13 October 2010

A Round Tuit (47)

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.

Phelps and Friends

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Even hateful religions and speech deserve the protections of the First Amendment. From time to time, our Supreme Court is obliged to reiterate this; it seems that if there is indeed a God, He seems to delight in conceiving ever-more-hateful figures to test that noble proposition we know as the First Amendment.

Last year's tests were those so-called "crush" videos depicting the brutal deaths of animals (U.S. v. Stevens). The latest tests came in the forms of Fred Phelps and his followers, members of a crackpot religious group based in Kansas. The list of groups and individuals on the group's hate list is as eclectic as it is extensive; at various times, Phelps has targeted President Reagan, Princess Diana, Chief Justice Rehnquist, and Mister Rogers. In general, however, his ire is directed at homosexuals and at the United States (though he also seems to harbor an intense dislike for Sweden). Phelps' decision to picket the funeral of a young Marine killed in Iraq in 2006 resulted in a defamation, invasion of privacy, and intentional infliction of emotional distress tort verdict in favor of the Marine's father in the amount of $10.9 Million; that award was subsequently reversed on appeal and the matter has now come before the Supreme Court.

Mike Sacks has been a diligent observer of not just the Supreme Court's arguments and decisions, but of the circus atmosphere which prevails outside the Court on argument days; he's not seen a circus like this one:
Snyder v. Phelps attracted more press and general public than I have seen in my time covering the Court. Granted, no abortion cases or Presidential elections have come up since I started F1@1F, but even last term’s campaign finance and gun rights blockbusters couldn’t compete with today’s scene.

The upshot, however, is that those cases yielded landmark decisions, while Snyder will bring nothing of the sort. If there’s any lesson at all to be gained from this morning’s oral argument, it’s a reassertion of the truism that bad facts–or, in this case, exceedingly unique facts–make bad law.


[F]or all the doubt the justices expressed towards the [Westboro Baptist Church's] claims of constitutional protection, Snyder’s argument simply could not carry the day. Challenged by Justice Kagan to articulate a standard for how to determine which protests “glomming to a private funeral” should or should not fall outside of the First Amendment, Summers could articulate no governing principle. Ultimately, it seemed, Snyder sought not a general rule of law, but rather a Constitutional carve-out for his own grief. Such personalized positions are not the stuff of Supreme Court precedent.

In the end, while Summers faltered, Margie Phelps refused to be pinned down. Her arguments that Snyder himself made his grief of public concern in a statement to the press following Matthew’s death–thereby making him fair game for a protest on the nation’s tolerance of homosexuality, which was staged 1000 feet away and out of his ear- and eyeshot so to comply with local ordinances–were too solid for anyone committed to robust free speech principles to deny.

Should the Court, as appears likely, hold its nose and side with the Phelps’s, then this case will stand for a principle older than the First Amendment and our Constitution itself: it’s always good to have a lawyer–or sixteen lawyers–in the family.
Lyle Denniston reported the case and suggested the possibility that emotion will play into the Court's decision:
When the Supreme Court meets in private Friday to discuss Snyder v. Phelps, a profound question will hang over the discussion: Should we — and can we — set aside our emotional reaction? If the answer, implicit or otherwise, is no, the Justices may then proceed to craft a way to write into the First Amendment a “funeral exception” to the right to speak out in public in outrageous and hurtful ways. It was apparent, throughout an hour of oral argument Wednesday, that emotion was more dominant than law, at least among most of the Justices. Perhaps typically, Justice Ruth Bader Ginsburg, who did seem to want to talk about legal principles, could not keep from pronouncing that “this is a case about exploiting a private family’s grief. Why should the First Amendment tolerate that?”


By the end of the argument, it seemed that, if the Justices could settle on a legal principle to govern funeral protests of the kind that greeted the service for Marine Lane Corporal Matthew Snyder, it might well be the compromise position suggested at one point by Justice Stephen G. Breyer. The First Amendment would allow a lawsuit for outrageously causing harm to someone’s emotional life — at least at a funeral — but limit it so that it would not forbid all forms of protests at such an event. As Breyer put it: “What I’m trying to accomplish, to allow this tort to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.”

