposable income. The average household income in the country was roughly $50,000 in 2008. That’s gross income. In CT, the figure is $57,000-ish, which is the highest in the country.... So one might be tempted to say that’s a lot of money and surely the average person could hire a lawyer. But that’s not true at all. From that income, you remove taxes, rent, utilities, insurance and you can see how that figure gets whittled down to next to nothing. Then how is the “average” person expected to bear the heavy expenses of a criminal prosecution?


This is economics plain and simple and I can understand that. I think it might be instructive to draw a line somewhere: there’s a difference between those that have the ability to pay for their representation and choose not to and those that don’t realistically have that ability.
The disagreement between Gideon and Greenfield was nuanced and civil; the disagreement over legal social media consulting hasn't been and certainly wasn't this week. In a lengthy post, Brian Cuban railed against the many unsuccessful, suspended, disbarred, or otherwise "former" lawyers who've switched to selling social media "snake oil":
There is NO such thing as a social media expert in the legal realm yet. It simply has not been around long enough to develop a body of work. At most, everyone doing well in social media has drawn on unique life/professional experiences and if the experiences are unique enough, they have found niche to wrap basic social media principals around. Nothing wrong with that. If there is a way teaching social media is supposed to work, IMHO that’s it.


Most have not practiced long enough to have unique experiences or generated revenue in any way shape or form other than billing hours. And if they were so successful in using social media during their practice why are they not still practicing? Seems like a fair due diligence question. They voluntarily left this incredibly successful practice of law making millions using social media to start over and teach you how to use social media so you can make millions? Snake Oil tasting any better?
Bottom line before you drink? Its all about disclosure. If people would do the same due diligence they would certainly do in the brick and mortar world before they hired a lawyer they would find out the following:
The attorneys holding themselves out as having “superior knowledge” (I refuse to use the word expert again) to help you navigate the social media jungle to the pot of client gold on the other end, are often attorneys who are no longer practicing because they could not support themselves, were disbarred, sanctioned or have limited practice experience and often never generated new client portables when they were practicing.
In particular, Cuban singled-out new social media consultant Kathleen Scanlon, whose involvement in mortgage fraud led to her sudden departure from the New York Bar and a Twitter beating (a "Tweating"?) by Brian Tannebaum (mentioned in last week's Round Tuit post). For his part this week, Tannebaum discussed whether desperate economic times have caused attorneys to follow these reinvented, self-proclaimed social media gurus:
Do lawyers not do their own research to see the background of the person who wants them to "blog for profit" or if the latest "twitter for lawyers" book was written by a lawyer who is suspended, or if the real estate "lawyer" who wants lawyers to network with her firm was recently convicted and is currently delinquent with the Bar?


These are desperate times.

And desperate lawyers would rather follow people lying about their qualifications as social media experts than real lawyers who may have a tip or two about becoming not a better tweeter, but a better lawyer.
Apart from Kathleen Scanlon, a couple of others on Tannebaum's "do not follow" list are the disbarred Grant Griffiths and the suspended Sheryl Sisk Schelin. Mark Bennett has written often about this unpleasant rise in social media guru-ing so often that he's started a new blog, Social Media Tyro, just to hold it all. He discussed the ease with which attorneys who've been dishonorably-discharged from the profession can reinvent themselves as social media gurus and suggested that it's becoming a "refuge for the disbarred":
I sympathize with [Kathleen] Scanlon, trying to make the best of the very bad situation she’s gotten herself into. She may well have a partner and employees (if you believe her website, she has a staff of beautiful people in expensive suits) who are depending on her to make a smooth transition to what she calls her “hiatus,” and a family depending on her to bring food home during that break.

I also understand the appeal of “Social Media Consultant.” It is a title that any idiot can give himself; it requires no sort of expertise whatsoever, and no equipment but a computer with an internet connection (which the former lawyer won’t be using to practice law). Barriers to entry in this specialty are very low. Scanlon will not be the first lawyer who, forced out of the practice of law, has redefined herself as a blog or other social media expert.


So what’s wrong with that? If some naive lawyer, not having the first clue about online social media, wants to pay a convicted, disbarred, or otherwise disgraced ex-lawyer to show her the ropes, what harm is done?

