This week's joy in the misfortune of others comes courtesy of Reuters (from Wednesday, May 26; link good at time of posting):
Greek telecom engineers cut off the telephone line to the prime minister's house while attempting to disconnect a customer who was behind in payments, the telephone company said on Wednesday.
The Athens phone number of the customer in arrears was the same as that of Prime Minister George Papandreou's home number save for one digit, telecoms company OTE said in a statement.
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OTE is 20 percent owned by the state. OTE's chairman wrote a letter to Papandreou to explain the mistake and engineers went to the prime minister's house immediately after they were informed of the problem.
Last Fall, I wrote a book review praising Tim Kevan's novelization of his BabyBarista blog, BabyBarista and the Art of War. That novel has enjoyed widespread praise and considerable success and has paved the way for a second novel continuing BabyB's (mis)adventures. Through it all, Kevan has kept-up the BabyBarista blog at The Times website; because the landlord there has put a lock on the door, BabyB has now moved to a home of his own at http://www.babybarista.com (the new RSS feed is http://www.babybarista.com/?feed=rss). Kevan explains:
I have today withdrawn the BabyBarista Blog from The Times in reaction to their plans to hide it away behind a paywall along with their other content. Now don’t get me wrong. I have absolutely no problem with the decision to start charging. They can do what they like. But I didn’t start this blog for it to be the exclusive preserve of a limited few subscribers. I wrote it to entertain whosoever wishes to read it. Hence my decision to resign which I made with regret. I remain extremely grateful to The Times for hosting the blog for the last three years and wish them luck with their experiment. I hope very much you like the new site and also the addition of the wonderful cartoons by Hollywood animator Alex Williams who also draws the Queen’s Counsel cartoons for The Times.
I'll certainly follow BabyB wherever he goes as I eagerly await Kevan's second novel; the new digs are pretty spiffy with Williams' illustrations, one of which accompanies this post. Happy housewarming, BabyB!
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.
I've written a few times before about American Needle v. National Football League, wherein manufacturer American Needle alleged that the NFL's exclusive apparel licensing deal with Reebok violated antitrust rules. The antitrust allegations made by American Needle and the NFL's counter-arguments raise interesting, if not monumentally important, legal issues and deserve some consideration. Mostly though, these Round Tuit posts reflect my own whims and I enjoy it when legal issues arise in sports and don't involve an overpaid crybaby getting into trouble in a nightclub.
About the modern NFL, analysts often talk about the parity amongst teams in the league. Constructs like the salary cap and draft structure have been carefully designed by the league to ensure that fan interest across the country is not damaged by the dominance of a few large-market teams over their smaller-market brethren. They've been largely successful at this, as the NFL's staggering television and merchandising revenues attest. In terms of play, the game has never been stronger; while there are a few perennial losers, the talent is distributed across the league such that on any given Sunday (or Monday or Thursday or Saturday or whenever someone will pay to broadcast a game), even an underdog can prevail. Unless it's Seattle.
Against the NFL, American Needle was an underdog. As Ashby Jones reported, however, they not only won but won big:
American Needle clobbered the league, in a unanimous 9-0 decision penned by Justice John Paul Stevens. We had no dissents and no concurrences. This was an unadulterated blowout. This was the 1940 NFL Championship game; the 1986 Super Bowl.
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American Needle, which had individual licensing deals with NFL teams, sued, arguing the NFL’s exclusive deal with Reebok violated antitrust rules. The NFL argued that it is a single entity with 32 teams that compete with each other in football but not in business, where the teams collectively compete with other sports and forms of entertainment. American Needle countered by arguing that the league was actually a collection of 32 independent entities — i.e., all the teams.
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The Supreme Court on Monday essentially ruled that the NFL is composed of 32 separate business entities.
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Therefore, the Court ruled that Section 1 of the Sherman Antitrust Act applies to the NFL, and ruled that any unilateral decision made by the NFL that affect all the teams shall be viewed under the so-called “Rule of Reason” for antitrust purposes. Under the “Rule of Reason,” a lower court has to examine all of the circumstances to determine whether and to what degree the action is anticompetitive.
Lyle Denniston also noted the decision and that the adverse result for the NFL contrasts with the favored treatment allowed to Major League Baseball:
Rejecting the National Football League’s claim that it has across-the-board immunity to antitrust law when its teams join in a commercial activity, the Supreme Court unanimously cleared the way Monday for trial of a lawsuit against the joint marketing of the right to use the teams’ logos and trademarks on consumer goods. The ruling applied only to that specific joint venture, and did not cover any other collective action that the NFL — or any other pro sports league — might carry out. The Court also did not decide whether the NFL did in fact act illegally in this specific marketing effort; that will be decided at a trial, with the legality weighed under a “rule of reason” standard.
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Although major league baseball has been exempt from the antitrust laws since 1922, under a Supreme Court decision that year, the other pro leagues have not shared that immunity, and Monday’s ruling in the NFL case re-opened them to court challenge on at least some of their collective commercial efforts. The Court, however, sought to ease the anxiety that its ruling might create, saying “Football teams that need to cooperate are not trapped by antitrust law.” In an opinion by Justice John Paul Stevens, the Court went on to say that pro teams “share an interest in making the entire league successful and profitable,” and in pursuing that they may need to make “a host of collective decisions” that would be beyond antitrust challenge. The particular activity at issue, though, is “concerted activity” of the kind that is subject to challenge under the Sherman Act’s Section 1, the Court concluded.
In a second post, Denniston explained that the lopsided victory for American Needle is tempered by the limited nature of Justice Stevens' majority opinion:
While the American Needle case always had the potential to produce a significant new statement from the Court on the Sherman Act’s application to commercial “joint ventures” in general, in the end it did not do so. Much of Justice Stevens’ opinion is simply a reiteration of past rulings on such collective activity, and, indeed, did not mark any deviation from the main precedent on the subject....
Despite those limitations, Marc Edelman cited the decision as an important one within the somewhat narrow scope of litigation against professional sports leagues:
Today’s ruling in favor of American Needle is hugely important to any plaintiff seeking to challenge sports leagues; conduct under Section 1 of the Sherman Act because it preserves the opportunity for the court to review league-wide conduct on its merits.
Today’s ruling also is important from a broader antitrust perspective because it confirms that a collection of separate businesses that function as a cartel cannot “avoid antitrust law simply by creating a joint venture to serve as the exclusive seller of their competing products.”
However, whether American Needle will ultimately prevail on the merits remains far from settled.
American Needle v. National Football League isn't a tenth as important as everyone is going to be telling you over the next few days. Not only does it solely affect three or four sports entities, but nothing prevents those sports entities from reorganizing their structures to avoid the antitrust implications of this particular decision. For example, American Needle is suing the NFL because the latter (as it has done since 1963) pooled the 32 separate trademarks, owned by separate teams, into a single licensing deal. The NFL will face annoying litigation in the interim to defend this arrangement under the "Rule of Reason," but nothing prevents it from requiring teams from transferring ownership of team trademarks to the league as a condition of the franchise, and achieving the same economic result....
That said, it's a bad decision, albeit one consistent with earlier bad Supreme Court decisions on the subject of sports. Why not have a bright-line rule permitting sports leagues to act as one entity rather than expensive case-by-case determination? The odd judicially-created antitrust exemption for baseball hasn't protected that sport from the ravages of competition from other forms of entertainment.
So now that American Needle's in the record books, where can I turn next for my sports law fix? Sadly, I won't get to see Bill Belicheat frog-marched from one courtroom to another in the Tri-State Area. As Mark Conrad reported, the Third Circuit has rejected Jets season ticket holders' claims that the Patriots' unpatriotic videotaping of their opponents' defensive calls violated an abstract duty of honesty:
A group of New York Jets' season ticketholders lost their attempt to claim damages for the New England Patriots secret videotaping of the Jet's defensive calls during the 8 games played at Giants' Stadium from 2000-2007. Citing the fact that "honesty" is not a cause of action for a ticketholder who merely has a license to "enter" the stadium attend a game, the U.S. Court of Appeals for the Third Circuit, dismissed the claim, affirming the ruling of a lower court....
The ruling in Mayer v. Belichick is not surprising, but the legal analysis provides some interesting insights. Although the panel, in a unanimous opinion by Judge Robert E. Cowan, ultimately concluded that no damages can be ascertained from the suit, the discussion focuses far more on the nature of a ticket license, rather than damages.
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That raises the question of the lawsuit's viability if the license was more open-ended. Say, it permitted entry to the facility and provided a "a professionally-played match" (of course, a team would never do this, but worth a thought). But what about legislation? What if a state passed a "Sportsticketholder Protection Act" prohibiting "unduly" limited licenses on tickets as unconscionable and mandates that the event must be of "reasonable quality commensurate in the sport." That would make some plaintiffs' lawyers salivate.
Perhaps I'll get to see some litigation over a few stolen baseball signs? Probably not. Paul Kennedy noted the long but remarkably litigation-free history of sign-stealing:
It's an unwritten rule (and there are probably more unwritten rules in baseball than those of the written variety) that a batter better not turn around to see where the catcher is lining up -- unless he wants a fastball way up and in. However, it has been a longstanding tradition in baseball for a runner at second to try to steal the catcher's signs -- but he best be careful in how he tips the batter lest someone catch a hummer by the earhole.
In 1951, Bobby Thomson of the New York Giants hit one of the most famous homers in baseball history -- The Shot Heart 'Round the World and the radio announcer, Russ Hodges, placed himself in baseball lure with his dramatic cry "The Giants win the pennant! The Giants win the pennant!"
But there was more to the story. As it turns out, the Giants, who overcame a 13 game deficit with but ten weeks to go in the season, had a very sophisticated system in place to steal signs during the second half of the season.
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As I've said before, I don't understand the angst of baseball fans when it comes to stealing signs or injecting steroids -- baseball has always been about cheating and not getting caught.