That approach also seemed to hold some appeal for Justice Anthony M. Kennedy, who expressed his concern that the Westboro Baptists were seeking a constitutional right to follow around any individual who had a particular trait that the pursuers disliked, and making that person a target of outrageous comments. In addition, Kennedy openly invited counsel to “help us in finding some line” that would make such pursuits unprotected as free speech.

Sean E. Summers of York, Pa., the lawyer for the dead Marine’s father, wanted a very simple constitutional line — tailored to follow exactly the facts as he portrayed them. The services for Matthew Snyder were a private event, it was disrupted by private individuals, who had made the private Snyder family its special target for its abuse, so, to Summers, the First Amendment has no role to play. To Summers, there was no public policy issue involved, just a message of personal intolerance.

The Westboro Baptists’ lawyer — family member Margie J. Phelps, of Topeka, Kan. — wanted an equally simple constitutional line — fitting her version of the facts. Albert Snyder had intentionally turned his son’s funeral into a public media event and himself into a public advocate, the protesters showed up to debate him on the sins of America and the consequences, and so, to Phelps, the First Amendment provided the usual shield for speech on “matters of public concern.”
Emotion was certainly apparent in Tom Crane's personal take on the Phelps case and the difficulties the Court will likely face in reaching its decision:
I served in Iraq for a year and devoted 28 years of my life (mostly part-time as a Reservist) to the military. So, seeing signs like "Thank God for Dead Soldiers" at a funeral for a dead soldier angers me beyond belief. See news report. I cannot understand a church that openly, proudly protests at many, many funerals for service members killed in the two wars. I practice civil rights law, so have some understanding of civil rights. The First Amendment is a critical part of our laws and heritage.

The First Amendment has rarely been limited. The most well known limitation came in a 1919 case, Schenk v. United States, in which Justice Oliver Wendell Holmes said that falsely yelling fire in a crowded tehater was not protected speech. See court opinion. Justice Holmes offered this as an example of speech that would not protected by the 1st Amendment.

This Westboro Baptist church case will be very difficult for the Supreme Court to decide.


I am sure the tiny Westboro Baptist church is concerned for their own safety. They may be the most unpopular church in America. In this case, I have to speak more as a former soldier. If they picketed the funeral of one of my soldiers, I would not wait for any lawsuit to take appropriate action.
In rounding-up the many, many articles and posts covering the Phelps arguments, James Bickford noted, "Few journalists cared to predict the outcome of the case, and several commented on the Court’s struggle to resolve the parties’ strong claims." Thankfully, a few legal bloggers are made of sterner stuff than those poltroons who call themselves "journalists". Calvin Massey offered a "rash prediction" (with just a tiny bit of reservation):
By a vote of 6-3 the Supreme Court will reverse the Fourth Circuit and remand for a new trial in accordance with the Court's opinion, authored by Justice Kennedy. The opinion will say that free speech principles do not limit the imposition of tort liability for intentional infliction of emotional distress where the victim is a private figure, the speech that is the basis for the tort liability invades the victim's reasonable expectation of tranquility at a moment of vulnerability, and the speech (taken as a whole and considered from the vantage point of a reasonably objective observer) is primarily directed at the victim in order to inflict emotional injury, even if it otherwise raises issues of public concern. Kennedy will be joined in the entirety of the opinion by Breyer, and Roberts, Scalia, Thomas, and Alito will either join in its entirety or concur in part and concur in the judgment. Ginsburg will dissent, joined by Sotomayor and Kagan.

