Travelers Anonymous

The Cunard Line famously opined that "getting there is half the fun"; the phrase is a a charming reminder of how travel used to be. Were the legendary cruise line run like a modern airline, of course, their slogan might be more like, "Getting there was fun at all? You owe us a $50 enjoyment surcharge." We can expect the handy chart of airline fees USA Today has compiled (via Lifehacker) to be supplemented with a new "Enjoyment Surcharge" once someone from the airline industry spots this post. Sorry.

I've long admired the anonymous Blawg Review Editor's willingness to brave the unfriendly skies to visit the many of us who've come to know him through his long stewardship of the Carnival of Legal Blogging. Frankly, when one considers Ed.'s obvious aversion to self-identification, the demands of post-9/11 air travel make his efforts all the more remarkable. His Blawg Review #283 is occasioned by World Tourism Day, which celebrates "the role of tourism within the international community and to demonstrate how it affects social, cultural, political and economic values worldwide"; nonetheless, Ed. doesn't spare us a few links here and there discussing the "security theater" and other challenges and indignities which make modern air travel something less than half the fun of getting there.

Highlights of this week's edition include posts on suspicionless border searches, libel tourism, and the appeal in the "Twitter Joke Trial", which began with an exasperated comment made at the UK's Robin Hood Airport. Bon voyage, Ed.!

Next week's Blawg Review #284 will be hosted by the extraordinarily-industrious Date Available, who is scheduled to host sixteen of the next eighteen weeks. Kudos to Mr. Available!

UPDATE: Mark Bennett, who hosted Blawg Review #282 just last week, has signed-on to host next week's edition at his Defending People blog. His Constitution Day post was great; to follow that effort just two weeks later is nothing short of amazing. I'm looking forward to it already.

Image Credit: Duke University Libraries

TGIS: Thank God It's Schadenfreude! (288)

This week's joy in the misfortune of others comes courtesy of WSBT.com (via Hit & Run) (from Tuesday, September 21; link good at time of posting):

The ad urged people to go to the "southbendon.com" website for a look at the "15 best things about our pubic schools." That's right, the billboard said "pubic" instead of "public" schools. The letter "L" had been left out of the word public.

....

Responsibility for the spelling error has been claimed by the Blue Waters Group. The company does work for the city of South Bend's redevelopment commission to promote the city.

"I feel terrible. It's a mistake we made and we're guilty of it, and responsible for it. and we take full responsibility for the error," said Patrick Strickler, president of the Blue Waters Group.

"Four people looked at it, eyeballed it and didn't see the mistake, and those people all work for me,” Strickler explained. “We take responsibility for it. We simply blew it. We did not see the missing "L."

[Previous TGIS]

A Round Tuit (45)

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.

Time was | when their plebiscite elected
Generals, Heads of State, commanders of legions: but now
they've pulled in their horns. Only two things really concern
them:
bread and the Games.

— Juvenal, Satire X: Lines 77-81 (Translated by Peter Green)

The last portion of that quote from Juvenal's Tenth Satire is often translated (and perhaps better-known) as "bread and circuses", the Latin for "games" being "circenses". One wonders what he would have made of the election-year circus unfolding in New Haven, Connecticut's State v. Hayes trial.

The facts of the case are, in a nutshell, that Hayes (with an accomplice) was responsible for the brutal killings of a mother and her two daughters; this is one of those few pre-conviction instances where we can dispense with the qualifier "allegedly" — Hayes has confessed and attempted to plead guilty to the charges. Why the trial, then? Simply this — the State of Connecticut is intent on executing Hayes for the crime and a defendant cannot plead guilty to a capital crime; hence, the greatest show on... well, in Connecticut.

With a sensational crime, an admission of guilt, and an upcoming election, one can understand the State's eagerness to undertake this costly trial. People are outraged by these heinous murders — more outraged than usual, perhaps, by the fact that the killings were of three white women in a prosperous suburb — and any jury would likely be in a killing mood. The defendant's confession makes conviction a certainty. The costs of the trial may be considerable, but that's money well-spent (and not their own money, after all) to demonstrate tough-on-crime credentials ahead of an election. What could possibly go wrong?

The wheels began to come off when, on just the second day of the trial and during the emotional testimony of the patriarch of the murdered family, a juror passed a note to the judge. Norm Pattis described the "unprecedented" happening:

When the juror was questioned, he offered the following: He did not think he'd be able to render a verdict in the case given the evidence. Is the case too gruesome, you might wonder? No. That was not the issue. The state's case was disorganized and made no sense, the juror said. It appeared as though the case was poorly prepared, he opined. During the most dramatic and sympathetic testimony of the case, that of Dr. Petit, a juror all but raised his hand and asked: "What the Hell is this all about?" The sucking sound you heard early this afternoon was that of the prosecution's gonads retreating to a safe, dark place.

I've spent a lot of time in courtrooms and this ranks as one of the most amazing things I've ever heard.... This isn't exactly a case turning on an obscure point of law or difficult to conceive facts. A juror vetted after lengthy voir dire by both parties simply declared "no mas."

I have never seen a prosecution so effectively neutered and so quickly. It is as though the juror listened to the state, considered its star witness, and then decided the case wasn't worth the time it would take to decide it. How can the prosecution rebound from this unsubtle humiliation?

Jeff Gamso discussed the juror's extraordinary declaration and the judge's decision to dismiss him from the panel for expressing such doubts about the State's presentation:

Frankly, calling that "unprecedented" doesn't begin to capture how truly bizarre an event it was. Jurors don't do that.

....

[A] juror who's dissatisfied with the prosecution's case? Well, gee. Tough nuggies. Life's a bitch. But them's the breaks.

Not this time, though. This time the judge, the Honorable Blue, and over defense objections, dismissed the juror. Because, you know, it's an important case. The state wants to kill. We can't have a juror who thinks they're screwing it up, who might vote for life - or god help us, might vote not guilty.

Pattis was also critical of the judge's decision to dismiss this defense-leaning (or at least prosecution-doubting) juror and wrote that this incident exposed the flaws in Connecticut's time-and-resource-consuming voir dire process:

Judge Blue, concerned lest the man’s obvious discomfort and displeasure with the bungling efforts of the state to convict a man whose lawyer had already told jurors was guilty of murder, tossed the panelist over the state’s objection. Expect to hear more about that on appeal: It’s not enough to seat of jurors prepared to kill? We must now make sure that jurors think well of the state?

....

Let’s face it folks: Voir dire ailed in this instance. I did not see the juror, but I cannot escape the conclusion that he was a lingering nut job. If [defense counsel Thomas] Ullmann saw it, he banked on this fellow for a mistrial. But how did the state miss this?

The real answer is that neither side most likely realized the man was a smoldering volcano ready to erupt. Talking to him for upwards of an hour during voir dire didn’t detect it.

....

This maudlin show trial was unnecessary. The defendants offered to plead. But the state wants to kill them. We don’t permit men to submit to death. That would be obscene. So to make ourselves feel better we engage in a show trial and then make special rules to handle it.

Justice is mocked, but people feel good. Kumbaya, anyone?