If cheating and not getting caught is an intrinsic part of baseball, why that just makes it even more American! True, baseball has declined somewhat in popularity in recent decades; where it was once our most popular sport, it's now third on the list behind football and litigation. Notwithstanding, Major League Baseball is poised for a comeback, as the involvement of the league in the Texas Rangers' high-profile bankruptcy promises to make the game more personal for millions of Americans ("Hey, folks, we're just like y'all — bankrupt! Yee haw!") and give millions more what they want to see more than anything — Alex Rodriguez screwed out of millions of dollars in deferred compensation. Matthew Futterman gave us the pre-game:
The battle over the Texas Rangers baseball franchise escalated to an all-out war Monday, with the team filing for Chapter 11 bankruptcy protection in a pre-packaged effort to force a sale to Hall of Fame pitcher Nolan Ryan and his partner, Pittsburgh attorney Chuck Greenberg, after a months-long fight over the fate of the franchise.
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According to court filings those liabilities include almost $25 million that the team owes slugger Alex Rodriguez in deferred compensation and almost $13 million it owes pitcher Kevin Millwood. Neither player is with the team anymore.
The deal received the blessing of Major League Baseball CommissionerAllan Bud Selig, even though people involved with the process say two other groups bid more for the franchise.
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During the past two months the dispute became a high-stakes game of chicken between Major League Baseball, which threatened to seize the franchise and use Mr. Selig's powers to act "in the best interests of baseball" to force the sale, and the creditors, who threatened to force the team into an involuntary bankruptcy proceeding.
Behind the bluster, lawyers and bankers representing both sides continued to try to negotiate a settlement. According to a member of the creditor's group, the two sides were about $10 million to $20 million apart at the end of last week but couldn't bridge the gap.
With prospects dimming for a negotiated deal that would hand the team to the Greenberg-Ryan group, lawyers for the baseball team and Major League Baseball decided to bring the pre-packaged bankruptcy to court Monday in an attempt to maintain control of the process and pre-empt any efforts by creditors to force a sale to another bidder.
If this doesn't work out, I'll add some advertising to these Round Tuits to raise a bit of cash for a rival bid for the team. If I'm successful, I'll immediately move the Rangers to Seattle; I love that town and they deserve to have a professional ball club of their own.
Government tends to fill our lives until we refuse to allow it to do so any longer. To justify its own existence and continue its growth, government seeks to do more and more, to be more proactive and more comprehensive, to take care of us until we're unable to care for ourselves, and always to do for us and to us what it believes to be right. This is the character of government. Don't cite those instances where government has exercised restraint or diminished its role despite opportunities to enlarge it; these are the exceptions which prove the rule.
Government is not necessarily evil, nor need it be a "necessary evil". We deserve the government we demand. What has appalled me of late is our collective tendency to demand more rather than less intrusive, controlling government. It's odd, really — in business, every company no matter its size, industry, or the quality of its workforce and leadership has (even if it cannot readily identify) a few core competencies; companies expand beyond those core competencies at their peril. Why do we expect government to be different, able to competently perform every task it takes on? Those who favor very limited government should realize that there are nonetheless certain core competencies where government can and should perform well; those who favor much broader government should realize that expansion into areas beyond government's core competencies generally produces little value at great cost. Unlike businesses, when government expands beyond its core competencies, it does so at our peril.
We've drifted very far from the fundamental concept of freedom so eloquently described by Justice Brandeis in his Olmstead dissent:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.
Have we abdicated our responsibility to do for ourselves, trading our liberty — our right to be let alone, as Brandeis termed it — for the childish freedom of irresponsibility and the expectation that government can and should address every ill? I hope we haven't, but these days I see as many threats from those who act for us, often with the best intentions, as I see from those who would do us harm with the worst intentions. There were a number of outstanding posts this past week which touched on issues of liberty and the right to be let alone.
David Rittgers related his experience at a White House-sponsored conference:
First, they came for the sex offenders. I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress.
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Next, they will come for suspected terrorists.
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I attended a scholars meeting with the Obama administration’s Detention Policy Task Force.... I gave my views on where detention policy should go, as did a conference room full of experts on the laws of armed conflict and criminal justice (who shall remain anonymous, as this meeting was off the record). I was dismayed to hear a law professor from a prestigious university propose a system of preventive detention as the logical solution to countering terrorism. Worse yet, to make this law less provocative, the professor further proposed that preventive detention should be applied in other criminal contexts, so that the department of pre-crime would not be seen as unfairly targeting only enemy combatants overseas. This professor had taught many of the Department of Justice staffers in the room, and I looked around to see heads nodding at the suggestion.
I responded forcefully that such a system is antithetical to American traditions of due process.... One of the reasons that few people turn to political violence in the United States is that the Bill of Rights bars the government from telling the citizenry how to worship, what to think, and what they can say. Generally speaking, you have to actually be a criminal to get charged as one.
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Unfortunately, there are more than a few people in favor of such a system. Jack Goldsmith and Neal Katyal (now the acting Solicitor General) propose a terrorism court. Sens. McCain and Lieberman want to treat all terrorism suspects as enemy combatants. Sens. Lieberman and Brown want to strip the citizenship of terrorism suspects and try them by military commission. Sens. Graham and McCain plan to close Guantanamo by creating a preventive detention court. Take a conservative plan to deal with enemy combatants captured on the other side of the world, strap on some liberal angst over tea parties and militia groups, and you’ve got a bipartisan plan for wholesale degradation of everyone’s liberties.
And when the proposal comes, the first thing they’ll say is that this is how we already deal with sex offenders.
Scott Greenfield writes frequently and compellingly about the erosion of rights generally and in criminal law particularly; he commented on Rittgers' post:
Once we break through the wall once, however, it becomes increasingly easy to do so again. Evil isn't limited to sex offenders. Or terrorists. Or drunk drivers. Or gangbangers. Or drug dealers. Or jaywalkers. People like me, who speak up for people I despise, are dismissed as clueless. We can't appreciate what it means to lose a child. How would we feel if our daughter was brutally raped and murdered?
The answer is simple, that I would want to kill the person who touched my child, rip him limb from limb, induce excruciating pain and stare into his eyes until the life flowed out. I'm no less feeling than anyone else, and all my visceral reactions are intact. But in the quiet moments when I'm not filled with anger and hatred about the evil that exists in the world, I'm capable of reflecting on why visceral reactions don't make for sound public policy.
Visceral reactions have been codified time and again, however, and Radley Balko has diligently catalogued some of the more distressing examples; this week, he described another example in which community fears and unbounded police authority translated into a "perfectly lawful" evisceration of Constitutional rights:
To hear them tell it, the officers who apprehended 39-year-old David Pyles on March 8 thwarted a mass murder. The cops “were able to successfully take a potentially volatile male subject into protective custody for a mental evaluation,” the Medford, Oregon, police department announced in a press release. The subject had been placed on administrative leave from his job not long before, was “very disgruntled,” and had recently purchased several firearms. “Local Law Enforcement agencies were extremely concerned that the subject was planning retaliation against his employers,” the press release said. Fortunately, Pyles “voluntarily” turned himself over to police custody, and his legally purchased firearms “were seized for safekeeping.”
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“They woke me up with a phone call at about 5:50 in the morning,” Pyles says. “I looked out the window and saw the SWAT team pointing their guns at my house. The officer on the phone told me to turn myself in. I told them I would, on three conditions. I would not be handcuffed. I would not be taken off my property. And I would not be forced to get a mental health evaluation. He agreed. The second I stepped outside, they jumped me. Then they handcuffed me, took me off my property, and took me to get a mental health evaluation.”
By noon, Pyles had already been released from the Rogue Valley Medical Center with a clean bill of mental health. Four days later the Medford Police Department returned Pyles’ guns, despite telling him earlier in the week—falsely—that he would need to undergo a second background check before he could get them back. The Medford Police Department then put out a second press release, this time announcing that it had returned the “disgruntled” worker’s guns and “now considers this matter closed.”
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Joseph Bloom, a psychiatrist at Oregon Health and Science University and an expert on civil commitment law, says the police who apprehended and detained Pyles likely were acting within the state’s laws. Bloom says the police are permitted to decide on their own to take someone in for an evaluation, and that there’s no requirement that they first consult with a judge or a mental health professional.
Bloom believes this is a wise policy. “It’s important to remember that this is a civil process,” he says. “There’s no arrest. These people aren’t being taken to jail. It’s not a criminal action.”
SWAT teams, guns, and handcuffs …but not a criminal action? And what if Pyles had refused to “voluntarily” surrender to the police? “Well, yes,” Bloom says. “I guess then it would become a criminal matter.”
If what happened to Pyles is legal in Oregon or elsewhere, we need to take a second look at the civil commitment power. Even setting aside the SWAT overkill in Medford, there’s something discomfiting about granting the government the power to yank someone from his home based only on a series of actions that were perfectly lawful.
Rick Horowitz wrote a tremendous post this week about the destruction of personal rights in the course of our failed "War on Drugs". If you read just one post this week, Horowitz' should be that one:
The Constitution was meant to place limitations on what governments could do. The rights — actually we called them “powers” — of government were limited. The rights — we actually called them rights! — of human beings were not. Except to the extent that it was necessary to give some up in order to give those rights — now called “powers” — to government.
The idea was to give up just enough of our rights to allow a government to do the most basic of tasks: keep us safe from people — like Kings, or maybe dictators, foreign countries, or maybe despots within our own country — who would try to reduce the rest of our rights. The ones we kept.
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Where we previously thought the Constitution limited the rights (remember, we called them “powers”) of the government, our government began to promulgate the theory that the limitation was actually on our rights (remember, we called them “rights”; actually, sometimes we referred to them as “freedoms”).
So it came to be that today people mistakenly believe that the Constitution limits the rights of individuals. And if a right claimed by a person is not “in the Constitution,” then it doesn’t exist.