If I am wrong, you may forget that you ever read this.
Jason Mazzone predicts a decision the other way, based on key factual weaknesses in the Petitioner's case:
Given all of this—that there was no interference with the funeral, that the service and burial proceeded as planned, that Albert Snyder was not impacted at the time of the funeral by the activities of the members of Phelps’s church, and that he was only later affected because he watched a news report and visited the church website—it seems to me inevitable that the Court will affirm the Fourth Circuit’s decision. The only real question here is whether in affirming the Court will suggest that although the First Amendment bars these kinds of tort claims it does allow for some governmental regulation of funeral pickets given the unique privacy concerns that funerals raise.
Deana Pollard Sacks discussed the delicate balancing act between protected speech and unprotected tort which Snyder v. Phelps represents for the Court:
The Snyder v. Phelps facts relating to the nature of the speech factor are mixed. The reason is that speech of genuine public concern was mixed with speech that targeted a private individual regarding facts of his private life in an apparent attempt to maximize Mr. Snyder’s emotional injury and unrest. The nature of the speech is thus split – it is partly speech of public concern and partly private information that does not concern the public, such as marital and child-rearing issues. To the extent that certain speech involved in the case was not of public concern, the Court should carefully identify that speech and explain why it was not of public concern, to avoid chilling speech of public concern. As argued below, this is probably unnecessary, as the other balancing factors mitigate toward a mid-level evidentiary standard for Mr. Snyder’s claims, even if the speech involved was entirely speech of public concern, as in Gertz v. Welch, in which the Court adopted a mid-level evidentiary standard.

The second balancing factor seems clearly to favor Mr. Snyder. Unlike Mr. Sullivan or Mr. Falwell, Mr. Snyder was not a public official or media celebrity who intentionally gained general fame and notoriety before the events that gave rise to his tort claims. Even Mr. Gertz was deemed a private figure, despite having written books, being active in the community, and being a well-respected and recognized local attorney. While Mr. Snyder may have had access to the media after the events giving rise to his claims, this cannot establish public figure status, especially since Mr. Snyder not only did not assume the risk of personal attacks, but appears to have been dragged into the controversy against his will and best interests. The state has a greater interest in protecting private individuals such as Mr. Snyder than public figures, because of the risks public figures assume prior to the defendant’s actions that give rise to their tort claims.

The final balancing factor – the nature of the state’s interest in providing a tort remedy – is also mixed. On the one hand, cases such as Zacchini v. Scripps-Howard Broadcasting indicate that actual damages, as distinguished from reputation or emotional harm, means lost profits or other out-of-pocket damages. Although Mr. Snyder’s claims rest on emotional distress primarily, he also claims physical injury, which is the general distinction in tort law between actionable and non-actionable negligent infliction of emotional distress. In tort law, physical injury is considered distinct from pure mental distress for purposes of negligence-based liability similar to the way that the Court has distinguished reputation or emotional injury from actual damages in speech-tort cases. The state has a greater interest in protecting citizens’ physical health than their “feelings or reputation” just as the state has a greater interest in protecting against proprietary harm than emotional harm.
At the Popehat blog, Patrick attacked Phelps' position from a different angle, a religious one. He wrote that although Phelps fancies his teachings to be inspired by God and Jesus Christ, it was another Biblical figure — Pontius Pilate — whom he resembled more this week in that both "betrayed Jesus Christ in the name of the law":
Today Fred Phelps was handed an opportunity granted to few prophets and saints: to stand before Caesar himself, with all the world watching, and proclaim the good news and message of Jesus Christ. Phelps personally could have shouted at the Anti-Christ and proclaimed God’s hatred of fags, Jews, and America for thirty minutes.

Instead, Phelps commanded his lawyer-daughter to seek mercy from the very court of Babylon. He professed his faith in the laws, rather than God. Only outside the court, away from people who could punish him for his religion, would he speak his belief that Jesus Christ is a God of hatred. Fred Phelps is a coward, who denied his faith when it counted most.
I suspect that Phelps would dismiss Patrick's remarks as a predictable attack on him from a Papist website.