None, if the naif knows what she is getting and the consultant doesn’t lead her to do anything untoward or deceptive. But when the disgraced lawyer is deliberately concealing the fact that he is a disgraced lawyer, these questions are raised: is the naif getting what she thinks she is getting (or is she trusting someone whom she would not trust if the truth were revealed); and will the consultant, for whom deception has worked, teach the naif to be open and honest (or will he teach her what worked for him: concealment and deception)?
While agreeing (with Brian Cuban) that no one is a social media expert at this stage of the game and that economic turmoil has driven more than a few attorneys into consulting, Donna Seyle took issue with his suggestions (and others') that the social media consulting field was rife with former attorneys who were failures at the practice of law; she listed ten reasons (apart from failure) why a lawyer would leave the profession to work as a social media consultant:
Here are my top 10 reasons why any lawyer who is active in social media, has used it to market themselves, and believes he/she can help other lawyers use these tools to market their practices would change careers:
  1. They don’t like practicing law.
  2. They really enjoy participating in social media communities.
  3. They’ve discovered new and different ways to use these mediums to create successful marketing strategies.
  4. They’ve found that developing new businesses in the social media arena motivates them to be successful.
  5. They would rather work with lawyers than against them.
  6. They enjoy writing, speaking and being creative in their use of new marketing tools.
  7. They are really excited when they wake up in the morning and realize they don’t have to go to court.
  8. They hands-down prefer a tweet-up over a local bar dinner.
  9. If they stay up all night working, it’s because they’re on to something and can’t stop.
  10. The social media world is vibrant, challenging and cutting-edge.
While that list might make a fine start to an overpriced book, the market for overpriced books is already becoming a bit crowded. Just this week, Brian Inkster gave a generally-positive review to Adrian Dayton's Social Media for Lawyers: Twitter Edition but was more than a bit taken aback by the price tag: "The only drawback to some may be the price tag attached to the book. At £145 this seems a bit steep for a 77 page book of this type." Lured by the prospect of untold Twitter-based wealth, Charon QC (whose alter-ego has worked in legal publishing before) determined to become a "social media maven and guru"; he reported (on Twitter, naturally) that after twenty minutes he'd written a Twitter-for-lawyers book and that it would soon go on sale for only £1,250 plus tax. As he notes, however, "[t]here is a wealth of FREE material out there"; to compete, he may have to lower his prices just a bit (but only a bit). Sheryl Sisk Schelin has also written a book on the topic, which she had priced at $47; she's announced that she'll lower the price to seven dollars for the first fifty people who agree to return to her site and review it six weeks later. Charon, we have $7; will you go to $6? Do I hear any lower offers? Mr. Dayton? Schelin also defended those who look to others to teach them the "how" of social media and those consultants who are willing to teach them for a fee:
[Brian Cuban] thought that you — meaning the average busy solo or small firm lawyer reading this blog or looking at Twitter as a marketing tool — should just go search for information freely available on the web, put it all together yourself, and basically learn by doing.

Frankly, I agree — that’s certainly a valid way to go. Knowledge earned by doing often stays with us far longer than that which is handed to us. That’s why I always try to show my clients how to do it themselves, instead of doing it for them. That’s how I learned to blog, ten years ago. That’s how I learned social media and social networking. That’s how I learned CSS and HTML/XHTML.

Let me reiterate, so there’s no confusion on this point: There’s nothing wrong with this approach!

If you have the time, that is.

But a lot of us don’t. And that’s OK, too. They need a little extra assistance, and there’s nothing wrong with that, either.


I’m not going to let Twitter bullies stop me from trying to help folks who need it, whether those folks are lawyers or bankers or real estate agents or maids any other kind of service provider.

I’m just not. And I suggest you don’t let them stop you from getting the help you need, either.
For better or worse, when it comes to social media and otherwise, the profession is changing around us. Whether law schools are recognizing and adjusting to those changes is a matter for some dispute. In previous Round Tuit posts, I've mentioned the growing divide between practitioners and academics; is that divide becoming a formal separation on the road to divorce? Dan Hull might not be suggesting a quick visit to Miguel Santos (see the Sinatra photo heading this section), but he does suggest that law schools are failing law students and the firms who employ new lawyers:
We suspect that legal education in recent years appears to have done many students a disservice by making them think that law school--by its very nature of being focused on teaching you "to think" like a lawyer--could ever give students more than 10% of what they need to be full-gauged lawyers and problem solvers.

Law done right is a hands-on profession and takes everything you have, and organizational and managerial skills the schools cannot teach or be expected to teach.

"Thinking like a lawyer" does not inform your every synapse, breath, and moment.