The pervasiveness of our non-war "Wars" — on Poverty, on Crime, on Drugs, on Terror — has conditioned in us not only a diminished sense of our own rights but also a tendency to eagerly bargain these away for whatever new cure government proposes for whatever ails us that that moment. Sometimes we forget that liberties lost are seldom regained; sometimes we don't appreciate those losses, as each one seems benign in isolation and the larger picture is difficult to see; sometimes we know precisely what we're doing and what consequences may follow and we simply make a bet that the price will be paid by another. As Scott Greenfield wrote recently on this last point:
There is a law or regulation covering essentially every aspect of human existence. Over time, lawmakers with too little to do create the rules that keep us from bumping into one another by telling us to keep to the right. They protect us from ourselves by telling us to wear seat belts and helmets, and eat less salt. They appease grieving parents and outraged communities by crafting laws named after dead children that duplicate, triplicate, existing laws with minute additional requirements. In isolation, some people applaud these laws as serving a good function. Proponents are always well intentioned, but they become part of the vast mass of laws regulating us.
For every regulation, there must be a consequence for its violation.... [A]s a society, we seek the elimination of crime and encourage and support the police in their efforts to enforce our laws. We do not, however, think much about the scope of our laws that render each of us a criminal, to some greater or lesser extent.
If there was a machine that would detect every violation of law, we would all be found guilty of something. Granted, most of us would be prosecuted for petty, stupid offenses, but they are offenses nonetheless. If they are so petty and stupid, and if we wouldn't want to be prosecuted ourselves for them, why do we support their existence, enforcement and prosecution for others? Largely because we don't think it will ever happen to us. We don't mind unfairness to others anywhere near as much as we hate it when it happens to us.
When I was a child, I was taught that if I was one of the good guys who obeyed the law I had nothing to fear from the police; I understand now that there is a difference between "the law" and "the laws" and that the latter are so broken and conflicted that one cannot obey each and every one. More disturbing, however, is the realization that the police do not see us as good guys and bad guys. We are all suspects to them, and law enforcement has become little more than an exercise in their personal authority. Mirriam Seddiq noted that fear of law enforcement is not the same as respect for the law:
My pop brought us to the U.S. in search of the American dream and good beer. Yet, he snickers when people say "this is a free country." He reminds me of the fact that if I am in eastbejesus Idaho at midnight and there is not a soul in sight and a stop sign on the corner, I will stop and look both ways before I go forth on my journey. Why, he asks? Is it because we respect the law? Because we, as opposed to the uncivilized wretches in other countries where no one waits in line for the bus, are first world, first class and have an inherent and innate love of order? No, he says. It's because we are afraid. There could be a cop around that corner, behind the bush. Maybe, now, there is a camera tracking that road. To think its a love for the order the laws bring is just silliness.
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I wonder at what point we will stop and say enough already. Sheesh. I think I can figure some stuff out myself and don't need the powers that be legislating my every single move. I think Mr. Greenfield is correct, though, that unless those folks who say "never me" spend a few hours in a jail cell, things won't get any better.
I don't want to lose my respect for the law, but as for the laws and those charged with their promulgation and enforcement... well, there oughta be a law.
It's no secret that I've been about as fascinated as a Yank can be with Britain's general election and the coalition government it produced. I've followed news and opinion closely and when my interest often outstripped my understanding, I stretched Charon QC's and Carl Gardner's admirable patience with my questions. One of the more remarkable policy objectives announced by the coalition government is their proposal to extend anonymity in rape cases to the accused as well as the alleged victim.
The proposal has been criticized by womens' groups, which have suggested that it "gave the impression that women frequently lie about rape and could put them off coming forward"; as one advocate put it, "If a guy gets off it does not necessarily mean he didn't do it. The underlying, subtle message of this is that women tell lies and we must protect men from that. Women will pick that up and as a result some will not report rape."
Well, let's be grown-ups here; a not-insubstantial number of criminal complaints are fabricated, and rape allegations are no exception. How many false complaints of rape would it take to justify the proposed anonymity policy? If, as the policymakers suggest, the stigma of a rape accusation is such that anonymity for the accused is warranted prior to conviction, how stigmatizing do other crimes need to be before anonymity would be needed there as well? If anonymity for accusers encourages the (true) reporting of crimes which have occurred, should all complainants be protected as rape complainants are?
Gardner suggested that questions like these are beside the point:
It’s true of course that a man’s life can be ruined by an allegation of rape, even if he’s acquitted in the end. Maybe that’s a worse problem than it is for those acquitted on other charges because of the sensational interest there can be in rape cases. But there’s a strong case against the change. I doubt very much that anonymity will much affect women’s likelihood to report rape cases overall, or the conviction rate. What it will do though is reduce the chance of publicity about one rape case triggering reports from women that the man accused attacked them in the past, and identifications by women who have reported a rape, but believe they now recognise their attacker having seen him in connection with another case.
The law of rape is a fraught area. The presumption of innocence must not simply be thrown out of the window in pursuit of convictions at all cost; but nor should wrong-headed extensions of the scope of the presumption be used as a barrier to investigating rape cases. The presumption of innocence does not require anonymity, and I’m not persuaded we should grant it.
In a subsequent post, Gardner makes the case that not only does justice not require anonymity, but anonymity can prevent justice being done:
It’s of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. So said Lord Chief Justice Lord Hewart in 1923, quashing a guilty verdict arrived at by magistrates in private with their legal adviser, who had a conflict of interest.
The principle has two aspects. First, the justice system must be visibly free of bias. But second, and more fundamentally, the workings of justice must be seen in the first place. Only if justice is carried out publicly can we know it’s being done fairly.
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It’s sometimes argued that naming rape defendants means they’re not treated as innocent until proved guilty. That, though, is a misunderstanding of the presumption of innocence. It’s a vital principle, preventing the state from punishing anyone, for instance by imprisonment, unless a court is satisfied of their guilt. But it doesn’t mean, and never has meant, that nothing adverse should happen to you if you’re suspected of a crime.
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I’m content that there be limited restrictions on public justice, in order to protect lives, to ensure trials are fair, to protect children and to protect rape victims. But public justice is too precious to make any more exceptions than are absolutely necessary.
Perhaps the solution to the problem of false rape allegations is not protecting the identities of the accused but more aggressively prosecuting false complainants, trusting that such prosecutions will not deter victims from reporting true crimes.
One of my favorite programs, Lost, ended this week. In its early episodes, it was an engrossing mystery; in its later ones, it was nothing more than escapist television, but I loved it throughout. I can honestly say that I never learned anything from Lost which was pertinent to my legal practice, but others (no pun intended) did find a few legal lessons on Craphole Island. Victoria Pynchon was one; she described the survivors' progress as negotiators from the first episode to the final one:
If the negotiated resolution of disputes is all about values; personal narratives; and, collaborative problem solving, the televised-negotiated-resolution-Bible is Lost, which ended a six-year run last night in a series of spiritual awakenings for each of the major characters.
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As I became more and more involved in the complexities of the Lost narrative, the through line for me was always the Prisoner's Dilemma. The survivors lied about their motives. They betrayed one another. They remained silent when speaking might have saved them. They demonized "the others" only to find that demons inhabited their own hearts as well. When the squabbling amongst them threatened to pull them apart, another threat from "the others" or the wild boars or the deadly black smoke or the hydrogen bomb, drew them back together. And over time, they became kin.
Though the island's economics were a bit primitive, Daniel Schwartz and Alan King and Tony Kessler pointed-out examples relevant in employment and HR matters. Schwartz wrote, "Another theme that the show continually relied upon: If you can't live together, you'll die alone. It's a good lesson in team dynamics; companies that have employees that work well together, thrive." King and Kessler identified no fewer than five lessons Lost taught about hiring, safety, and other workplace issues. All well and good, but I still just really want a spin-off series wherein Detectives Ford and Straum solve crimes with the assistance of "Number One" Hurley and "Number Two" Ben and Desmond pops in once a week to call someone "brother".
Price was an object for several legal bloggers this past week. Jordan Furlong acknowledged the conventional wisdom that the legal profession shouldn't seek to compete on price and then encouraged lawyers in troubled and competitive practice areas to disregard it:
[I]t’s both sensible and logical to tell lawyers not to compete on price. Yet for all that, I’ve come to believe that it’s not good advice anymore. I think we need to learn, as a profession, how to compete on price in ways that sustain our businesses.
It’s fine, in the abstract, for a lawyer to refuse to match or beat a rival’s lower price for a given product or service. The first few times a lawyer loses a client that way, she can content herself that she held the line against the devaluation of her services and that a client who only cares about price will be a difficult client throughout. But what happens when she loses the fifth client, or the tenth, or the fiftieth, because of price? What happens when clients start to consistently say, “I can get these services at a substantially lower price down the street,” or “I like working with you, but I can’t justify the premium that you charge”?
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But you don’t need to compete on price if you can go one better: compete on cost. Reduce the inefficiencies in your practice, streamline your processes, systematize where feasible, outsource if possible, reallocate resources to match the appropriate level of talent to the appropriate sophistication of tasks. This isn’t about freezing salaries or eliminating positions or taking away free coffee or all the other myopic expense-reduction steps many law firms took during the financial crisis. This is about restructuring your business in smart ways that reduce waste, cut down on system leakage, fine-tune your engines and upgrade your capacity.
Jay Shepherd suggested that when price aligns with value, lawyers should hold firm; moreover, even in the present economic climate, when value justifies it, lawyers shouldn't avoid raising their prices:
It's oversimplifying things to say that value pricing is about saving clients money. Instead, and much more importantly, it's about aligning your prices with the value the clients place on your services. Without that alignment, there is enormous waste and client frustration. Plus, the perverse incentives and unintended consequences of hourly billing artificially inflate client costs. So yes, you can raise prices for premium service and still save clients money.
Bottom line: clients will pay for value. If you're constantly discounting your fees, what does that say about the value you provide?
Norm Pattis has practiced criminal defense long enough to know how to set a flat fee, and he explained that such fees such fees should be avoided in criminal matters for their great potential to harm the attorney-client relationship:
A flat fee places a premium on efficiency. If you expect a case to take 40 hours of time to resolve, you know what to charge to cover your time.