What hateful speech will next test our First Amendment resolve? Any suggestion at this point would be no more than a guess, but as other events reminded us this week, when the time comes there will surely be some grotesque and despicable person there to become the next test case. A case in point: Jennifer Petkov of Trenton, Michigan, who mounted a campaign of harassment against a woman, Laura Edwards, who recently died of Huntington's Disease, and now continues it against her seven-years-old daughter, Kathleen, also dying of that degenerative neurological condition. Petkov and her husband have photoshopped pictures of Laura Edwards in the arms of the Grim Reaper and her daughter's face over crossed bones; the Petkovs have also parked a truck decorated with coffins and labeled "Death Machine" in front of the girl's home. Interviewed by local reporters, Jennifer Petkov explained her harassment as arising from a dispute with the dying girl's grandmother. Jonathan Turley discussed the possible legal implications of the Petkovs' abhorrent actions:
One of most upsetting statements attributed to the Petkovs was their telling Kathleen directly “I can’t wait until you die.” Jennifer Petkov is quoted as admitting that she continued the campaign for “personal satisfaction” and “because it burns Rebecca Rose’s ass raw.” Rebecca Rose is the mother of Laura and grandmother of Kathleen.

Kathleen’s father reportedly begged the Petkovs to stop, asking them ” ‘Just leave us alone; that’s all we want. Don’t make any more comments about our daughter.”

Scott Petkov and his wife have now apologized. Scott Petkov described how his wife’s “brutal honesty” has caused his family to “not get along with a lot of people.” For her part, she now admits “What I did was ignorant and wrong.”


They have a constitutional right to be horrible people. However, their first amendment rights are limited in cases of harassment, stalking, and other crimes. The most obvious criminal charge would be any violation of the restraining order. Such orders generally do not include limitations on speech such as Facebook sites and public statements. The truck could be an issue if parked within the protected zone. I do not believe Michigan has a cyber-bullying statute. What I am unclear about is why the police did not pursue this as a child abuse case, if it is true that the Petkovs confronted the little girl. If that account is false, there remains the campaign directly against the little girl as a possible abuse or stalking case.

The most obvious course for the Rose family would be a civil lawsuit for intentional infliction of emotional distress. There is probably not an action for privacy violations here, such as intrusion upon seclusion or public disclosure of embarrassing private acts. Likewise, words alone are generally insufficient for assault. However, what is fascinating about the case is Jennifer Petkov’s admission that she wanted to harm the Rose family in taking these actions.
Mike Cernovich reminded us that while the Petkovs may speak (more-or-less) freely, so can we; he posted their home address for our correspondence convenience. All in all, this week offered more than its share of reminders that the free speech rights we enjoy as Americans do not have an exception for ignorant and cruel (but "brutally honest") white trash. As Scott Greenfield put it, we'll continue "testing speech, one nutjob at a time":
[W]e rationally know that the Fred Phelps, the Jennifer Petkovs of the world are the testing grounds for speech, painful as it is. Worse still, we rationally know that there are plenty more where they come from.

We can condemn these people for what they say, but it rings awfully hollow.


It appears that the Michigan harassment statute addresses personal confrontation rather than intentional harm caused from a distance. The statute's definition of "stalking" may apply.
(d) “Stalking” means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
Whether Petkovs conduct meets the proscription is another matter. Whether the prohibition can constitutionally apply to this speech is yet another question.

While it's hard to imagine that Jennifer Petkov (or anyone) can hold such malicious and sick beliefs, we know there to be such people around and it's our rights tested via their diseased mouths. Even they get to speak, as much as we might like to personally explain to them why we would prefer they not exist.

Before closing, it should be noted that Petkov has since had an epiphany and now realizes that she was wrong. She apologizes. No doubt she's very sincere and that makes it all go away.


Unfortunately a couple of weeks too late to trounce the competition in their "Legal Rebels" contest, the ABA Journal took notice of a firm full of legal innovators in South Carolina:
High-maintenance divorce clients may not want to hire the Pincus Family Law firm in Columbia, S.C.

The law firm takes work-life balance seriously, and it expects its clients to behave. The firm sets out the boundaries on its website under the heading “Client Expectations (Realistic or Unrealistic).”
Those expectations are worth reproducing at some length:
We do not work on the weekends and do not provide emergency numbers for the weekends. There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.

Do not think we are perfect. We make mistakes. We are competent attorneys and paralegals, but we make mistakes. We will correct a mistake if we find it or if you point it out. Please do not yell at us, accuse us of not doing our job, or insult us over a mistake.