Scott Greenfield commented on the circus sideshow this show trial has become:

There's no doubt that this is "unusual", to say the least, but for a judge to worry that a juror's concern might "contaminate" the other jurors is even more peculiar. The very word choice suggests that a juror who isn't favorably inclined toward the prosecution carries a "disease" that could "infect" others.

....

The duty of a juror is to weigh the testimony. If a juror is having difficulty understanding the significance or context of the testimony, thus making it difficult or impossible for him to weigh it, he's doing nothing more than alerting the court to a problem.

Rather, the proper reaction from the court is to inform the juror that this is an adversary process and the attorneys for the respective sides are entitled to present their evidence in whatever fashion they deem appropriate. That the prosecution's presentation makes it difficult, if not impossible, to understand what they heck they are doing isn't a problem for the court to resolve, but rather for the juror to take into account when called upon to decide the case. In other words, if they did a lousy job and failed to persuade you, for whatever reason, then speak to them by your verdict.

But not in Connecticut. Not in the trial where rich white folks were murdered. Get that heckling juror out of here so he doesn't spoil the plot line. The show must go on.

Gideon didn't absolve the prosecution or the judge of their portions of blame for the Hayes spectacle, but he wrote at length about the role the press has played in building and maintaining the public frenzy over this trial:

Sure, the crime is offensive. Sure the crime is heinous. I’ll accept whatever adjective you choose to throw at me. But there is an unmistakable stench of race and class politics emanating from that courthouse in New Haven. Out of curiosity, I called a source who is familiar with the goings on in that courthouse. “Are there any other trials going on currently?”, I asked. Sure enough, there is one other, just a floor below the Cheshire spectacle: State v. Brandon Bellamy.

By the information provided at that link, Mr. Bellamy is accused of two murders. That’s two victims, two families devastated, multiple lives ruined. Mr. Bellamy is also black. Perhaps his alleged victims are too, I don’t know. “How many reporters there?”, I followed up.

None.

Not a single one. While the Cheshire trial needs a horde of media vans lining the streets and every able-bodied reporter in the State to cover it, just 20 feet below is a possible capital felony trial that no one gives a shit about.

....

Is it that difficult to understand that we have become the very monster we are condemning when we forsake the basic human values of dignity and compassion? That we are undermining the foundations of our system of justice when we want to “skip the trial and hang ‘em already”? Have we devolved to the point that intelligent discourse is left to fly-by-the-seat-of-your-pants networks like Twitter? Oh wait.

Mr. Hayes will be found guilty of several crimes and then 12 people will have the task of deciding whether to let him rot in jail for as long as he lives or to spill blood on all our hands. Some are licking their lips at that prospect. I don’t see the difference between them and Hayes.

Maybe it hasn’t occurred to all who are riveted to the trial, but what they’re witnessing is the slow murder of one man. All the reporting, the jeering, the condemning is nothing but spectatorship of the slow build up to the execution of a human being. Talk about macabre.

Murder is a terrible thing. It is not to be relished, enjoyed or anticipated. Let us not make a mockery of justice and of the value and dignity of all human lives.

As Juvenal knew, the deaths of condemned prisoners were a popular and frequent feature in Roman games, but we've come a long way since those barbaric days. Connecticuters, enjoy your circus, pass the bread around, and don't forget to vote in November.

A recent New York Times article about prisoners who were exonerated by DNA evidence after having confessed prompted many people to wonder why someone would confess to something he did not do. Mike Cernovich reminded us that interrogations are not necessarily focused on discovering truth but on establishing guilt; drawing on the legal blogosphere's memory — in this instance a 2007 post at Appellate Law and Practice — he noted that the FBI refuses to record interrogations for a reason:

This is straight from the United State Department of Justice's mouth: "Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants."

....

You'll have to take DOJ's word that its interrogation techniques are "perfectly lawful." One wonders who inserted and acceptable. If the FBI doesn't want juries to know its interrogation methods, then obviously it's (allegedly) lawful interrogation techniques are not acceptable to normal Americans.

Which must mean that the FBI's interrogation techniques are acceptable to judges.

What does that say about judges?

Scott Greenfield suggested that we keep these facts in mind should we find ourselves considering a case as jurors:

As Mike notes, the government's position on videotaping makes two things perfectly clear: The techniques used to extract confessions would not be deemed acceptable to "lay persons," and are acceptable to judges. Our government, and in this context including our judiciary, has adopted an official policy to conceal from the public interrogations that the public would reject as unacceptable, perhaps unAmerican. Our judges, in the meantime, have decided that it's best to make sure that its decisions on the subject be kept from public view, lest Americans get an inkling what their government is doing.

....

Should we sit on a jury, it must be kept from our view. We couldn't handle the truth. We wouldn't find it acceptable. But our government, including our judges, has decided that it is both lawful and acceptable to them, even though we might be repulsed, offended, outraged and, to Garrett's point, unpersuaded that it produced a true confession.

This shouldn't be forgotten.

Norm Pattis recommended that when confronted with police questioning, we insist on recording such questioning and any responses we (however inadvisedly) offer:

If you want to short the circuits of an FBI agent, agree to talk to him, but only on the condition that you are permitted to tape record, or, even better yet, video record, your converation. Odds are, the agents will flush a deep red, stammer something about that not being possible, and then bluster with some veiled threat or another. The feds, like most law enforcement agencies, have a policy against electronic recording of statements. There is no good foundation for that policy in law or in fact.

....

Yesterday's New York Times reminded us yet again of why recordings are necessary: Innocent men and women are persuaded by police officers to confess to crimes they did not commit. It happens with disturbing regularity. Men and women spend decades behind bars for these crimes. And still there is no hue and cry among law men about the injustice of it all. The Times reports on a study by University of Virginia School of Law Professor David Garrett that demonstrates dozens of defendants have been exonerated of crimes they confessed to once the DNA evidence in their case was tested. Innocent men, I repeat, confess, and they do so after being left along with police officers who "tune them up" to tell the truth.

Left alone with defendants, and especially the mentally infirm, the young and the vulnerable, law men can easily contaminate an interview by providing inculpatory information to people being interrogated. At trial, these isolated facts are often dressed up as facts that only the perpetrator would know.

....

I say give lawmen choices. But let's protect the accused, too. If the police want to use a confession against a person, then require them to record it. There is no excuse to do otherwise.

In the meantime, don't be bullied. If the cops want to talk, press the record button on your telephone. If the cops flee and refuse to talk to you with a recording device on, save that tape. It might just save you from a lengthy prison term when Agent Feel Good has to explain to a jury why he was afraid of a simple recording of the means he uses to search for the truth.

When confronted by the police you're well-advised to say nothing, but it seems prudent that if one must say something, say as little as possible and require that the entire exchange be recorded. Recording is a necessary tool to counter police abuse elsewhere as well. Our old friend Juvenal [NOTE: A Round Tuit has been sponsored this by the Society for the Promotion of Juvenal Delinquency] asked, "Quis custodiet ipsos custodes?" — "Who guards the guards?" (or, for those of us who are fans of Alan Moore, "Who watches the Watchmen?")