At a minimum, we wish that law schools could convey a few truths, and what might be called "old verities", to part-time clerks, summer clerks and grads:

1. Even for the most brilliant, motivated, resourceful and ambitious people, law practice is time-intensive and very hard--especially in the beginning.

2. Graduating from law school with top grades and willing to give practice the old Siwash try is only the beginning of your travail. Again, practicing law is hard. Even harder to learn how. And hard to maintain as years roll by at a comfortable and honorable level of quality. You don't get to say this much: "Sorry, Jack, but I'm on my break."

3. Real-life client problems pose extraordinary ambiguity and complexity (you can't "Google" the answers; you may fret over some projects and have to stay late; at first, it may interfere with your relationships and your "real life").

4. Maybe you'll find that private practice is not for you. It's not about the lawyers, courtliness, lawyer-centric cults of "professionalism", bar associations, wearing cool suits, prestige, money or being in a special club. If you stay in it for all that stuff, even if you make big bucks, you will regret it. No, you will hate it.

5. Clients. Talented people with JDs are legion. It's really about those you serve.
Aaron Street cites a number of factors which prospective law students should carefully consider, including signs that legal education is in the midst of a bubble, wherein law school costs and student debt loads are rising while the number of permanent legal positions are diminishing:
The law is still an honorable profession. Attorneys have a unique role in supporting justice, improving our civil society, and maintaining the rule of law. There will always be some need for talented legal professionals. At the moment, however, there are too many licensed attorneys for the demand of their services.

Even in the midst of a law school bubble, law school is still the right choice for the handful of people who truly belong in the profession.

To those prospective law students applying to law school as a fallback in a bad economy, or because you want three more years to figure out what to do with your life: please save yourself time, money, and a huge amount of stress; do not apply to law school.

Odds n Ends Shop

What's in a name? We'll leave that for the poets to decide; all that we need to know, according to former South Dakota State Representative and convicted child molester Ted Klaudt, is that one's name is protected from mention in news media by common law copyright. Marc Randazza reports:
Klaudt claims that he has a "common law copyright" in his name, and thus any news organization or other publication that uses his name must pay him a licensing fee of $500,000.

It gets better.

Mr. Klaudt apparently started sending notices of his "common law copyright" to news agencies in order to stop them from reporting on the fact that he is serving time for raping his foster daughters. Klaudt was convicted on four counts of rape for fondling his underage foster daughters in "examinations" that he performed on them under the ruse of claiming that he was going to help them sell their eggs to infertile couples. The sick bastard got 44 years in prison for rape and another 10 years for tampering with witnesses in his trial.

Klaudt's letter to the Associated Press claims that anyone who wants to use his name must "file a written request 20 days in advance," and that he would pursue claims against anyone who violated the notice.
Uh oh. Is this one of those old verities that my law school neglected to teach me? Can anyone loan me $500,000 to license that mention of Klaudt's name earlier? (And then another $500,000 for the one in the previous sentence?) Crap. How much can I get selling my daughter's Christmas presents on eBay?

Thankfully, Mike Masnick (whose name is, for now, still free to mention) talked me down from the ledge; he notes that "[u]nfortunately for Mr. Klaudt, except in extremely limited circumstances, the US does not recognize 'common law copyright.'" Eugene Volokh explains further:
[Klaudt's claims are] legally wrong on so many levels: Short words and phrases can’t be protected by federal copyright law; common law copyright has been almost entirely preempted by federal copyright law, and in any event was applicable only to unpublished works; copyright of any sort would only apply to your own creative work, and Ted Klaudt’s name wasn’t created by him (unless it’s an assumed name); fair use would in any event allow people to use the name to refer to him, if there was a copyright claim to begin with, which there isn’t; and trademark law doesn’t preclude uses of a trademark in an article to refer to the trademarked item.
Whew. It looks like my daughter will have a happy Christmas after all.

Stephen Bainbridge was highly critical of the recent (unsuccessful) attempt by Great Britain to arrest former Israeli foreign minister Tzipi Livni under the principles of "universal jurisdiction":
Universal jurisdiction originated as a justification for states taking action against conduct like piracy and slave trading that often took place outside the reach of any state. After World War II, the victors extended the principle to include war crimes so that they could conduct the Nuremberg Prosecutions and their counterparts in Japan.