We will return phone calls in the order they are received and based on the priority of the situation. If you leave a message, your message will be passed on to the attorney. Calling three or four or multiple times in a day will not get your call answered any faster. Email is the quickest way to get a response from an attorney.

Attorneys work by appointments only. Please do not show up at our offices to speak with an attorney without an appointment.
On balance, Jim Calloway thought theeir effort to set client expectations was a worthwhile one:
I think one of the most important practices for lawyers is discussing client expectations and making sure that new clients have reasonable expectations. A client with unrealistic expectations is probably not going to end up as a happy client, no matter how good the results. Lawyers want to achieve good results and also produce satisfied clients who will return for more legal work in the future and perhaps refer other potential clients to the lawyer.


It seems like they have made a strategic decision to say "If you are going to a high maintenance client, you're probably not going to be happy with us and we're probably not going to be happy with you." Read it and judge for yourself. But one thing is certain. They have achieved the distinction of not having the same content of every other law firm's web site.
Dan Pinnington was more firmly in the fans' camp:
Wow! Have you ever seen anything like this on a law firm website before? You should read the entire expectations page. There is a fair bit of general advice about family law and litigating domestic disputes. This page clearly sets out the rules of engagement for the client if they are to retain the firm to act for them.

In his post Jim says, and I wholeheartedly agree with him, that one of the most critical things lawyers need to do at the start of a matter is discussing client expectations and making sure that new clients have reasonable expectations. This is one of the best things you can do to lessen your exposure to a malpractice claim (there is probably nothing better for lessening your risk of a claim). A client with unrealistic expectations is probably not going to end up as a happy client, no matter how good the results. Lawyers want to achieve good results and also produce satisfied clients who will return for more legal work in the future and perhaps refer other potential clients to the lawyer.
Though he thought the effort interesting, David Lat wasn't so sure about the resulting policy statement:
Managing expectations is a very important skill — when it comes to personal relationships, movie enjoyment, and, of course, dealing with your co-workers and clients.

You need to know how to set boundaries. After you’ve pulled two all-nighters in a row, for example, it’s okay to tell the partner you work for that you just can’t do a third. If you give an inch, your colleague or client will take the proverbial mile.


One gets the sense that the person who composed this part of the website did so at the end of their Worst Week Ever in terms of client relations. The frustration practically jumps off the page[.]


...I personally find myself quite turned off — and I suspect others feel the same way. First, some folks... might say that lawyers should work weekends. Second, even if a lawyer doesn’t work weekends, should she really announce that fact so aggressively to her clients?
In an informal poll conducted at Above the Law, sentiment was generally more forgiving; only 12% considered the "we don't work weekends" manifesto to be inappropriate. Scott Greenfield labeled the South Carolina firm's statement "managing low expectations":
Blunt. Honest. Maybe they thought it best to remove the part about "just send money and leave us alone." The lawyers may not be long on client service, but at least they aren't hiding it from their potential clients.


The problem with this discussion, aside from the cavalier approach, is that clients generally don't come to a lawyer asking themselves, how can I interact with this lawyer in a way that makes the lawyer's life most pleasant. This has become a recurrent theme lately, with lawyers thinking that clients exist primarily to pay them money and assure them work/life balance. That the client has a legal problem doesn't seem to enter into the equation.

Client management is both art and science. There are some hard realities that impact both lawyer and client, such as the fact that an hour on the phone holding one client's hand is an hour lost from working on the case of another client. Serving clients isn't a matter of catering to their whims and making them think you're the kindest person on earth, but make them knowledgeable about what the legal system in general, and you as lawyer, can do to achieve their goals, and then providing at least that if not more.


The answer isn't to say you don't work weekends, but to manage clients' understanding of what constitutes an emergency, worthy of disrupting dinner at a nice restaurant with the family. There are real emergencies that happen at inconvenient times. Nobody promised that it was convenient to be a lawyer. Suck it up. Who else should your client turn to when an emergency happens?