Radley Balko has written many times about the value of recording police activity and about the measures police take (in most cases unlawfully) to prevent recording. This week, he noted that "the democratization of technology has made it easier than ever for just about anyone to pull out a camera and quickly document an encounter with police" and offered an overview:

With both Qik and UStream, you can delete your uploaded videos from your phone, which means that if your phone is confiscated before you can turn it off (or if you keep your phone unlocked), whoever took it can get into your account and erase your evidence.... [I]t would be far better if you had the option to make your videos deletable only once you've logged in from a computer. Another improvement would be the ability to "black out" the phone while it's taking video, so it isn't so obvious that you're recording.

UStream and Qik are not likely to add either function, since both are beneficial only for people who want to make surreptitious recordings. But how about an ACLU or NAACP app designed specifically for recording police? The NAACP's "All Alert" project encourages people to report incidents of police abuse through a toll-free phone number, text messages, or Twitter. But the process for registering a complaint is pretty cumbersome, and the program doesn't allow instant streaming and archiving.

....

The dizzying advancements in personal technology during the last decade have slipped a powerful government accountability tool into our pockets. But it happened mostly by accident. The technology was intended for other uses, and it still needs some fine tuning to work better as a protection against abuses of state power. It's hard to think of a more worthy project for a civil liberties group.

Quis custodiet ipsos custodes? We watch our guardians, or should.

That they need watching is another concern entirely.

When I decided to post these Round Tuits weekly (or weakly, as the case may be), I knew that there would be many legal events for which worthy commentary spans from one week to the next. When that's occurred, I've tried to balance timeliness with completeness in deciding whether to let a topic "roll over" to the next week's round-up. Generally, I don't like to revisit the same issue in consecutive weeks, even if that means losing a worthy post now and again. Sometimes I guess wrong, as I possibly did in featuring the Vernor v. Autodesk decision in last week's thrilling edition. While there were several excellent early takes on the ruling, several others showed-up a bit later; thus, I'll depart from my general practice and feature those posts — gasp! — after talking about Vernor just last week. I hope that you'll find it in your hearts to forgive me.

Eric Goldman confessed that the Vernor case "makes my head hurt", but nonetheless persevered and identified a key consideration which may temper the decision's effects:

In considering the equities of the Vernor case, one fact stood out to me above the others: the architecture firm sold the supplanted software version after buying an upgrade at a discounted price. If Autodesk loses this case, then presumably it won't offer discounted upgrades in the future because each upgrade buyer can unleash the prior version into the secondary market. I would feel totally differently if the architecture firm had simply decided to stop using the software and wanted to liquidate the asset. Instead, the architecture firm got a windfall that Autodesk had clearly tried to prevent, which makes it harder to be sympathetic to Vernor as the downstream buyer. Unfortunately, the panel drafted a rule to preclude the architecture firm's windfall but failed to distinguish the more legitimate asset liquidation situation. In contrast, the equities in the [pending UMG v.] Augusto case point much more favorably towards a First Sale defense, so perhaps that case will effectively limit this ruling to the resale-after-upgrade situation.

In that same post, Venkat Balasubramani wrote:

[S]omewhat predictably, the reactions of people tended to fall towards extremes. My view is that anything less than a very limited ruling in Vernor's favor would have constituted a significant incursion into the contractual relationship.

One point which people picked up on is that the increase of software or content being made available in intangible form (without physical media, such as a CD) changes things. As more copyrighted material is made available in non-tangible (digital) form, I wonder if resale will become much less prevalent.

....

It's interesting that one criticism of the Ninth Circuit's decision is that it paves the way for other industries to start imposing restrictions on the resales of copyrighted material.... According to this argument, if software publishers are allowed to control the terms of redistribution via a license agreement, is the scary scenario of booksellers licensing copies of books next? But isn't this already the case? Companies such as Amazon certainly act as if they license the content to you.... This is also the position Amazon takes in its Kindle content terms, although interestingly, the Kindle terms allow for the perpetual right of possession....

The growing trend toward transferring copyrighted goods via downloads rather than on physical media was on Keith Lee's mind when he considered Vernor:

It’s a new and exciting area of intellectual property that is worth being aware of, not only for lawyers, but consumers in general. Corporations, studios, producers of content, and the like are going to be releasing products in digital versions in much larger quantities in the future – it’s what both consumers and producers want. Consumers want it for convenience, but producers increasingly want it for control. It’s foreseeable that within the next 10-15 years that any sort of physical medium for licensable intellectual property will cease to exist in major markets....

Mike Masnick sees and appreciates those trends, and the effects of legal restrictions on them, better than nearly anyone else; he's somewhat pessimistic about the post-Vernor digital world, not just in the emerging market for e-Books and software applications but also in the video game market, where content is still predominately distributed (and preferred by consumers) on physical media:

[The court] opens the door to effectively killing off the entire concept of the first sale doctrine, by highlighting the rather simple steps anyone needs to take to make sure any "sale" is really considered a "license," and thus removing the first sale rights. Basically, you just have to say there's a license and that "license" has to have a few rather simple things in it. You know all those stories about video game companies hating the used game market? Well, video game companies just got their "kill the secondary market free" card from the 9th Circuit.

Larry Downes is much more sanguine about the ruling and even suggested that Vernor went some way toward correcting an earlier mistake:

[T]he “ownership” regime was always an aberration, the result of an unfortunate need to rely on media to distribute code (until the Internet) coupled with a very bad decision back in 1976 to extend copyright protection to software in the first place.

....

So. You don’t own those copies of software that you thought you purchased. You just rent it from the vendor, on terms offered on a take-it-or-leave-it basis and subject to revision at will. All those disks sitting in all those cardboard albums sitting on a shelf in your office are really the property of Microsoft, Intuit, Activision, and Adobe. You don’t have to return them when the license expires, but you can’t transfer ownership of them to someone else because you don’t own them in the first place.

Well, so what? Most of those boxes are utterly useless within a very short period of time, which is why there never has been an especially robust market for used software. What real value is there to a copy of Windows 98, or last year’s TurboTax, or Photoshop Version 1.0?

....

In that sense, it never made any sense to “own” “copies” of software in the first place. That was only the distribution model for a short time, necessitated by an unfortunate technical limit of computer architecture that has nearly disappeared.

....

That’s why the Vendor decision, in the end, isn’t really all that revolutionary. It just acknowledges in law what has already happened in the market. We don’t buy software. We pay for a service—whether by the month, or by the user, or by looking at ads, or by the amount of processing or storage or whatever we do with the service—and regardless of whether the software that implements the service runs on our computer or someone else’s, or, for that matter, everyone else’s.

In mentioning Mark Bennett's Constitution Day edition of Blawg Review on Monday, I remarked that I'd planned to discuss Constitution Day here, but wouldn't because he did such an excellent job of it. I was only half joking. If you want to know how my "Constitution Day" section of A Round Tuit (45) would've read, just go reread Bennett's Blawg Review and imagine it being half as good. There you go.

If this post and his Blawg Review haven't satisfied your craving for legal blogging round-ups this week, there are certainly others. No, this won't become a review of the reviews (or, as Juvenal might say, a watcher of the blawg-watchers), but it's always worth a look at the latest Law School Roundup, hosted this past week at the Thanks, But No Thanks blog and other weeks at Evan Schaeffer's Beyond the Underground blog. Most days, Colin O'Keefe gathers the best posts from the LexBlog network.