But suppose a black hole opens up in the middle of the case? Suddenly you learn that the case is far from typical.
....
Discontent lurks at the periphery of every flat fee case once a black hole opens up, sucking time out of the world as if there were an infinite amount of it to be had.
A far better course is to charge an hourly rate. Negotiate a rate that reflects the complexity of the case, your experience and what the market bears in your area. In that case, a client is forced to consider the benefit of each additional increment of cost.
....
There is no good way to charge for legal services, I am persuaded. Clients come in need. They are afraid and angry. They want a hero, a savior, a warrior. You offer them what you can. Most often it is enough. But sometimes it is not. A client grows disenchanted, angry, they want what you cannot give. It is a risky thing to agree to represent a person in crisis. You cannot tell where people will turn in the dark of night. What to charge for this work is a topic about which I am not at peace.
For me, without Pattis’ vast experience, the jury is still out. Yes, the hourly rate does offer many advantages. It assures that the lawyer is compensated for every hour he or she spends working on the case. And it prevents the client from paying for hours the lawyer has not devoted to the case.
At the same time, based on what I know now, I still prefer the flat fee, at least for the type of cases I currently handle. The flat fee allows the client and me to deal with the money issues upfront and then to put them behind us, without the continuing distraction. The client pays me the fee. I put the funds into a bank account held in trust for the client. And then I start to work on the case. There is no need to track my hours or to justify the time I spend on the case. I never need to worry that I may be wasting the client’s money by pursuing deadends. And there are no uncomfortable discussions about replenishing the trust account when funds get low.
....
Norm Pattis concludes, and I agree, that there are no clear answers with respect to charging for legal services. Even after many years, Pattis says, he himself is still not comfortable with how to charge and what to charge. The relationship shouldn’t be about money at all, he says. And yet there it is.
I think that once again, Lost may have the answer. In uncertain territory, open-ended fees do not ensure success and without hope for a timely rescue, flat fees carry great risks; the solution, my friends, is that we work for fish biscuits. Namaste.
This week's joy in the misfortune of others comes courtesy of The Jerusalem Post (from Tuesday, May 18; link good at time of posting):
When a Saudi religious policeman sauntered about an amusement park in the eastern Saudi Arabian city of Al-Mubarraz looking for unmarried couples illegally socializing, he probably wasn’t expecting much opposition.
But when he approached a young, 20-something couple meandering through the park together, he received an unprecedented whooping.
A member of the Commission for the Promotion of Virtue and Prevention of Vice, the Saudi religious police known locally as the Hai’a, asked the couple to confirm their identities and relationship to one another, as it is a crime in Saudi Arabia for unmarried men and women to mix.
For unknown reasons, the young man collapsed upon being questioned by the cop.
According to the Saudi daily Okaz, the woman then allegedly laid into the religious policeman, punching him repeatedly, and leaving him to be taken to the hospital with bruises across his body and face.
“To see resistance from a woman means a lot,” Wajiha Al-Huwaidar, a Saudi women’s rights activist, told The Media Line news agency. “People are fed up with these religious police, and now they have to pay the price for the humiliation they put people through for years and years. This is just the beginning and there will be more resistance.”
“The media and the Internet have given people a lot of power and the freedom to express their anger,” she said. “The Hai’a are like a militia, but now whenever they do something it’s all over the Internet. This gives them a horrible reputation and gives people power to react.”
Neither the religious police nor the Eastern Province police has made a statement on the incident, and both the names of the couple and the date of the incident have not been made public, but on Monday the incident was all over the Saudi media.
As Blawg Review is my witness, I'll never be hungry again.
Irish attorney Rossa McMahon hosts this week's Blawg Review #264 at his A Clatter in the Law blog. His post commemorates the Irish famine of the late 1840s, which resulted in not only the deaths of a million Irish, but also the emigration of a million more from Ireland. As McMahon writes, "The Great Famine looms large in Irish history." Highlights of his Blawg Review include efforts to draft a new Irish constitution, the lack of transparency in Ireland's and America's judiciaries, and reminders that the innocent have something to fear.
This week's joy in the misfortune of others comes courtesy of Boing Boing (from Wednesday, May 12; link good at time of posting):
naika_tei is a Twitter user and anime song DJ in Tokyo. Last week, he found himself stranded in the third floor toilet of an electronics store in Akihabara with a soiled ass and no toilet paper. So he sent out this tweet: "[Urgently needed] toilet paper in the 3rd floor toilet of Akiba Yodobashi." Five minutes later, he sent another desperate tweet.
18 minutes later, he sends another tweet saying: "The toilet paper arrived safely! Thank you very much!" Hooray for helpful Twitter followers!
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.
Ours would be an ideal government (or as close to it as is reasonably possible) if laws were adopted only when no alternatives exist, only to the extent absolutely required, and never in the immediate aftermath of a notorious event or tragedy, when public passions are at their zenith. Needless to say, ours is not an ideal government. Rather, we have what President Lincoln lyrically referred to as a "government of the people, by the people, for the people"; he meant that in a good way of course, but when "the people" are fearful and angry, government's first impulse is to "do something" and usually it's something stupid and dangerous. In Civil Disobedience, Henry David Thoreau aptly observed:
I heartily accept the motto, "That government is best which governs least"; and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe— "That government is best which governs not at all"; and when men are prepared for it, that will be the kind of government which they will have.
Sadly, in the wake of the failed Times Square bombing carried-out by Pakistani-born American citizen Faisal Shazad, we demonstrated again that we are not prepared to demand a measured, dispassionate government. President Roosevelt said, "the only thing we have to fear is fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance." Though speaking of economic fears during the Great Depression rather than fears for physical security, he was right in the broadest sense. Unfortunately, fear scares the hell out of us and we happily gave into our fears after Shahzad's largely ineffective act.
It was widely-reported after Shahzad's arrest that he was given Miranda warnings. That he was entitled to these is indisputable — he is an American citizen who was arrested on American soil; rhetoric from several Republicans, including 2008 presidential nominee Senator John McCain, targeted the Miranda requirement (ostensibly just in these unusual circumstances), while Democratic Senator Joseph Lieberman, the vice-presidential nominee in 2004, suggested that terrorism suspects like Shahzad should be stripped of their American citizenship. It was truly a shining moment in the long history of governmental pandering to the baser instincts of the electorate. A number of legal bloggers discussed the political criticism of the Miranda Rule.
Brian Tannebaum noted that many legislators and commentators were outraged to find that there is no reasonable argument that Shahzad was not entitled to Miranda warnings:
They were stunned. Stunning.
I don't know about you, but if Shahzad confesses, or gives information, I'd like a jury to evaluate it, instead of a court saying years from now that it's inadmissible and as a result the case is weakened to the point that there can be no adjudication on the merits.
But I'm about the law, I'm not about the grandstanding.
I fear terrorism. I also fear politicians who believe the Constitution has exceptions which do not exist, and that those who follow the Constitution and Supreme Court precedent, are anti-American.
Shahzad is an American citizen, being prosecuted in an American court.
The big secret, is that any cop worth his badge, reads Miranda to a suspect. The good ones get the confession, regardless.
Discussing Senator McCain's suggestion that Miranda warnings should have been withheld "until we find out what it's all about", Scott Greenfield wrote that creating exceptions for particularly bad acts and actors has time and again propelled us down a slippery slope:
A host of other politicians supported this position, with equally compelling reasoning, primarily along the lines that only Eagle Scouts deserve constitutional rights. As it happens, Shahzad rendered the argument moot when he was given the warnings and continued to tell the government everything he knew. Happy Dance. News reports say that he's still talking even as I write, which should come as no surprise given that he was a marketer. Maybe he's just trying to network and be genuine. Maybe he's laying the groundwork for the Shahzad brand. No matter. He keeps talking and they keep listening.
....
Assuming that you already know the Miranda basics, that it only kicks in on custodial interrogations (which is itself rife with issues, but not for today), the Supremes slid down the exception slope with Quarles, crafting a "public safety" exception....
....
Then there's Seibert, where the court held that the Missouri two-step was wrong, but as long as police didn't intend to scam the defendant out of his rights (as in, that subjective motivation that was wrong, wrong, wrong to consider in Quarles is now the saving grace for the police), it was cool with them. Slip-sliding away.
Orin Kerr uncritically explained the "detailed maze of Miranda doctrine" and the choice it presents to law enforcement; in a nutshell, risking exclusion of incriminating statements given pre-warning, police try to guess whether their suspect is a chatty sort or not. If a suspect is likely to remain silent if advised he may do so, skip the Miranda warnings, get an inadmissible statement, and develop admissible evidence from it; if a suspect is likely to talk regardless whether he knows his Miranda rights or not, go ahead and give him the warnings and preserve the admissibility of his statements. Kerr concludes that in Shahzad's case, FBI agents made a prudent gamble to Mirandize their suspect:
Based on what we know, it sounds like the FBI made a good judgment call here. Shahzad is a U.S. citizen who has been living in the United States and was caught in the United States for a crime committed in the United States: Surely this is a case for federal court.
....
The countervailing concern is that perhaps Shahzad would invoke his Miranda rights and then stop giving the FBI the information they need. Perhaps obtaining the information was more important than getting a statement that would be admissible in court. But even if that’s true, that’s a call that the FBI could make on the ground. Consider the facts. The FBI had taken Shahzad into custody and started to question him initially without Miranda warnings under the public safety exception. Let’s imagine that Shahzad’s demeanor left the impression that he might speak to the FBI without Miranda warnings but that he might clam up if read the warnings. If that were the case, the FBI could lawfully make the decision of whether to continue to question Shahzad without Miranda warnings or whether to give him the warnings and obtain a waiver. In other words, the FBI could make the call on the ground based on his conduct.
....
Shahzad turned out to be a talker, so the FBI gave him the warnings, got his waiver, and then continued to get more statements from him — all of which will be admissible in federal court.
