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

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

From the office of Rep. Jeff Flake (R-Ariz.):

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

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

[Previous TGIS]

A Round Tuit (7)

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.

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

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

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

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

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

It has to stop somewhere.

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

Attorney David Cwik represented the Plaintiff in a medical malpractice case. He was not pleased when defense attorney Marilee Clausing filed a Motion to Dismiss because she claimed Mr. Cwik failed to disclose his expert witnesses. How did Mr. Cwik repond? He wrote her a letter with the following sentence:

Should you succeed on your motion, we would merely dismiss the case, refile it shortly thereafter, and in the interim send somebody over to perform a clitorectomy on you.

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

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

....

Effective lawyers gain credibility with the court by providing useful information in a manner that is helpful and respectful of the court's time. That means carefully organized briefs without

• personal attacks,
• needless (ad)verbiage,
• string cites for uncontroversial propositions, and
• overly clever word choices and rhetorical flourishes.

It's the tight, well-structured brief that gives me pause these days. And when I can tell that my opponent was writing with a smile on his or her face, I really start to get worried.

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

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

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

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

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

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

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

....

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

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

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

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

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

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

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

Professor Turley writes in USA Today...

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

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

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

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

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

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

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

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

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

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

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

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

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

....

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

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

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

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

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

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

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



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

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

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

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

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

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

....

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

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

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

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

Why? Because drunk driving is different.

....

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

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

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

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

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

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

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

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

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

....

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

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

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

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

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

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

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

....

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

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

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

....

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

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

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

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

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

....

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

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

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

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

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

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

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

....

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

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

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

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

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

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

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

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

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

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

....

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

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

[Previous TGIS]

A Round Tuit (6)

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.

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

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

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

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

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

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

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

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

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

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

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

....

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

....

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

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

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

....

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

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

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

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

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

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

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

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

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

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

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

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

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

....

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

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

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

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

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

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

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

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

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

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

....

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

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

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

Two things went through my mind after reading her post.

1. As a father of two small children, I empathized with her about the alleged circumstances.

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

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

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

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

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

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



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

[I]t was a minor issue; certainly not worth fabricating evidence over. I looked at this issue more closely in a blog post in February, shortly after the filing of the complaint, in which I compared overlays of the poster on the two photos and concluded that Fairey’s claim was "highly implausible":

Perhaps Fairey has just had a memory lapse. But if not, and he's engaged in a little retroactive wishful thinking, it’s not for very much benefit; I think the strongest arguments in his favor have nothing to do with the framing of the original photo. Furthermore, to the extent a judge or jury comes to the same conclusion, it just plain looks bad to have a misstatement like this in the complaint.

That's true—and it looks even worse if you destroy evidence to cover it up. And it looks even worse than that if you manufacture evidence. All for very little benefit. Fairey's behavior here reminds me of insider trading cases where some billionaire risks prison in order to avoid a loss of $20,000.

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

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

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

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

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

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

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

....

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

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

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

....

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

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

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

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

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

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

....

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

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

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

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

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

....

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

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

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

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

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

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

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

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

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

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

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

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

....

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

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

[Previous TGIS]

A Round Tuit (5)

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.

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

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

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

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

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

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

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

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

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

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

....

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

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

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

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

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

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

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

Gardner summarized his views thusly:

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

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

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

....

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

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

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

BBC News reported that:

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

....

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tom Smith seems to lean toward Martel's explanation:

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

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

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

By way of a few examples, [Obama and his administration] have:

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

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

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



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

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

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

But what kind of vetting actually takes place? Super Lawyers claims on their website that:

Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

Of course, they never asked me to evaluate any of my peers. And I don't know anyone else that was asked to do an evaluation. They have a full page of words on their website to describe their process, but it doesn't seem very revealing to me. They have a "research department" that assigns "point values" to different criteria.

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

....

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

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

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

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

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