In addition to those, and to the daily round-ups at the Above the Law site in their Morning Docket and Non-Sequiturs posts, I'd like to recommend a couple more. The Marquette University Law School Faculty Blog posts a Best of the Blogs feature; in the most recent one, Edward Fallone highlighted posts about "trivial but interesting" topics like comic books, football, and video games.

Charon QC posted a review gathering "a few" (he's a modest sort — it's actually more than two dozen) UK law blogs, including John Bolch's Family Lore blog, John Flood's Random Academic Thoughts blog, Carl Gardner's Head of Legal blog, the "Familoo"-written Pink Tape blog, and David Allen Green's Jack of Kent blog. From the latter two, I'll mention a couple of particularly-notable posts from the past week.

Familoo advised that in Britain's family courts, it's not only claimants who need protection from abusers; their lawyers could use some help now and again as well:

Its not just the applicant for a non-molestation order who is harassed. Lawyers and other professionals are often subject to abuse, harassment and other upsetting conduct. It’s a feature of the job, and you learn to deal with it, but it can be highly stressful.

....

Particularly I think in family cases, things can take a different turn and can go beyond threatening or abusive behaviour at or in court. Some examples that other colleagues have experienced include heavy breathing or abusive phonecalls, abusive emails or correspondence, following a female colleague whilst out alone or otherwise approaching them to air a grievance whilst out in public. Some are on hate or hit lists drawn up by fathers rights groups or other campaigning bodies.

....

Some of us are subject to malicious, repeated or vexatious complaints to chambers, to the Bar Standards Board, to the Ministry of Justice or whoever will listen. Some complaints are legitimate and grounded, others are not. By the time we have been in the job for a decade or so most of us have been subject to some form of complaint, even those will the highest standards of professional conduct, client care and the highest levels of judgment and skill.

David Allen Green discussed the pending appeal of Paul Chambers' criminal conviction. Briefly, exasperated by problems earlier this year at a regional airport, Chambers tweeted "Crap! Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!" His comment was brought to the attention of airport authorities, who dismissed it as non-threatening but duly passed it along to police. The police arrested Chambers despite clear evidence that the comment was not intended (or interpreted by airport authorities) as a threat and passed him on to the Crown Prosecution Service. CPS realized that they lacked evidence to convict Chambers of perpetrating a bomb hoax, so they strained Section 127 of the 2003 Communications Act (covering "menacing" communications) to charge Chambers. He was convicted of the offense and appealed; that appeal will be heard at the end of this week. Green, who has covered Chambers' case from the start and has advised him during his appeal, explained why his case is significant for all Britons:

In one way, this is not a significant case at all: just another appeal from the Magistrates' Court by just another defendant, and indeed the formal penalty - a fine and costs totalling £1000 - is not anywhere near a custodial sentence, but is instead at the lower end of what the English criminal justice system can impose.


However, it is one of the most significant cases of our times, and it is significant on three levels.


First, there is the horrifying lack of common sense or proportion shown by any of those who dealt with the matter.

....

The second significant feature of this case is how the law in question was used by the CPS.

It may seem a technical legal point; but the importance of this aspect should not be underestimated. The implications of the CPS position are highly concerning.

The prosecutors of a section 127 offence need to show that an appropriate action occurred (the actus reus, in legal jargon) and that the defendant had a wrongful intention in doing this action (mens rea).

Paul's tweet was not menacing - there is no actus reus. And he had no intention of sending a menacing communication - so there was also no mens rea.

....

The CPS regard section 127 as a "strict liability" offence, which means they do not believe they have to provide any evidence at all of intention before they decide to prosecute someone.

....

The third significant aspect is the human context.

Prosecutions and criminal records ruin lives.

....

Prosecutions and criminal records should not be light affairs; they fundamentally affect the lives of the defendants, their families, and friends.

A criminal record has never improved a person's life; a criminal record has never directly benefited society as a whole.

Of course they are unavoidable for those who commit crimes; but they should not be imposed casually, and certainly not as casually as it has been imposed in this case.

Charon characterized the Chambers prosecution as further evidence of a decade-long erosion of civil liberties in the UK and a "terrifying tale of modern Britain":

The Rule of Law is an essential concept in any progressive and civilised society – but it must be a Rule of Law which can be respected.

....

I hope the appeal is successful – not just for the sake of Paul Chambers, but for the sake of our Rule of Law. We can’t respect a Rule of Law which is based on such ludicrous decisions to prosecute – and the government, the law, the police, the authorities, are going to need a lot of respect from those subject to it in the difficult years ahead.

We must repeal bad laws, we must as a country use powers wisely and not vindictively or indiscriminately… or here, absurdly.

In a demonstration of support for Chambers, Green has suggested that on Friday morning UK time, we retweet his tweet containing a well-known line from Sir John Betjeman's poem "Slough": "Come, friendly bombs, and fall on Slough! It isn't fit for humans now." Sir John reportedly regretted writing those famous-but-non-threatening words (we can be certain that Chambers regrets his) and, if he were alive today, might not appreciate seeing them as a trending topic on Twitter come Friday morning. With apologies to him, let's do it anyhow. After all, Betjeman died in 1984; Chambers and millions of other Brits are living in 1984 right now.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Barry Pittard, moviegoings, and Paris Odds n Ends Thrift Store.

What he said.

Constitution Day was this past Friday and, as Constitutional issues often show-up in my (usually) weekly A Round Tuit posts, I expected to feature a few choice Constitution-related posts there on Wednesday. I needn't bother now; Mark Bennett has done a wonderful job of it already with a Constitution Day-themed Blawg Review #282 at his Defending People blog. There's nothing more I would want to add to his excellent discussion of the importance of and challenges to Constitutional rights. Highlights include celebrating the Constitution as vague platitudinous motivator, judging freedom of speech by the lowest common delusional wacko standard, and discovering through statistical analysis that the Third and Seventh Amendments could use a little more love in the legal blogosphere. The Blawg Review Editor will take the reins next week for Blawg Review #283.

TGIS: Thank God It's Schadenfreude! (287)

This week's joy in the misfortune of others comes courtesy of the Telegraph (from Wednesday, September 15; link good at time of posting):

Seventeen-year old Luke Angel expressed his views on America's president after watching a television programme about September 11 attacks on New York.

....

Officers visited Mr Angel at his home in Silsoe, Bedfordshire, where he admitted to sending the email, but claimed that he could not recall his exact words.

A spokeswoman said no action was taken after officers concluded that he was "being silly".

....

"I don't remember exactly what I wrote as I was drunk," Mr Angel told The Sun. "But I think I called Barack Obama a pr---. It was silly – the sort of thing you do when you're a teenager and have had a few."

"The police came ‘round took my picture and told me I was banned from America forever," the 17-year-old said.

"I don't really care," he added, but "my parents aren't very happy about it."

[Previous TGIS]

A Round Tuit (44)

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 never served as a juror in a criminal trial and as a lawyer I'm an unlikely candidate ever to be impaneled; it's possible, but highly unlikely. I've never prosecuted or defended a criminal case before a jury; I'm a lawyer, but I'm not that kind of lawyer and never will be. No, more likely than not, if I ever find myself interested in the deliberations of a criminal jury as something other than a casual spectator, it will be because my fate is in their hands.