Greenfield was critical of Attorney General Eric Holder's expressed support for changes to the Miranda Rule (at least as applied in terrorism cases):
There's no word on what exactly Holder is talking about when he says that the adminstration will expand the public safety exception. Will there be changes to the warning itself, such as "you have the right to remain silent, and we have a waterboard right here with your name on it," or will it be that Miranda warnings need only be given when the TV cameras have moved on to the next story of public fascination?
Either way, the concept that there is a new enemy to America that transcends the system that now exists and requires new rules because, well, this is War, will permeate our approach to all threats, real and perceived. We're always at war with something these days, and by using the jargon of war to explain our situation to a public ridden with fear, thus muddying up the thought process and creating the appearance of distinctions that justify, if not compel, new approaches for these new threats, our war against the terrorists today will be our war against somebody else tomorrow. Just as the war against crime, against drugs, brought us to this point. Full of fervor. Full of fear. We must fight the enemy.
....
We've tried suspending the rules, along with our ability to reason, in the past, and it has always come back to shame us for our disgraceful lack of fortitude in the face of a perceived threat. Anybody remember Japanese internment camps during WWII?
While Greenfield and others discussed the opportunistic use of the Shahzad case to contract Miranda, Brian Cuban criticized the suggestions of some that Shahzad be tried for treason:
[In Ex Parte Bollman, Chief Justice John Marshall] wrote that the crime of treason should be strictly construed writing: “the crime of treason should not be extended by construction to doubtful cases”
....
What constitutes “hostilities against the United States”? There is no doubt that the act of the Times Square Bomber was hostile but where they hostilities against the United States in the manner contemplated in the “levy of war” as intended by the Framers? The most telling quote again by Justice Marshall in the Bollman case:
Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution . . .must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation.
In other words, when there are laws in place to deal with crimes, we should use those and not treason which should be strictly construed. We should not force fit the law of treason into situations based on our emotions and passions at the heinousness of the crime.
Norm Pattis suggested that if "treason" is an applicable label for anything in the Shahzad matter, it's applicable to Senator Lieberman's efforts to strip the citizenship rights of terrorism suspects:
Senator Joseph Lieberman, perhaps angling for leadership of a new political party for our times, the Homeland Party, told reporters we need legislation to strip American citizens of their citizenship and the protections of the federal constitution against such things as abusive police procedures when they are suspected of terrorist sympathies.
Sadly, no one accused Lieberman of treason when he uttered this swill. We took it all in stride. Tough times require tough measures. So if we need to abandon first principles to feel safe, what's the harm? America, America, uber alles, right?
Read my words: There will be car bombs in America. More people will die. This seems inevitable in a world filled with hatred. Make no mistake about it, we are hated, even as we hate. We are not a nation apart. We are no city on a hill. We are no longer protected by geography from the sorrow that afflicts other nations.
The only real question is when horror visits again will we really sacrifice core constitutional values so quickly? Will Big Brother become our best friend? Will we slam shut the doors, ostracize folks without trial, torture in the name of freedom? If we do, who will protect us from ourselves?
....
Government has the power to draw lines, making the lives of the other unbearable.
But what happens we become the other?
Though most news was bad news, there was at least one glimmer of hope this week; Gideon discussed a positive development (in New York) concerning one of the rights in the familiar Miranda warnings — the right to counsel established in his namesake, the Gideon decision:
The argument was in two parts: 1) That the public defender system is so under funded that lawyers are provided in name only and that results in a de facto denial of counsel (the Cronic claim); and 2) That the public defender system is so underfunded that there is no way these lawyers provide effective representation of counsel (the Strickland argument).
The court permits the first to proceed while rejecting the second. The Court seems bent on ensuring that these particular plaintiffs don’t backdoor in their ineffective assistance claims, because that is necessarily a post-conviction, fact specific inquiry, whereas the institutional denial of counsel touches on the basic obligation of a State to provide counsel at all.
Collateral preconviction claims seeking prospective relief for absolute, core denials of the right to the assistance of counsel cannot be understood to be incompatible with Strickland. These are not the sort of contextually sensitive claims that are typically involved when ineffectiveness is alleged. The basic, unadorned question presented by such claims where as here the defendant-claimants are poor, is whether the State has met its obligation to provide counsel, not whether under all the circumstances counsel’s performance was inadequate or prejudicial.
It is that last part that is truly noteworthy about this decision: that a court has finally acknowledged that Gideon’s promise may be going unfulfilled and that states cannot prop up a warm body next to the defendant and be allowed to pass the blush test. Gideon did not make a hollow promise. Time to hold states to their obligations.
As long as we're discussing Miranda warnings, Jamie Spencer would appreciate it if the talking heads on television (in this instance, CNN's Jeffrey Toobin) would explain it properly:
[A]s every not-on-TV-because-I’m-too-busy-in-the-actual-courtroom criminal defense attorney knows, Miranda only applies to custodial interrogation, and Toobin’s explanation completely fails to touch on two separate issues, namely: (a) custody and (b) interrogation. Granted, the whole discussion is in the context of Faisal Shahzad, who was already in custody, and presumably being interrogated, yet it’s a slip shod explanation.
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What Toobin leaves out [in discussing the Shahzad case], the custody part, and the interrogation part, is exactly the portion of Miranda that 99% of the public misunderstands. If you’ve been in the same room as a TV since Kojak first aired, you already know the “You have a right to remain silent, anything you say can and will be used” spiel. But it’s the what you don’t part that might hurt you. Or, perhaps, if you wanted to be a decent TV analyst, the part of Miranda that folks don’t know is the part that needs explanation.
All sorts of things you say can be used against you in court, without the need of a Miranda warning. In fact, since most cases involve a police investigation and then an arrest, and then no more investigation after the arrest… Miranda is completely inapplicable. In the majority of criminal cases.
The police make sure of it. If there’s ever a need to question a suspect, they just invite him on down to the police station. Have him spill his guts. Then they let him walk out of the lion’s den, and go prepare the warrant. Tada – not custody.
Also, interrogation is an important component. Basically, it has to be in response to questioning. If, for example, Shahzad is volunteering the information (“Now that you’ve arrested me, let me tell you my entire plan” – like a villain leaving James Bond hopelessly tied to an automatic death machine that doesn’t work) then it might be custody, but not necessarily interrogation.
I know I’ll spend the rest of my career explaining to DWI clients (for example, although they do seem to bring it up quite a lot) why it doesn’t help that they “never read me my rights”. The fault lies squarely with those who continue to perpetuate the myth that “nothing you say can be used against you in court unless you first have been read your Miranda rights”. Thanks a lot Toobin.
It's been recommended many times before in the legal blogosphere that when the police come calling, you keep your right to remain silent in the forefront of your thoughts and invoke it early and often. Your government and neighborhood police are not your friends; by and large, we're well-served to assume that any contact with the authorities is inherently adversarial and to guard ourselves accordingly and despite any indications to the contrary.
Elie Mystal reported an interesting insight into the real world of police work, courtesy of a New York policeman who surreptitiously recorded the day-to-day discussions of his colleagues. His recordings do not paint a picture of friendly neighborhood cops on the lookout for evildoers; rather, these show police who either assume that we're all evildoers or simply don't care and underscore our need to watch the watchmen:
When dealing with cops, it’s important to understand that they are under ridiculous pressure … to hassle people:
They reveal that precinct bosses threaten street cops if they don’t make their quotas of arrests and stop-and-frisks, but also tell them not to take certain robbery reports in order to manipulate crime statistics. The tapes also refer to command officers calling crime victims directly to intimidate them about their complaints.
As a result, the tapes show, the rank-and-file NYPD street cop experiences enormous pressure in a strange catch-22: He or she is expected to maintain high “activity”—including stop-and-frisks—but, paradoxically, to record fewer actual crimes.
I’ve already said that the most important lesson I learned in law school was to not talk to police officers. Since graduation, I’ve learned another important lesson: don’t get into the system. A friend of mine who clerked for judges in big city, urban environments, put it to me simply: “If you have an opportunity to run, run.”
Based on these tapes, you can see why a person would say that. Cops are looking for easy busts. Don’t make it easy for them — especially if you have done nothing wrong in the first place. Running makes you look guilty? Whatever. Cops looking to make their quotas also make you look guilty.
As Norm Pattis suggested above, it's all too easy for us to become "the other" whom we've allowed (if not encouraged) our government to vilify and our police to harass. When Karma comes calling — rightly or wrongly — one of the few protections we ourselves control is the right to clamp our jaws shut, ignoring the police's deceptions and our own worst fears, and to decline to speak the words which the state will use to condemn us.
As it became clear last week that an announcement was imminent, speculation reached an even more fevered pitch. Though Solicitor General and former Harvard Law Dean Elena Kagan had long been considered the front-runner for the nomination, late signs started to favor Judge Diane Wood. David Lat, noting that "in the past week and a half or so, we’ve felt a slight, almost imperceptible shift in the wind, in favor of Judge Wood", made the case for a Wood nomination. Lat suggested that as the most liberal of the leading nomination candidates, Wood would face the strongest resistance from Republican senators but would also do the most to rally Obama's somewhat dispirited liberal political base. Mike Sacks wrote that after the confirmation kerfuffle over Justice Sotomayor's "wise Latina" comments and considering that retiring Justice Stevens is now the Court's lone protestant, with the WASPy Wood "the left’s traditional identity politickers can be satisfied with another step towards the Bench’s gender balance while the right’s neo-identity politickers... can take a break from lamenting where their country has gone." Both were fine guesses — principled speculation in an atmosphere of wild speculation — and both were wrong. After Kagan was announced as the nominee, Julian Ku suggested a consolation prize for Judge Wood:
On the plus side, Judge Diane Wood is now free to consider that other great judicial job opening this spring: member of the International Court of Justice. Wood is more than qualified for the ICJ, and would be the first U.S. appellate court judge to serve on the ICJ, I believe. If she would accept such a nomination, it would be great for the ICJ since it would (no offense to past members of the ICJ) immeasureably raise its profile and prestige within the U.S. legal world (then again, this may not be a good thing). Having been passed over twice for the U.S. Supreme Court, perhaps she would be open to something new?