But the "high maintenance" client is usually a client who has been oversold. The old adage, undersell and overdeliver, comes into play. When your clients know that you will contact them immediately upon any news in their case, they won't call you to ask if there's anything new. When your clients know that you return telephone calls as soon as possible, they won't call 10 times to try to reach you or scream at your receptionist when you're in court and unavailable. When you don't make outrageous promises that you can "fix" anything, they won't become equally outraged when it doesn't happen.
Carolyn Elefant agreed for the most part that the statement focused overmuch on what the lawyers wanted from their clients, with too little consideration for the realities of the professional relationship between them:
The first section of the Client Expectations section isn’t about clients, it’s all about the lawyers, all about we. The firm proclaims: We don’t work weekends, we make mistakes but don’t yell at us or insult us for making them, we take calls in the order they come according to the priority we assign, we are the only reliable source of information on your case – (but you’ll need to pay to get an update).

If I’m a client, why should I care that my lawyers don’t work weekends? Frankly, clients don’t want to see the sausage being made – that is, they don’t want to know about when or how the work gets done, so long as it does. So if there’s a major trial starting Monday morning, a client doesn’t want a lawyer to stop the clock because she’s not working that day, nor does the client want to hear how the lawyer slaved all weekend. The client wants the lawyer to show up prepared, end of story.

Moreover, avoiding weekend work – and then bragging about it – is potentially fatal to a family law practice. There, many custody disputes or crises can arise over the weekend such as one parent picking up the kids and failing to return them at the agreed upon time, or an abusive ex-husband showing up drunk at his ex-wife’s home on a Saturday night in violation of a protective order. Sometimes, a quick call to one’s lawyer can dissipate a situation that might otherwise explode or give a client a little peace of mind.


As the conversation over this firm’s website bear out, there are two types of client expectations. The first category relates to matters beyond our control as lawyers: the speed of the docket, the sufficiency of the opposing party’s filing, and the likelihood of success. Managing these expectations is critical or else a client will impose unrealistic demands or feel disappointed at the end of the case. For example, if a lawyer assures a client that the court will rule on a motion in a month and six months pass without decision, the client’s going to blame the lawyer for the delay.

But the second set of expectations relate to what a client can reasonably expect from a lawyer: promptly returned phone calls, respectful treatment, dedication, diligence, honesty and integrity and overall excellence. In contrast to external matters like court schedules, how we serve our clients is a matter over which we have absolute control and as such, is not the type of expectation that ought to be managed or diminished. Rather, as lawyers, we must — and indeed, are obligated to — manage to live up to our clients’ expectations of us as their lawyers, every day of our practice. And if that means working weekends, then we need to manage to do that too.
Susan Cartier Liebel tried to recast the Expectations statement into something less off-putting, a policy which would make the firm "more attractive to the potential client by showing why the client achieves a tremendous value for ‘playing by the rules.’" It was a nice effort and I thought her statement was marginally less offensive than the original, but the problem isn't something she can solve with a rewrite.

In essence, the problem is that the Client Expectations statement is, as written, an all-too-accurate picture of what those clients can probably expect. It is all about the attorneys; clients are a necessary burden and just part of a cost-benefit evaluation. Let the costs get too high and these outweigh the benefits. One easy way to maximize benefits, relatively speaking, is to lower the costs by, as Greenfield put it, managing low expectations. Frankly, I think it's unprofessional.

I mean this not in the "unethical" or "sanctionable" senses of that word, but rather in the sense that it recasts the relationship between attorney and client from a professional one to a simple matter of trade. This firm is peddling legal advice from their storefront and, thus, their Expectations statement is entirely appropriate. I would not expect to call my mechanic at home late on a Sunday night if my car wouldn't start; no matter how many times I eat at a particular restaurant, I wouldn't feel especially aggrieved if I left a voicemail there and didn't get a return call in a timely manner; when I drop off my dry cleaning, I don't expect daily status updates from the counter clerk. All of these are trade relationships, not professional ones. I don't expect non-professionals to look after my best interests; I just want them to do a fair job for a fair price. This is the trade relationship that the South Carolina firm's Client Expectations describe — fair legal services at fair prices. It's unprofessional.