I'd not willingly trust my fate to the proverbial "twelve angry men" (or, if you'd prefer, "twelve good men and true"), knowing how fallible and prone to manipulation even the most intelligent and conscientious of us are. I am certain, however, that I'd sooner trust my fate to twelve people who couldn't escape jury service than to ten or eleven of that group when their fellows remain in doubt. Sure, as a (thankfully) prospective defendant, I'd rather have a unanimous jury of twelve hundred impartial peers or, better still, twelve highly-partial family members or people who owe me favors, but I accept that an impartial, unanimous jury of twelve is what our system of justice offers and with few exceptions has always offered us. Smaller juries? Prejudiced juries? Divided juries? No, thanks.

The State of Oregon, where I went to law school and was admitted to the bar, is one of only two states (the other being Louisiana) where jury verdicts in criminal trials need not be unanimous. That's appalling, frankly, but under Apodaca v. Oregon it's Constitutional — for now and, hopefully, not for much longer. I'd prefer that Oregonians themselves would correct the situation, but I'd be nearly as happy if the Supreme Court would step in and do it for them.

The first step has been taken. Eugene Volokh reported that he and colleagues at Mayer Brown LLP have filed a petition for certiorari asking the Court to reconsider Apodaca in light of more recent jurisprudence:

Here’s the basic issue: In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9–3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.)

This partial incorporation is inconsistent both with prior Supreme Court practice and with this year’s McDonald v. City of Chicago decision. (McDonald calls such an approach “watered-down” incorporation.)

In a follow-on post, Volokh discussed the history of the unanimity requirement:

The right to a unanimous jury verdict was firmly established when the Bill of Rights was framed. Sir William Blackstone noted it as an essential feature of the right to trial by jury[.]

....

Unanimity was also part of James Madison’s understanding of the right to trial by jury. Madison’s original draft of what would become the Sixth Amendment provided for trial “by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites,” 1 Annals of Cong. 452 (1789).

The proposal was ultimately revised, with the “unanimity” language omitted, and there can be two alternative inferences from this change. One is “that Congress eliminated references to unanimity and to the other ‘accustomed requisites’ of the jury because those requisites were thought already to be implicit in the very concept of jury.” Apodaca, 406 U.S. at 409–10 (plurality opinion). The other, which the Apodaca plurality endorsed, “is that the deletion was intended to have some substantive effect.” Id. at 410.

But the plurality was mistaken; the historical evidence cited above shows that the unanimity requirement was indeed seen as “implicit in the very concept” of the Anglo-American criminal jury. Protecting the “trial by jury” safeguarded the essential incidents of the trial, such as the unanimity requirement, with no need for a detailed enumeration.

I'm hopeful, perhaps naively so, that the Supreme Court will accept this opportunity to correct their misstep in Apodaca. Scott Greenfield tends to agree that correcting Apodaca is necessary, but he's also unwilling to let Oregon off the hook so easily:

Eugene's argument is that the holding in McDonald, rejecting what it called the "watered down" incorporation of rights via the 14th Amendment to the states is unacceptable, should serve to straighten out the mess made by Apodaca's sloppy plurality, creating this anomalous rule to which only one justice subscribed.

Still, the question remains why the State of Oregon finds a non-unanimous jury verdict acceptable to convict. Putting aside its rejection of the historical common law understanding that a jury verdict be unanimous for conviction, it seems incomprehensible that a state would believe the rejection of a quarter of a jury that the evidence proved guilt beyond a reasonable doubt to be an acceptable, no less good, idea. It may be my bias, but it strikes me as barbaric.

Gideon wrote that considering a non-unanimous criminal verdict "close enough for government work" is an affront to justice:

[H]ow convinced are we that those who are arraigned, indicted and tried are guilty – that we are willing to forgo the simple notion that if society is going to convict, condemn and incarcerate on of its own, then it must be done only after a small representative sample of its members agree?

....

The underlying theme in this non-unanimity movement seems to be that mistrials are an inconvenience. An inconvenience to the court, to the prosecutors, to the staff and to everyone but the one person to whom a trial matters most: the defendant.

How are we to have faith in a system where you are tried by a large governmental entity, your guilt or innocence to be decided by a not-really representative portion of “your” community and then that very government tells the representative portion: it doesn’t matter if you all agree or not, as long as a majority does.

....

A conviction and subsequent incarceration is one of the harshest actions taken by the abstract Government against its citizens. If we can’t get a miniscule portion of the citizens that it purports to represent to agree on the guilt of a man, then the government has failed.

It may be close enough for government work, but when it comes to justice, there should be no such thing.

It's undeniably true that our system of justice, however imperfect, relies heavily upon jurors' intelligence, comprehension, and judgement. Considerable effort goes into understanding and predicting juror behavior and attempting to apply whatever knowledge is gained through those efforts to voir dire and trial presentations. It remains, however, that trying a case to a jury is much more art than science and skilled and experienced attorneys struggle to strike the correct balance in their communications to jurors. Building on their discussion of jury unanimity this week, Gideon and Greenfield considered the challenges of communication and the (hypothetical) utility of questioning by the jury during trials. Gideon wrote:

We like to say that people are tried by a jury of their peers. Yet we lawyers treat these peers as if they were our own, not that of the defendant. The language we use is archaic, complicated and downright stupid and confusing. The format of the jury trial is usually a patchwork of testimony that may or may not be tied up in the end by lawyers depending on their level of competence. Sometimes, I watch trials with which I have no connection and marvel at the fact that jurors are able to reach verdicts of any sort at all. A juror must feel like he’s getting a quick glimpse into an intensely technical and complicated and petty world and the first instinct must be to run in the opposite direction as soon as possible.

....

I’m against permitting jurors to ask questions of witnesses during the pendency of the trial, because in my view it interferes with the State’s burden of proof – at least in criminal trials.

But the idea of permitting jurors to ask questions of the lawyers during closing argument – a la oral argument before an appellate bench – is an intriguing one.

It is often said that you can make or break a case in closing argument: the key piece of evidence left unexplained, the big problem with the defense untouched, leaving jurors no choice but to convict or acquit, simply because you didn’t address it. So why not take the one hour of closing arguments that most courts permit and turn 15 or 20 minutes of that into a free-flowing back and forth between the jurors and the lawyers? Let jurors ask questions about the application of the law to the evidence, explore their doubts about the meaning of evidence presented, clarify their understanding of the import of a particular piece of evidence.

After all, if we want the jurors to decide the case based on the evidence presented to them, then at least let us help them understand the evidence presented.

Greenfield replied:

One problem that presents itself in Gid's Q&A scenario is the asking of irrelevant, immaterial or "curiosity" type questions that call for background information which would otherwise be inadmissible. For example, what if a juror asks whether the defendant, who did not testify, was ever convicted of a crime before? Sure, the judge could "admonish" the juror that it's an improper question, but once the notion is put out there, leaving it unanswered has a huge potential to taint the jurors imagination.