I do not mean to excuse the horrific crimes committed by Germans and Japanese during WW II. But even so one can argue that the expansion of universal jurisdiction to war crimes was an unprecedented and unprincipled act of fiat by the Allies to provide a legal fig leaf for their "victors' justice." Since then, moreover, human rights lawyers have taken the concept and run with it to include such things as torture, genocide, and the like.


How is the UK supposed to play an important diplomatic role if rogue lawyers and judges can derail the process by invoking universal jurisdiction? Perhaps it is no wonder that a virtual nonentity in the diplomatic game like Spain harbors Judge Garzón or lawyers in a bit player like Belgium went after Donald Rumsfeld. But for their invocations of universal jurisdiction, who would care what they said or did? In contrast, the UK is a major player and, moreover, wants to "punch above its weight." You can't do that if foreign public figures have to worry about being arrested when they set foot anywhere in the UK (or a country with an appropriate extradition treaty with the UK).
While we're on the subject of "universal" jurisdiction, Kenneth Anderson considered the prospects for lawyers as we head out into the larger universe, as envisioned in Robert Heinlein's Have Spacesuit Will Travel. Not to be outdone, Ilya Somin discussed the game theory economics of Han Solo's decision to join the rebellion in Star Wars:
[Economist Daniel] Hamermesh downplays the real game theoretical reason why it’s rational for Han to fight: His contribution is likely to be decisive to the outcome. After all, he’s got “the fastest ship in the galaxy,” and it can make mincemeat of Imperial tie-fighters (as we already saw earlier in the movie). Hamermesh’s payoff matrix implicitly represents this by positing that if Han fights, he increases his own payoff from 5 to 8, and that of the Rebels from 7 to 10. In truth, however, Han’s contribution might well make the difference between victory and total defeat (as in fact happens). Moreover, the speed of the Millenium Falcon minimizes the risk that Han takes should things go badly. He has a good chance of running away unscathed. I’ll ignore the fact that he also times his arrival at the battle perfectly, such that it’s clear exactly what he has to do to ensure victory at little risk to himself; if it looked like the Rebels were going to lose, he could have just as easily have destroyed Luke’s fighter instead of Vader’s and then claimed he was there to help the Empire all along.

Now the serious part: Consider how different is the situation of most people suffering under oppressive governments from Han Solo’s. If any one of them tries to rebel, it is highly unlikely that their actions will have a decisive impact on the regime’s fate. On the other hand, they, unlike Han, don’t have the Millenium Falcon to escape in. If they defy the government, they will likely be caught and punished. Of course if all or most of them resist at once, they might well overthrow the state. But it is hard to coordinate a mass simultaneous uprising in a repressive regime, and the strong incentive for any individual is to free ride on the efforts of others. Ironically, the more repressive the regime, the more severe the collective action problem involved. That’s why a mass movement to overthrow the totalitarian North Korean government is far less likely than one that overthrows a run of the mill dictatorship that oppresses the people much less.

This point also explains why most repressive regimes that are overthrown fall either because they were taken down by a small clique of insiders (who can make individually decisive contributions because of their privileged positions of power) or by a mass uprising that occurs because the regime itself begins to liberalize and the people begin to think that dissent won’t be punished anywhere near as ruthlessly as before (this is what happened in Eastern Europe and the USSR in 1989–91...). Sometimes, as in Iran this year, the people imagine the regime is less committed to repression than it actually is, and their resulting protests are brutally suppressed.


Han Solo, unlike most potential dissidents in repressive societies, stood to gain purely individual benefits from fighting that he could not get if the regime were defeated without his help. For example, he greatly increased his chances of getting to marry Princess Leia and becoming a high-ranking officer in the Rebel Alliance. In Return of the Jedi, we learn that he has been given the rank of general, which is extremely rapid advancement indeed from his previous position as an impecunious smuggler. Marrying a princess and becoming a general are not likely outcomes for your average potential North Korean or Iranian dissident.

Happy Holidays to you all, including even the social media consultants.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., NFL.com, The Selvedge Yard (Bob Willoughby Photo), and Paris Odds n Ends Thrift Store.

1 comment:

Charon QC said...

Colin... I'd really like to lower the price of my treatise on How to Use twitter - but I must not devalue the 'concept' of writing guides on how to use Twitter for future generations.

What I will do is... throw in FREE a copy of my other book - written after lunch on Christmas Day 'How to use Google to see how many times you are mentioned' ($99.99 )

I'm all heart at this time of year - Offer open for 48 hours.