David Lat announced the nomination at Above the Law and predicted, as did many others, a swift and relatively uneventful confirmation in the Senate:
Kagan was confirmed as Solicitor General last year with 61 votes. It will be tough for the Republicans to rustle up enough votes to defeat her. The position of Solicitor General, the federal government’s primary advocate before the Supreme Court, is about as close as you can get to being on the Court. There’s a reason why the SG is sometimes referred to as “the Tenth Justice.” It will be difficult for Republicans to explain why Kagan was acceptable to confirm as Solicitor General but unacceptable to confirm as a justice.
....
[N]othing she has done in her year as SG would justify rejecting her as a SCOTUS nominee. Barring some unforeseen revelation, she will be confirmed. We suspect that Tom Goldstein’s prediction — made back in February, before Justice Stevens even announced his retirement — will come to pass: “On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice.”
Goldstein hasn't been idle since he made that prediction months ago. Indeed, we were well-prepared for this week's announcement by a 9,750-words-long essay published over the weekend by his team at SCOTUSblog, considering Kagan's past, present, and future, summarizing her qualifications, speculating on her jurisprudence, and predicting her easy confirmation. I'd say "go and read the whole thing" but for the fact that I dislike hypocrisy, particularly when I'm the hypocrite. As I didn't read the entire thing myself, I'll confine myself to recommending that you "skim the whole thing".
Goldstein's co-blogger Lyle Denniston summarized the Kagan nomination in fewer than 9,750 words — few enough that I could read the whole thing. He concluded:
For the time being, Kagan can anticipate that, on many of the heavy controversies that come before the Court, she may not have much opportunity to exert significant influence. The more committed of the Court’s conservative Justices have been having increasing success in drawing swing Justice Anthony M. Kennedy to join them in major cases, and that makes a five-Justice majority that simply may not need Kagan’s vote, even if it were available. Although known for her skills at persuasion, Kagan is but a fifty-year-old with no prior experience in shaping judicial majorities.
Though nominally taking the Stevens seat, she has very little chance, in her early years, of developing the capacity that he had so successfully mastered in drawing Justice Kennedy, sometimes surprisingly, to the liberal side.
It's been noted elsewhere that swaying Justice Kennedy's vote is a prime consideration in nominating Kagan; if so, wrote Darren Hutchinson, it's misguided:
First, it is unclear whether Kagan herself is a progressive or a political moderate, like Kennedy or O’Connor. Her academic writings just do not provide enough insight to place her definitively within a particular judicial camp.
Furthermore, supporters of the idea that Kagan can move Kennedy discount the substantial role that other factors play in shaping judicial opinion. The positions held by the Executive, Congress, social movements and voters all impact judicial decisionmaking, and according to the academic literature in this area, moderates are more susceptible to these external influences than others. Viewed in this light, Kennedy’s vote to uphold Roe could reflect the fact that a majority of voters believe in the right to terminate a pregnancy. Similarly, his vote against “partial-birth” abortion could relate to the fact that a majority of voters oppose late-term abortion.
Of course, Kennedy’s own ideology, Court precedent, the facts of each case, arguments of legal counsel, and debates with other justices likely influence Kennedy’s opinions as well. But the assertion that Kagan can serve as a consensus builder fails to acknowledge the host of other factors outside of debates with colleagues that substantially impact judicial opinion.
People who believe that Obama should appoint someone who can “flip” Kennedy have a limited understanding of the dynamics of judicial decisionmaking. They reduce it to an intellectual exercise where the “best argument” combined with grace and warmth dictate outcomes. Also, as Dalia Lithwick argues, liberal advocates of a Kennedy pal affirm a myth that “conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room.” Both camps, however, are motivated by ideology and external political factors. This reality makes the search for someone who can sway Kennedy a bizarre calculation for a nominee to the Supreme Court.
Many observers considered Kagan's record and found it lacking in some area or another. Of course, when looking for something in particular with any modern nominee, that something will generally be absent or a bit thin — such is reality in the post-Bork nominations era. Regardless, there were some gaps in Kagan's résumé which were more concerning than others. Eric Turkewitz looked at one:
There are three basic niches for a lawyer to be in:
1. Public service;
2. Acadmia; and
3. Private practice.
So I checked out Tom Goldstein’s 9750 Words on Elena Kagan... [a]nd I went looking for the private practice area, wanting to know if she had ever represented some individual, somewhere, in some kind of distress.
....
And here is what I found from Goldstein’s 9750 Words on Elena Kagan:
Upon completing her clerkship, in 1988, Kagan went to work as an associate at Williams & Connolly in Washington, D.C.
That was it, out of 9750 words. From there she went in 1991 to the law faculty of the University of Chicago. A three-year stint at BigLaw seems to be the sum total of her private practice.
Scott Greenfield was also troubled by the lack of experience in legal practice — particularly "trench" lawyering experience — in Kagan's background, but on the broader Court as well:
You would think that putting nine lawyers in a room, they would have to come up with more than 34 years of actual experience in the trenches. Nope. Not this bunch. It must be hard work to find that many lawyers with that little experience.
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The disconnect between the politics of the Supreme Court and the reality of the trial court, or more to the point, the life of real people with the misfortune of finding themselves in court, is the wrong that the trench lawyer movement seeks to right. That presidents and senators pontificate in such a way as to make it politically expedient to avoid any lawyer with actual experience doesn't mean that putting another theorist (more or less) on the court is the solution.
There used to be real lawyers on the Supreme Court, but that was before every nominee underwent a political proctology exam, and when the other two branches in Washington played together a little better. Now that it's a life and death struggle for political hegemony from two political parties whose members can't be distinguished without a scorecard, the risk of nominating a real lawyer is far too great. There might be a tea party, or coffee klatch, or beer bash, because of it. We can't take the risk of doing something right.
With the practicalities of politics duly acknowledged, do we just give up and take the best we can push through? Not to say that Kagan is necessarily the best, or even any good, but she certainly appears to be capable of getting consent of the Senate after the requisite bashing for the television cameras. Of course, after approval, she could always hire a couple of real lawyer to show her where the courthouse is, explain what lawyers do in there and describe how people who didn't attend Harvard or Yale are forced to live with her decisions.
Instead, she's likely to hire a few clerks fresh out of law school. I wonder what schools they'll be from?
At least one commentator focused on Kagan's by-all-accounts-successful tenure as Dean of Harvard's Law School and suggested that running the school qualified her to run anything. Jamie Spencer was dubious:
The list of things that running Havahd Law School does not auto-qualify you for is almost infinitely longer than the list of things that it does. Here is the question and answer she gave last year in a questionnaire for the Senate Judiciary Committee for her nomination as Solicitor General, part 15 Legal Career, subsection (d):
State the number of cases in courts of record you tried to verdict or judgment (rather than settled), indicating whether you were sole counsel, chief counsel, or associate counsel. I have never tried a case to verdict or judgment.
What percentage of these trials were:
1. jury;
2. non-jury. Not applicable; see above.
That’s not just criminal, that’s civil too.
Norm Pattis, who's led the calls from trial lawyers in the blawgosphere for a nominee with courtroom experience, was disappointed by the politics-as-usual underlying Kagan's nomination:
Shame on you, Mr. President. Are the pressures in Washington so great that what was once the outsider's promise of hope has now, and so quickly, become little more than a tap-dancing mime? Any president could have appointed Elena Kagan. Her resume drips with prestige, power and privilege. She is a predictable and uninspiring choice.
There has been murmuring in the Senate that we need to break the Ivy league mold and look beyond the predictable corridors of power for a justice. Kagan ought not to be considered pathbreaking just because her nomination to the D.C. Circuit by President Clinton in 1999 failed.
But, I digress. I am bitter because when I go to court this afternoon to face a sentencing judge in a capital felony, I know that the work I do, the lawyers with whom I associate, the client I represent, are just another set of statistics to those atop the law's vast pyramid. I will struggle to be heard and know that what I say is mere verbiage in the barrel of the law's broken promises.
I took Obama seriously when he talked about change. His betrayal of that promise and transformation of it into a cynical farce has me wondering how long it will be until old wine skins finally burst. Elena Kagan? I suppose she'll do as well as one hundred other high-powered legal academicians might have done. But I had hoped for something better. I had hoped for a trial lawyer. What I go was another harmless error of a choice.
Nate Oman was concerned less with Kagan's lack of courtroom experience than he was with her lack of experience or scholarly interest in business:
With the exception of a brief stint in private practice, Kagan has spent her entire career either in government or else in academia studying the processes of government regulation. She shows little academic or professional interest in business. This is important because while public regulation makes up the bulk of the Court’s docket, private businesses are overwhelmingly the target of that regulation. Everything in Kagan’s career, however, suggests that she is intellectually geared to look at the regulatory process from the government’s point of view. For example, in law school I had an advanced seminar on administrative law from Kagan. It was an interesting class, mainly focused on the competition between bureaucrats and political appointees. In our discussions businesses were always conceptualized as either passive objects of regulation or pernicious rent-seekers. Absent was a vision of private businesses as agents pursuing economic goals orthogonal to political considerations. We were certainly not invited to think about the regulatory process from the point of view of a private business for whom political and regulatory agendas represent a dead-weight cost.
At the right-leaning Volokh Conspiracy blog, some saw Kagan as a relatively moderate choice by a liberal president, or at least the best those on the right could reasonably hope for. Ilya Somin wrote:
Barring some unforeseen revelation, I think Kagan is is likely to be better from any non-liberal point of view than anyone else Obama is likely to pick. Therefore, I don’t see much to be gained from aggressively opposing her nomination. Indeed, if administration opponents dig in and signal that they will wage all-out war against any plausibly liberal nominee regardless of her views, that will just increase the administration’s incentive to appoint hard-line left-wingers. If Democrats believe they can’t avoid a tough nomination battle no matter what they do, they will have little reason to go with relative moderates.