Still, summations present an inherent challenge in our ability to effectively communicate our message to a diverse group. As communication is both sending and receiving, it's often impossible to know whether the message sent was adequately received. We don't know, despite all the voir dire gurus, whether a juror is capable of understanding. Talk too simply and we risk insulting jurors who get it, who feel as if the lawyers are treating them like morons. Make complex arguments and risk jurors having no idea what you're talking about. Do both and bore the crap out of the jury until they stop listening altogether. It's a problem.

....

Like most, I want to hear from the jurors after a verdict to better understand what happened. My experience is that juries rarely decide a case for the reasons anticipated by either side, almost invariably going down a different path than the one urged by prosecution or defense. Sometimes, their reasoning is so bizarrely irrational as to make a lawyer wonder why we bother with the exercise of a trial at all.

"Bizarrely irrational" doesn't fill me with the confidence that "good and true" or even "angry" would. Still, so long as there are twelve of them and their unanimity on the matter before them is required, even twelve bizarrely irrational men can prevent an injustice.

Initial a document, open a shrink-wrapped package, click the "Accept" button; how many software licenses have you agreed-to recently? Probably more than you think. It's become second nature to accept terms with so many of the things we buy these days that we often don't realize when we don't really own anything.

Buy a book, read it, lend it to a friend, and finally sell it to a secondhand bookstore or donate it to a library; that copy's yours to do with as you will. Download an eBook to your reader and you can use it only as much and for so long as the vendor allows.

Buy a CD, listen to it on your home stereo, listen to it in your car, rip it to iTunes and listen on your iPod, lend it to a friend, sell it to a used CD store or donate it to a library; that CD's yours to do with as you will. Download the same album, however, and you can enjoy it only as the vendor allows.

Once we bought books and music, with broad rights to use and resell them. Now that we're downloading eBooks and .mp3s, we've only limited rights to use them, subject to restrictive conditions and DRM controls. There's a tension between, on the one side, our experience with physical goods and our innate sense of what should be ours when we've bought something, and on the other, the pages of legal terms which accompany the electronic versions of the items we purchase online.

If a vendor attaches terms to a copyrighted work which designate that work as licensed rather than sold, or imposes very restrictive terms to segment the market and increase its revenues, must the law honor that? Are purchasers' use rights subject to the whims of vendors' licensing terms, however restrictive?

The highly-anticipated Ninth Circuit case Vernor v. Autodesk answered those questions this past week and, if you're a consumer, the answers weren't good ones. Though the case concerned software rather than eBooks or digital music, the implications for all copyrighted works in digital form are clear — you don't own anything, no matter what you've paid for it. The facts are these: Vernor's business involved buying-up used property and reselling it on eBay; amongst the items he purchased were a number of copies of Autodesk's software applications. Those applications were subject to restrictive licenses which prohibited, amongst other things, unauthorized resales. When Vernor sought to resell the disks and serial numbers he'd purchased on eBay, Autodesk prevented him from doing so. Vernor sued, asking the District Court to find that his resales of the disks were permitted by "first-sale doctrine", whereby particular copies of copyrighted works can be sold or disposed of by owners without leave from copyright holders. The District Court so found, Autodesk appealed, and the Ninth Circuit reversed, ruling that because Autodesk had designated that software as licensed rather than sold, its purchasers were not owners and therefore not covered by first-sale doctrine.

Nate Anderson summed-up the problem:

[I]f a company says you don't have the right to resell a program, you don't have that right. Could this mean the end of the resale market for all digital content? Yup. But the court says it had no choice.

....

So how does one know when it's a "license" or a "sale"? (In other cases, courts have ruled that simply calling something a "license" doesn't make it so.) In today's ruling, the judges laid out a test:

"We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions."

....

So, to recap: EULAs [End User License Agreements] are binding, they can control just about everything you might dream up, and only Congress can change the situation.

David Kravets put it even more succinctly — "guess what, you don't own that software you bought".

I'll admit that I was surprised that the lower-court ruling in Vernor's favor was reversed, and so thoroughly; the folks at the Groklaw blog were no more enthusiastic, but were somewhat less surprised than I was at the result:

I am sorry that some will feel upset, but I did warn you that the underlying legal tide was flowing this way and that I did expect that the lower court's decision would be reversed. EULAs are generally upheld, from all I know and have seen.
....

Ars Technica says only Congress can change this now....

But the truth is, you have a more immediate solution solution. Here it is:

Stay away from software that comes with EULAs that restrict you in ways you don't like.

That's easier said than done, I suspect. Even now, just a few years after Vernor filed suit, the distribution of software on physical media is becoming something of a rarity. Though music on physical media has a longer history, and physical books a much longer one, both are becoming increasingly digital and more and more often exclusively digital. As Evan Brown noted, the impact of the ruling shouldn't be underestimated:

No doubt the distribution of physical copies of software is less important than it was in the past. But the Vernor case is worth looking at inasmuch as the ruling could translate into some potentially wacky arrangements depending on the desires of copyright owners and the accompanying restrictions they may put on the uses of their works. The holding of the case is not limited to software, but to any copyrighted work capable of being distributed in physical form. As Vernor’s attorney Greg Beck has written, “there is no obvious reason why other publishing industries couldn’t begin imposing the same terms. If they do, it may be the end of ownership of books and music.”

....

The decision is subject to criticism in a number of ways. First, it might go against the sensibilities of many ordinary folks who think, quite naturally, that when you buy something (like a CD containing software), you own it. This case confirms that that is not always the case.

A second possible criticism is how the case makes possible some strange situations not involving software. What’s to stop hard copy book publishers from entering into shrinkwrap agreements with people who buy the books, purporting to retain ownership and calling the arrangement a license, while placing restrictions on use and transfer? Under the test in this case, it could be an infringement to lend or sell or otherwise distribute that book. Seems like a dangerous way to lock up information. But I guess it’s better than including curses as DRM.

Finally, the case lends itself to criticism in the way it gives great power to the software companies to really tie up tangible media to the detriment of consumers. Once an application has been sold once, where’s the harm to the software company if it’s transferred to someone else? The company has already been paid once, why must it insist on getting paid again? This grabbiness is really no surprise, though, especially when one sees that the likes of the Business Software Alliance joined as amici on the side of Autodesk.

The decision concerned software rather than books or music, but it's all bits now; the software at issue was distributed on disks and we're now into the age of cloud computing. Still, the impact of Vernor will be felt beyond software and for many years to come, absent intervention by Congress. Corynne McSherry of the Electronic Frontier Foundation, which filed an amicus brief supporting Vernor, predicted the fallout from the decision:

In a major blow to user rights, the Ninth Circuit Court of Appeals has issued a decision that will go a long way toward ensuring that software buyers will rarely be software owners.

In a triumph of legal formalism over reality, the Court held that the copyright’s first sale doctrine – the law that allows you to resell books and that protects libraries and archives from claims of copyright infringement – doesn’t apply to software (and possibly DVDs, CDs and other “licensed” content) as long as the vendor saddles the transfer with enough restrictions to transform what the buyer may think is sale into a mere license.

....

By undermining the crucial balance between copyright owners and users that supports used bookstores, libraries, and DVD rentals, it hurts both our ability to save a few dollars and our ability to retain, archive and access older, out-of-print materials. Libraries and second-hand sellers are often the only hope for these materials and the “long tail” community of researchers, historians and hobbyists that value them.