It's one thing to correct mistaken client expectations about one's legal services or the legal system in general; it's another to reset reasonable expectations low enough that even the most modest efforts cannot fail to exceed them. Clients have a right to expect more from their attorneys. This is what distinguishes our profession. Ultimately, rather than rewriting statements like the "Client Expectations" one to sound less blunt or wrapping their sentiments in the language of professionalism to better close deals with prospective clients, it's really better for all concerned to be accurate. If you're just peddling legal services, it's best to make that clear up front so that you can enjoy your weekends with a clear conscience and your clients can better understand that they've traded peace-of-mind for low, low prices.

Odds n Ends Shop

Carl Gardner and Charon QC did an excellent podcast this week on an interesting topic — a proposal by Foreign Secretary William Hague to intended to "reaffirm once and for all the sovereignty of our ancient parliament" vis-à-vis EU rulemaking. The interview grew from an opinion piece which Gardner published at the Guardian's law site; there he wrote:
Parliamentary sovereignty – the right of parliament to make or unmake any law whatever, as the great Victorian constitutional lawyer AV Dicey put it, which obviously includes the right to unmake EU law in this country and take us out of Europe – is already the most fundamental unwritten rule of our constitution. Hague admitted as much yesterday, rightly telling his audience that EU law only applies here because parliament says so. He even conceded his clause would not change the legal relationship between the EU and the UK.

So why bother? There is no need to enshrine parliamentary sovereignty in legislation. Indeed, doing so is in the truest sense redundant: a national sovereignty clause can only have legal authority because of the existing common law rule that parliament is sovereign. What's more, Hague's clause will need to be carefully drafted to make sure it cannot possibly be read as in any way affecting or limiting the common law sovereignty on which it depends – or it could have unintended but far-reaching constitutional ramifications. And what happens if parliament one day repeals it?

This legislation would be a pointless exercise at best, monkeying around with the essentials of the constitution for no better reason than political symbolism, yet also involving subtle legal perils. It ought to be avoided entirely. That it has been put forward by a Conservative is astonishing.
Gardner discussed the topic further at his own blog:
I’m amazed that the Conservatives of all people should have got themselves so muddled about the legal relationship between the UK and the EU, and about what Parliamentary sovereignty is, that their foreign secretary is putting forward legislation interfering with the absolute essence of our legal system, and arguably representing the biggest single step we’ve ever made towards a written constitution – something that’d be a historic mistake, and hardly a conservative move.
Questions concerning the sovereignty of national law amidst international rulemaking were also raised by the release of a near-final version of the Anti-Counterfeiting Trade Agreement (ACTA). Mike Masnick noted that the United States' ACTA negotiators have repeatedly assured us that ACTA would not conflict with American laws; nonetheless, he pointed to an analysis done by the Knowledge Ecology International organization which listed many such conflicts in the released draft. ACTA expert Michael Geist suggested that that draft posed less of a problem for our neighbors to the North and would not preclude a "made-in-Canada approach" to some key copyright issues. In another post, Geist described the latest ACTA draft as a "cave" by the U.S. on a number of the more draconian proposals we'd pushed throughout the secret negotiations:
One of the biggest stories over the three year negotiation of ACTA has been the willingness of the U.S. to cave on the Internet provisions. When it first proposed the chapter, the U.S. was seeking new intermediary liability requirements with three strikes and you're out used as an example of an appropriate policy as well as language that attempted to create a global DMCA. The draft released today is a far cry from that proposal with the intermediary liability provisions largely removed and the DMCA digital lock provisions much closer to the WIPO Internet treaty model. In its place, is a chapter that is best viewed as ACTA Ultra-Lite.
Nate Anderson also noted the (very welcome) set-back for the American negotiators:
Talk about a cave-in. The Anti-Counterfeiting Trade Agreement (ACTA) has been three years in the making, and at one point included language advocating "three strikes" regimes, ordering ISPs to develop anti-piracy plans, promoting tough DRM anticircumvention language, setting up a "takedown" notification system, and "secondary liability" for device makers. Europeans were demanding protection for their geographic marks (Champagne, etc). Other countries wanted patents in the mix.