David Bernstein generally agreed, but cautioned conservatives against reading too much into Kagan's past good relations with conservative legal academics:
That’s all great, and from all indications she was a fine dean. But I’m reminded of the conservatives who attended Harvard Law with Barack Obama who lavished praise on him for actually listening to them [literally listening, not agreeing] and treating them with respect when he was editor of the Law Review. Let’s not confuse competence and basic human decency with anything more dramatic. The fact that such qualities are not always on display at places like Harvard doesn’t mean that those who display them deserve anything more than a basic acknowledgment of those qualities, nor that anything more should be read into it.
I am actually rather relieved by the nomination of Kagan. She is evidently open minded enough to have promoted the appointment of some conservative leaning law professors at Harvard, which is no small thing. In fact, I can't think of any other top five law school that has deliberately set out to correct at least a bit an ideological imbalance and then actually followed through. Has any other law school ever said, we don't have enough conservatives? ....Indeed perhaps I should have been rooting for a left wing ideologue as she would be less likely to influence the all important swing votes on the Court.... Discussion of her scholarship... suggests it is not bad at all; not that many articles, but the ones she did write sound like they were quite influential. It could be being a justice on the Court will be just the thing to allow her to become as prolific a writer upon the law as she would hope. And it's also true you don't necessarily want the most creative, academic types to be your judges. You should probably much rather have the Supreme Court consist of nine randomly chosen senior lawyers than you would the nine most cited members of the legal academy, at least if you had to live in the country they were judges of, rather than merely read their opinions.
....
I think the larger political issue is, does it make sense for the GOP to try to make the Dems expend political capital on getting Kagan confirmed, or not? If the answer is not, then I think job of the GOP in the Senate is to look at Kagan carefully, make sure there are no buried landmines, skeletons in closets, and so forth, enquire as to her judicial philosophy, and then vote.
Jonathan Adler took a look at some of her scholarship and found it impressive on the whole, if not entirely convincing in parts. Mark Tushnet felt that one of Kagan's articles concerning the rise of the Federal administrative state was especially praiseworthy:
I think this is an incredibly smart and insightful piece of work, and I've relied on it heavily in my own scholarship (see this article, for example). Kagan identified and gave a label to an important development in the contemporary administrative state, the absorption into the White House of actions formerly -- and formally -- attributed to administrative agencies (both executive branch agencies such as the Food and Drug Administration and "independent" agencies such as the Federal Communications Commission).
Simply seeing this phenomenon for what it was, was an important contribution to our understanding of modern government. But, in my view, there's much more to the article than that. As I see it, the development Kagan identified is an important part of a larger transformation of the structure of modern government, and fits into narratives about what political scientists call "American political development." Kagan points out, for example, that presidential administration is in part a response to political difficulties associated with divided government (and today, divided government seems to mean a Senate in which the President's party controls fewer than sixty seats). I've commented elsewhere that the proliferation of White House czars is consistent with Kagan's ideas about presidential administration. What her work does, that is, is give us a way of thinking about how contemporary government is shaped and reshaped by fundamental features of the political landscape.
Eugene Volokh, a noted First Amendment scholar, described Kagan's writing on First Amendment issues as "excellent" but found it difficult to predict Kagan's jurisprudence from these:
This is partly because her work is in large measure structural and theoretical, rather than focusing on specific constitutional controversies. And it is partly because even her articles that focus on such specific controversies, such as over so-called “hate speech” and pornography, are often more analytical (here’s how we should understand the law, and here are the pluses and minuses of various approaches) than prescriptive (here’s the rule courts should adopt). That’s a fine trait in an article — the analytical components are generally more useful to readers than the prescriptive components. But it does make it hard to predict just how the author would decide cases as a Supreme Court Justice.
....
My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters.
Jack Balkin found the hand-wringing over Kagan's academic record all beside the point; if her record is a bit thin in quantity (and he doesn't necessarily agree that it is), it's still enough to allow judgments to be reasonably formed:
Liberals and conservatives alike are worried about Kagan's politics once she becomes a Justice. They are pouring over her body of legal writings, scrutinizing elements of her career, and psychoanalyzing her from a distance. Journalists are busily constructing a story of her life to make her accessible to the general public, while her political opponents try to engage in various forms of character assassination or, at the very least, a death by a thousand cuts.
I find all of this dreary and tiresome. Apparently, however, it is how we have to do things these days. I can only express my sympathy (perhaps even empathy-- that forbidden word in discussions of the federal judiciary!) for the gauntlet that she will now have to run.
Elena Kagan is hardly a stealth nominee. She has worked in two Democratic administrations and been the Dean of a major law school. If you can't figure out her general sensibilities, you really haven't been trying very hard. It is true that we can't know in advance what she will do precisely in the October Term 2019, but that is true even of Justices with far more elaborate paper records.
Elena Kagan will be a fine Justice, and in time the equal, I fully expect, of anyone currently sitting on the Court. There is a long history of people who had not previously served as judges-- but had served in the executive branch--being appointed to the Supreme Court.
Whereas Balkin called the forthcoming confirmation hearings as a "gauntlet", another legal scholar has referred to them as "a vapid and hollow charade"; that scholar was Elena Kagan herself, in a 1995 article. Kashmir Hill suggested that for its value as a conservative's soundbite, a more careful review of the article indicates that the remark is not particularly damaging, criticizing the excesses committed by Senators of both parties in past hearings and arguing for changes which would elevate substance over style; moreover, Hill noted, Kagan has expressed more moderate views in years since:
Kagan has already distanced herself from her book review from the last decade. These remarks are not being unearthed for the first time. They came up when Kagan was being confirmed for Solicitor General in early 2009. At that time, she remarked: “I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested.”
We imagine her views in 2010 are more in accordance with that statement from 2009, than her book review from 1995.
Daniel Solove remains critical of the confirmations process:
It used to be possible for the truly great jurists of their generation to be appointed to the Supreme Court, a capstone to their careers. But now it’s no longer possible because they are likely to be older and have taken positions on too many controversial issues. I think this is a shame.
He suggested term limits for Supreme Court justices and an easier Constitutional amendment process to reduce the Court's power and the overemphasis on the confirmations process.
Several legal bloggers found their analyses of Kagan's scholarship, professional experience, or politics to be somewhat colored by their personal experiences with her. Elie Mystal reminisced about his time as one of Kagan's Civil Procedure students at Harvard:
Professor Kagan massacred me intellectually, and brutalized my pride. I got some form of a B in her class (I honestly don’t remember if there was a modifier — I’ve tried to suppress those memories). Kagan was a frightening professor for those who wanted to match wits with the brightest legal minds in the world. For people like me, people who just wanted to get through law school with minimal mental damage, Kagan was nothing short of terrifying.
....
As a professor, Kagan was one of the last of a dying breed: a purely Socratic law school professor. With Kagan, there was no panel. There was no back-benching. She would just randomly call your ass to the carpet, and you had best be prepared.
....
Kagan hated unprepared students, but she reserved her harshest ire for people who showed up to her class late. She’d essentially stop the class, literally — she’d stop talking in mid-sentence. Then she’d wait impatiently for the student to assume their seat. And then make some caustic remark about the importance of timeliness.
But I’m educable. So I quickly learned that if I was going to show up to Kagan’s class five minutes late or unprepared, it was better to not show up at all.
....
I was pretty forthright about how I found Civil Procedure so boring I felt like I needed a defibrillator every time I walked into her classroom. She chuckled. It turns out Kagan has quite a sense of humor (so long as you are on time). She started quoting Thurgood Marshall, for whom she clerked, about how rules were the key to defending the rights of minority populations in this country. It was a compelling argument. I mean, it didn’t make me like Civ Pro, but it made me like Kagan a lot more. I realized she was a person, not a God that got strong on the tears of terrified 1Ls. She was just an average human who happened to enjoy the taste of fear.
I managed to make it through the rest of Civil Procedure without incident. But there were many other Kagan sightings during the brief moments of sobriety I experienced in law school. She’s a smoker (or at least was one), and I offered her a cigarette once (she didn’t need my charity). I almost knocked her over as she was coming out of liquor store once (the fault was mine). My greatest failure was that I never once got her to play poker with me (I hear she’s excellent at the game).
Sandy Levinson had the good fortune not to show up late or unprepared to one of Kagan's classes; as her former professor at Princeton and one of the professors who served under her at Harvard, his recollections of her are somewhat less traumatized than Mystal's:
I am incapable of detached objectivity regarding Elena Kagan. Not only was she a student of mine long ago at Princeton; far more importantly, she was consistently kind to me as Dean of the Harvard Law School and is responsible for the fact that I have been privileged to teach there over the past seven years when on leave from my regular duties at the University of Texas Law School. I think the world of her and think she will make an excellent Justice.
Smooth confirmation or no, the process begins in earnest shortly. While you won't go wrong just keeping SCOTUSblog on auto-refresh for the next few weeks or phoning Tom Goldstein and Lyle Denniston now and again just to shoot the breeze, if you're looking for a broader round-up of blawgospheric commentary on the Kagan nomination, I recommend Christine Hurt's guide to the "Kagan-o-Rama".
Now, let the games begin.
This past Sunday was Mothers' Day here in the United States; in Afghanistan, the corresponding holiday is celebrated in early March. American moms are more patient, I suppose. To commemorate Mothers' Day, Mirriam Seddiq told her mother's story in a moving post:
My mother wasn't allowed to leave her house without her burqua after her tenth birthday. She was tall, tall enough for people to call a 'woman'. She had 10 years of childhood and not a minute more. That's more than a lot of Afghan girls got, but it still wasn't enough.
My mother was engaged to my father when she was 17. I used to ask her if she was excited when she got the proposal. She would laugh and say "oh yeah, so excited". It wasn't until much later that I realized that she didn't know who she was going to marry, just that a man had been chosen for her. My father was a well-educated man. He sent my mother to school in Kabul while he was finishing medical school there. She learned to hold a pencil, to read and write her name. She walked in the streets of Kabul without a burqua for the first time as an adult. Freedom was sweet.