But the potential effects of this decision don’t stop there: it risks creating a situation in which violating contracts and end-user license agreements (EULAs) could result in a copyright infringement lawsuit (with the heavy club of statutory damages, attorneys fees and low standards for injunctions) rather than just a simple breach of contract claim.

The real shame of the Vernor decision is that it didn't need to have such far-reaching consequences. As Denise Howell explained, the court could've reached its result in a much less disruptive fashion, finding for Autodesk on more limited grounds and without giving digital property vendors carte blanche to impose whatever licensing terms they wish:

Autodesk gives customers the ability to upgrade at a discount well below the cost of buying new software, but also expects them not to deepen the effective discount by selling their old copies. Autodesk forbids this practice by having its software license agreement (SLA) require customers to destroy old copies after an upgrade. True, Autodesk also purports to require customers to obtain its consent to any sale of any of its software (e.g., if CTA had tried instead to sell v.15), but that provision did not need to be at issue here because CTA didn’t try to sell any of its upgraded copies; it sold the outdated ones.

Given all this, the court seems to have missed a more palatable path to the same outcome. From a legal and policy standpoint, I’d be far more comfortable with a court saying CTA did not “own” its outdated v.14 copies for resale purposes, because it knowingly and reasonably forfeited those sorts of rights when it opted for the discounted upgrade. That’s telling your customer it can’t have its cake and eat it too, and shouldn’t offend anyone’s notions of rationality and fairness. Confoundingly however, that’s not what the 9th Circuit hung its hat on here.

....

A better-reasoned outcome would have been that “ownership” of software is possible, even in the face of various transfer and use restrictions, but not when a customer opts for the covert “sell” over the contractually required and financially rewarded “destroy.”

"Why were you in __________?" seems a natural enough question to ask someone recently returned from abroad. As between acquaintances, one might ask from genuine curiosity or just as idle chit-chat. A response might be brief but polite, long and involved, or abrupt and dismissive. There's no obligation to ask or to answer such a question and little at stake regardless. As with many encounters, however, when one of the participants is wearing a badge and acting under color of authority, things take on a different meaning on both sides of the conversation. Questions are rarely asked idly and answers may have consequences.

The most prudent approach to any encounter with law enforcement is to say nothing or as little as is absolutely required; in practice, when dealing with seemingly benign interactions it's often difficult to know where to draw the line. Despite my suspicion of government generally and law enforcement particularly, I often forget myself and fall naturally into polite conversation with them about topics which I have no obligation to discuss. I've not traveled internationally in some time but on returning I probably would've answered the border officer's question "Why were you in __________?" without much thought. I would have, that is, had I not read a post mentioned by Greg McNeal this past week. McNeal highlighted a post written by Paul Lukacs in April; Lukacs wrote about his experience reentering the United States after a trip to China:

“Why were you in China?” asked the passport control officer, a woman with the appearance and disposition of a prison matron.

“None of your business,” I said.

Her eyes widened in disbelief.

“Excuse me?” she asked.

“I’m not going to be interrogated as a pre-condition of re-entering my own country,” I said.

This did not go over well.

....

It took half an hour and five federal officers before one of them acknowledged that I had a right not to answer their questions.

....

Ultimately, the cops let me go, because there was nothing they could do. A returning U.S. citizen has an obligation to provide proof of citizenship, and the officer has legitimate reasons to investigate if she suspects the veracity of the citizenship claim. A U.S. citizen returning with goods also has an obligation to complete a written customs declaration. But that’s it. You don’t have to answer questions about where you went, why you went, who you saw, etc.

Of course, if you don’t, you get hassled.

But that’s a small price to pay to remind these thugs that their powers are limited and restricted.

Though we're well within our rights to remain silent when questioned, our ability to prevent intrusive searches of our luggage at the border is virtually nonexistent. Whether the justifications for such searches are as valid with respect to searches of data contained in electronic devices and computers is questionable. Notwithstanding, some courts have allowed those searches under the Fourth Amendment. A suit recently filed by the American Civil Liberties Union (ACLU) challenges these practices on First Amendment grounds. Mike Masnick described the ACLU's arguments:

Rather than a 4th Amendment challenge, the ACLU is going with a 1st Amendment challenge, saying that these searches violate an individuals rights to free speech and privacy, and specifically highlighting reporters who need to keep information confidential. While it's a different legal argument, I still don't see it passing legal muster. You still have the same problem of not "really" being in the country yet, and thus, not really being protected by the Constitution.

What's really silly, of course, is that Homeland Security knows that border laptop searches are a bad thing. It's why they've issued a warning to travelers about other countries doing laptop searches at the border. Apparently, they don't feel the same way when it comes to them getting to go through your laptop, however.

Scott Greenfield, who often discusses the deterioration of our Fourth Amendment rights, expressed his hope that the First Amendment will protect what the Fourth cannot:

The problem is [the Department of Homeland Security] isn't satisfied that computers pose no threat of physical harm, and use this opportunity to defend the moral fiber of America by searching the content. Why? Because they can. Whether framed in terms of looking for terrorist content or illegal images of kiddie porn, anything on a computer is fair game.

To the extent there's a saving grace, it's that even border searches must be reasonable, though up to now, the operative law treats computers like any other sealed container and considers a search of a laptop to be routine, per the 1985 Supreme Court decision in United States v. Montoya de Hernandez, 473 U.S. 531. No appellate court has as yet recognized that the content of a computer isn't a bag of diamonds, but contains thoughts and information that a person might not want others, including the government, to see.

The simple answer is that if you don't want the government to know what's on a computer, don't bring it across the border. Of course, this defies modern reality and the pervasiveness of computer use in our lives. Computers are our diaries, files, calendar, lives. To shift the onus to Americans traveling abroad to either go computerless or suffer the border guard rifling through your hard drive offers a Hobson's choice. We cannot do without our computer.

....

There are some bright spots elsewhere, with the rulings as to the use of GPS and cell records to "follow" people, but as yet the border remains as closed to privacy as ever. Hopefully, this coalition action will be our best opportunity to address the monumental privacy issues, the ones that bear neither connection to any legitimate purpose for a border search nor a sound respect for privacy.

Finally this week, Dan Hull asked, "Isn't employee (and associate) satisfaction the responsibility of both employers and employees--but mainly of the employees themselves?" He attempted to set our priorities straight:

Consider these "new metrics", in order of their importance in the scheme of All Things:

1. God, the Buddha, Jesus, Muhammad, The Moral Order in the Cosmos, Great Spirit, Sacred Oaks, the Watchers, Eric Clapton.

2. Your family. Close friends.

3. Your customers, buyers, clients. #1 for Work.

4. Your company. #2 for Work.

5. Employees, associates, and the help. #3 for Work.

6. Pets. Animals.

7. Plant Life.

8. Rocks. Cars, household appliances, PI and insurance defense lawyers, some books, some other material things.

9. Airports that make sense. Cheetos. The 1968 Chicago Convention-era "drug implement" of some kind crafted from an actual billy club and given to me in 1985 by a now-dead famous writer. (Please, no jokes or comments; too easy. No, it wasn't Lillian Hellman.)