That's all gone in today's release of the "near-final" ACTA text (PDF). US Trade Representative Ron Kirk, whose office negotiated the US side of the deal, issued a statement this morning about the "tremendous progress in the fight against counterfeiting and piracy," but the real story here is the tremendous climbdown by US negotiators, who have largely failed in their attempts to push the Digital Millenium Copyright Act (DMCA) onto the rest of the world.
Sean Flynn provided a very detailed analysis of the draft:
In general, the new ACTA text shows many signs of incorporating safeguards that have been long advocated by public interest voices. But the agreement contains many notable flaws, which have been flagged in previous drafts, that threaten fundamental rights and liberties, pose barriers to the free trade in legitimate medicines, export rights owner processes and protections without correlative protections for due process and the interests of users and consumers and conflict with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

The scope of the agreement is still incredibly broad. The criminal chapter has been narrowed to willful trademark counterfeiting and commercial scale copyright piracy. This is a welcome narrowing. But the entire agreement should be narrowed to these original intentions of the negotiation. Instead, many of the parties, with the EU in the apparent lead, have successfully included a great deal of language that extends to all conceivable intellectual property rights, including to patents, geographic indicators and to non-commercial copyright infringement (e.g. non-commercial file sharing).
Mike Masnick called the entire ACTA process a "travesty" in which we were all left in the dark and key stakeholders were purposely excluded from discussions:
While much of the worst of the document has been removed, the process by which this happened was hardly reasonable and open. Instead, it involved secrecy, misleading statements, ignoring important stakeholders until copies were leaked and concerned stakeholders shouted loud enough to be heard. As La Quadrature Du Net points out, this whole process was a counterfeit of democracy. Furthermore, this shows why all of the ACTA supporters, who insisted that people were making too big a deal about this, were flat-out wrong. There were some really, really bad things in ACTA initially, that appear to have only been removed due to loud protests from people who, otherwise, weren't supposed to even know what was in ACTA.


All in all, what we have here is a travesty of process. You had a bunch of industry stakeholders, who drove the process from the beginning, putting in extreme language and extreme ideas. Rather than having an open and honest discussion about these issues, and looking for consensus, negotiators chose to obfuscate, obscure and abstain from discussion. In the end, thanks to widespread public pressure and outcry -- including from elected officials around the world, negotiators clearly backed off many of the absolutely worst aspects of ACTA. But, remember, they started at one extreme, basically granting everything the industry stakeholders wanted, and then caved on pieces there, moving slowly back. So, the document still is based on the stakeholder's positions, with the changes being an attempt to appease everyone else. At no point was there an effort to build a document that actually recognized the rather legitimate interests of the public. And this is a shame.
The Foundation for a Free Information Infrastructure provided a detailed analysis of the criminal provisions in the ACTA draft. Though the ACTA's backers continue to emphasize that its criminal enforcement provisions are intended to apply only to "commercial scale" infringers, Masnick noted that the definition of what constitutes "commercial scale" has expanded remarkably during the negotiations:
[The EU Parliament's] definition of commercial scale... has important caveats not found in ACTA:
"infringements on a commercial scale" means any infringement of an intellectual property right committed to obtain a commercial advantage; this excludes acts carried out by private users for personal and not-for-profit purposes
Notice how the ACTA negotiators conveniently left out the exclusion at the end. So for all the talk of how the new ACTA would only focus on "commercial scale" infringement, by subtly changing (mostly via omission) the definition of "commercial scale," ACTA now covers an awful lot that most people would not, in fact, consider to be "commercial scale." We'll leave it as an exercise to the reader whether these omissions were done through incompetence or for other reasons.
Regardless your own conclusions as to our negotiators' motivations and intentions, we can all be somewhat relieved this week that their powers of persuasions are apparently so feeble.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Eric D. Snider, Despair, Inc., and Paris Odds n Ends Thrift Store.

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