My father left Afghanistan before I was born. My mother was to come to America alone, leave me in Kandahar. She couldn't do it. She told him to move on, find another wife, she was staying with her daughter. He gave in - he'd married my mother for her sweet disposition and her good looks, I don't know if he was counting on her determination - and I came to the promised land. An 18 month old girl with her 21 year old mom. Mom didn't speak a lick of English, learned it all at the Chock Full of Nuts on the Bowery (she says) and watching Sesame Street with me.
My mother is not typical of Afghan women. She is cool and fiesty and raised her kids to be soulful, thoughtful and spiritual. She sent me away to college and I was the first woman in my family to do that. I lived in a dorm! I stayed in my apartment for summers! I backpacked through Europe for months! I became an attorney who kept her last name and I defended people accused of terrible things. Through all of this, I heard my mother's voice "Zary, you can do it. Zary, don't ever say you can't. Zary, don't quit, try harder. Be better."
My mother told me that if I changed my last name, I would have to repay her every dime she paid for my education. ("If your husband is going to get the credit, then he should have to pay for it.")
Mirriam Seddiq is soulful, thoughtful, and spiritual, and an intelligent and respected attorney and blogger. I'm pleased to relate that my mother also told me to keep my last name, so at least I have that much in common with Mirriam.
When a woman sued Starbucks for injuries she suffered when scalded by a cup of hot tea, news outlets pounced on the story, drawing parallels between this case and the infamous McDonalds "hot coffee" lawsuit from a few years back. Whether there are anything more than superficial similarities between the two cases remains to be seen and Eric Turkewitz criticized those reporters and commentators who discussed the case without determining the facts:
Facts, facts, facts. That’s what makes and breaks lawsuits.
So I called plaintiff’s counsel, Elise Langsam. She’s been practicing 30+ years and has handled her share of scalding cases, often from showers where the landlord failed to set the water temperature controls properly. I wanted to know what actually happened with the Starbucks tea.
Here’s the deal. The plaintiff is Zeynap Inanli, a pro tennis player. Pro athletes aren’t generally the type of people that trip over their own two feet. And she didn’t.
The tea was bought at Starbucks near Grand Central Station on Lexington Third Avenue. The barista — coffee house devotees love that pretentious name for a counterperson – put the lid on, but didn’t put it on tight. As Inanli walked with the tea, that lid popped off and Inanli’s arm was scalded with the contents.
Inanli was admitted to the Weil Cornell Burn Unit for five days as a result.
Combine unsecured lid with the fact that the tea was so hot it caused second degree burns to the arm of the tennis player, and you have the elements of an action. So, two simple facts are at play: The failure to secure the lid and the scalding temperatures.
As Langsam told me, “You don’t put molten lava in a cup with a loose lid.”
As Turkewitz noted, with these facts, the case seems less like a major news event than a "run-of-the-mill negligence" matter. In a second post, he called-out the Reuters news service's shoddy reporting:
Reuters simply published a snippet from a modest legal filing, and then regurgitated the story of Stella Liebeck and McDonald’s coffee. As if all burn cases from chain restaurants are exactly the same. That’s journalism today?
....
You want to know what their excuse was for not finding out the actual facts? Here it is:
Starbucks, based in Seattle, did not immediately return requests for comment. The plaintiff’s lawyer did not immediately return a call for comment.
Clearly, this was a critical, time-sensitive story that had to be published immediately. They must have been sitting there terrified that they might get out-scooped, while an environmental disaster looms in the waters to our south, while we fight two wars, while the world waits to see if Greece will go belly-up and while our economy struggles.
Does Reuters actually give a damn about what they produce, even when their writers don’t? Or is it just enough that they produce media filler, and leave actual journalism to others?
When I saw the piece I couldn’t believe such miserably lazy reporting passed for news, but when I Googled it I was stunned at the number of major news organizations that decided to run with it.
If we can't rely on traditional journalists for reliable, complete reporting and analysis, thankfully we have bloggers like Turkewitz to do their jobs for them and correct the record. Mike Masnick is another on whom I've come to rely, particularly on legislative issues involving complex or developing technologies. He's thorough and evenhanded, not to mention refreshingly skeptical of the official statements of major governmental and business players. A good example of the quality of his writing is this week's post concerning the efforts of the head of the Department of Commerce's National Telecommunications and Information Agency to promote the federal government's role in internet regulation; Masnick discussed the official's latest comments and whether we can rely on the government to regulate the internet without damaging it:
All of that sounds good -- and I'm sure his heart (and his mind) are in the right place on this... but the details still scare me to death. As in his earlier speech, he lists out areas where he thinks the government has a role to play. And, if you're unfamiliar with the deeper details in any of those areas, it might be hard to disagree. But, as you dig deeper on each one, it gets more and more troubling.
....
The devil is very much in the details, and special interests have a really strong ability to influence the process and the details, so that any "balanced, internet-savvy" plan comes out as anything but that. For all of Strickling's best intentions, opening these things up to new laws really opens them up to abuse by folks who are world-class experts in abusing the system.
....
It's easy to look in hindsight and say "this is a good law" and "this is a bad law," but it's incredibly difficult in advance. If there were actually a system and process for reviewing laws to see if they ever actually did what was promised, perhaps it would be worthwhile to experiment. But that's not how the government works. Instead, politicians pass laws and just pretend they must do what they claim -- and then unintended consequences are ignored until the problems become big enough that a new bad law takes the old bad law's place.
Yes, that's a cynical view, but it's hard to argue with it when you look at the way the federal government works. So, as idealistic as Strickling may be, his ideas on Internet Policy 3.0 are incredibly scary, because of those unintended consequences that he can't predict.
We ignore the consequences of increased official authority at our peril. For years, we've waged a "war on drugs" which designated more and more substances as contraband, with vastly-increased criminal penalties. A steady drumbeat of political arguments about the dangers drug sellers and users pose to communities and police have been used to justify these enhanced penalties, to justify broader and more-frequently-used exceptions to traditional Fourth Amendment doctrine, and to justify the use of quasi-military police equipment and tactics in even the most minor drug-related arrests. Radley Balko has been unafraid to point out the many failures of the war on drugs and the dangers posed by police militarization, but the scale of those dangers is often difficult to convey in words. As the adage says, "a picture is worth a thousand words"; a video he posted recently is worth many thousands.
It's a terrifying and chaotic scene. As Balko describes, "This is the blunt-end result of all the war imagery and militaristic rhetoric politicians have been spewing for the last 30 years—cops dressed like soldiers, barreling through the front door middle of the night, slaughtering the family pets, filling the house with bullets in the presence of children, then having the audacity to charge the parents with endangering their own kid. There are 100-150 of these raids every day in America, the vast, vast majority like this one, to serve a warrant for a consensual crime." The raid turned-up a misdemeanor amount of marijuana.
This video was widely-shared in the legal blogosphere, in posts from Scott Greenfield, Robert Guest, and Brian Tannebaum, amongst many others. Paul Kennedy wrote, "I'm fairly certain that if you read the offense report it won't leave quite the same image in your mind as this video will. This should be required viewing for every judge who sits and decides whether the police acted reasonably or not in a given situation." Jeff Gamso noted that everything — every horrifying thing — was done by the book:
The cops acted properly. They got their warrant. They went after the miscreants. Did their job. Smashed down the door, shot the family dog, terrorized the family and the kids, busted the parents for misdemeanor pot possession - and for endangering the welfare of the kids.
Saving the future, one dead dog at a time.
The kids, no doubt, are grateful for the fine work the cops did protecting their sensibilities.
Norm Pattis drew a line in the sand, damning the consequences:
This is the most powerful argument I have ever seen in favor of the Second Amendment. And it is one of the few times I have viewed a videotape of a police procedure and realized that I could shoot back without remorse. So if you are thinking about bursting into my home with or without a warrant, be forewarned: Shoot to kill my dogs, and I will shoot to kill you. Period.
Rick Horowitz, who notes that he's been reluctant to own a gun, echoed Pattis' sentiments and posted a literal, not figurative, call to arms:
[T]he right of the people to keep and bear Arms is routinely infringed. By “law.” In California, for example, the people are currently allowed to bear Arms, but since the Second Amendment forgot to expressly mention the ammunition that goes with it, the guns must be unloaded. A lot of good being able to bear unloaded Arms does.
Of course, when the Revolution starts, California can go fuck itself.
....
The police in the video followed the “accepted procedure” of our courts, announcing themselves (under cover of darkness) giving the occupants a few seconds to rouse themselves before busting down the door, rushing in and shooting the family dog. Apparently, the dog must have refused to comply with their orders even after being shot, because after a brief pause several more shots are fired into the dog, silencing its screeches of pain.
Fortunately, they appear to have missed the children.
The officers are dressed in exactly the type of outfit that would have roused George Washington, Thomas Jefferson, James Madison, Elbridge Gerry and the thousands of other Founders of our nation to go to war against their government. And anyone who doesn’t think these men would go to war against the government under circumstances like we face today simply doesn’t know much about the history of this country.
This is one reason the government wants to ensure that you do not exercise your right to bear arms.
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Don’t believe me? You don’t think the Founders thought we might need to protect ourselves from our own government? They frequently made comments about the fact that one thing that made America different, and unlikely to fall to a tyrannical government, was the fact that Americans own guns.
....
But, again, views like these are the reason why our government wants to take away our right to own weapons, or, in the alternative, wishes to limit the types of weapons we can own. The Founders, by the way, talked about that, too. They knew that tyrannical governments first work to disarm their citizens. Today, that starts by making sure the weapons available to us are not nearly as powerful as the ones the government uses to shoot our dogs.
This move needs to be resisted politically. We can vote out any politicians who try to limit our right to own weapons powerful enough to protect us against them.