10. Traveling the world. Reading the classics. Dinner with Annabeth Gish or Parker Posey. (Should be #5, #6 and #7 if you can "afford" them.)

I don't see much there to argue with, apart from his prioritization of Parker Posey. Ms. Posey, if you're listening, I want you to know that I value you much more highly than he does. Sure, Hull's more handsome, erudite, accomplished, and wealthy than I am, but I have it on good authority that the interior of his private jet is upholstered with the pelts of baby seals he clubbed himself.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Maunet, Evan on Engineering Software, and Paris Odds n Ends Thrift Store.

Surrender your necktie and shoelaces before you read this week's Blawg Review.

Keith Lee hosts this week's Blawg Review #281 at his An Associate's Mind blog. Though he discusses the pressure he felt in hosting the carnival of legal blogging, his work speaks to the fact that he didn't shy from the challenge. Instead, he's tackled one of the more difficult issues our profession faces — or, more usually, doesn't face — the high incidence of suicide and self-harm amongst our colleagues. Lee writes:

As Winston Churchill said: “Never give in, never give in, never, never, never, never – in nothing, great or small, large or petty – never give in except to convictions of honor and good sense. Never, Never, Never, Never give up.”

....

It’s important to remember that “Seeking Help is Proof of Strength.” If you, or someone you know seems caught by depression, know that there are those out there who want to help you. Even if you or they are not aware of it, there are friends and family that want to help; they might just not know or be too scared to say otherwise. Reach out – they’ll be there for you.

Highlights include posts about the damage which may be caused by both failures and successes, navigating the politics of the law office and the courthouse, and coming to terms with the choices we've made. Lee himself puts it well:

But this is what I asked for. This is what all of us who want to be lawyers, or are lawyers, asked for. To be thrown in the gauntlet and asked to step up again and again for those depending on us, when we are down or hurting. To provide counsel and guidance when we feel as though we can’t provide the same for ourselves.

Well done.

Mark Bennett will host next week's Blawg Review at his Defending People blog.

TGIS: Thank God It's Schadenfreude! (286)... The Sequel!

This week's bonus joy in the misfortune of others comes courtesy of the Telegraph (from Friday, September 10; link good at time of posting):

China's top-ranking UN diplomat embarked on a drunken rant against the UN Secretary General Ban Ki-moon, telling his boss he'd "never liked" him, and adding for good measure that he didn't like Americans either.

The outburst by Sha Zukang at a retreat for top UN officials in the Austrian ski resort of Alpbach left senior UN officials cringing in embarrassment as others tried to convince him to put down the microphone, according to Washington-based Foreign Policy magazine.

"I know you never liked me Mr. Secretary-General – well, I never liked you, either," said Mr Sha as Mr Ban looked on, smiling and nodding awkwardly during the 15-minute toast attended by the UN's top brass.

....

"You've been trying to get rid of me," said 62-year-old Mr Sha according to the senior UN official present, "You can fire me anytime, you can fire me today."

Later in his impromptu speech Mr Sha turned to an American colleague, singling out Bob Orr, from the executive office of the secretary-general.

"I really don't like him: he's an American and I really don't like Americans," he said.

A second senior UN official who was at the dinner said: "It went on for about ten or fifteen minutes but it felt like an hour."

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (286)

This week's joy in the misfortune of others comes courtesy of the Seattle Times (via Above the Law) (from Tuesday, September 7; links good at time of posting):

Seattle lawyer Anne Bremner twice called 911 to report a flat tire — about 11 miles from where she eventually was pulled over and arrested for DUI nearly an hour later.

Both calls, at 11:12 p.m. and 11:15 p.m. June 3, were made from Seattle's South Lake Union neighborhood, though Bremner told dispatchers she didn't know where she was, according to recordings released Tuesday by the King County Sheriff's Office.

....

Originally, Bremner, 52, pleaded not guilty and tried to seal the records relating to her arrest, saying they invaded her privacy, could hurt her reputation and were not of interest to the public. She said she had been a victim of a hit-and-run accident and suffered a brain injury that mimicked the signs of alcohol impairment.

According to a follow-up investigation by the Sheriff's Office, the damage to Bremner's car was consistent with driving over a curb and the car did not show signs of being involved in a hit and run.

Last week, Bremner reversed course and pleaded guilty to the DUI in King County District Court in Shoreline.

....

She told [arresting Deputy Brandon] Moen she was an attorney for the Seattle Police Department and that Moen had a "bad attitude" and would not "go far" in his career, police reports say.

She also said to various deputies: "I will sue your ass," "I'm famous. It'll be bad for you guys," "You can't arrest me. I represent Seattle and King County. You are making a mistake," and "I represent you guys. Come on, take me home," according to documents.

When told she was going to be arrested, Bremner said she was not an "animal" and did not belong in a cell, the reports indicate.

Once in the precinct holding cell, according to the police reports, she pounded on the door and yelled "somebody help me" and "let me out right now." She lay on the bench and "cried hysterically," police said.

"It was so obnoxious that I went and found Officer Moen and told him she needed to go to jail right now," wrote the arresting officer's supervisor, Kevin Johannes.

[Previous TGIS]

Rosh Hashanah if you must, but I for one will enjoy a Leisurely Hashanah.

At his Likelihood of Confusion blog, just ahead of the upcoming Rosh Hashanah, Ron Coleman hosts Blawg Review #280. He writes:

...Rosh Hashanah is the Day of Judgment for all of humanity—even lawyers. Even judges. Even blawgers!

....

“Happy New Year” is not the primary Rosh Hashanah sentiment; rather, we express the wish that we, and those we love, and the very world we live in, see the way clear to merit existence and blessing for another year. For ourselves we ask for clarity as to what was wrong with our previous submissions, the strength to prepare amendment and the time to get the revised prayers, if you will, filed before the record is closed—secure, however, in the knowledge that such rectification, if pled both artfully and with appropriate candor, can be effective in the manner we litigators call nunc pro tunc—and then some.

Heavy, yes, but isn’t every capital trial?

I look forward to Coleman's Blawg Reviews more than most and perhaps more than anyone else's. He's a thoughtful writer, adept at gathering the best legal blogging and presenting it in an entertaining and informative way. His Blawg Review #191, concerning the history and meaning of Chanukah, remains one of my all-time favorites, as does last year's "not that kind of Chanukah Blawg Review" post. This year's post may be themed around another Jewish tradition, but it will be no less memorable.

Highlights include a questionable trademark decision rendered in service of a college football money grab, a biblical parallel to a modern-day littering case, and another case which may answer whether bigamy can withstand constitutional scrutiny. Keith Lee will host next week's Blawg Review #281 at his An Associate's Mind blog.

TGIS: Thank God It's Schadenfreude! (285)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Tuesday, August 31; link good at time of posting):

Forget "Fore!"

"Fire!" was the cry of the day for a golfer whose off-target swing sparked a 12-acre blaze in Southern California.

The golfer at the Shady Canyon Golf Course in Irvine landed a shot in the rough Saturday.

On his next swing, his club snagged a rock, causing a spark that lit the rough ablaze and eventually attracted 150 firefighters to the scene.

Fire officials say the fire burned through the rough, into vegetation next to the course and over two dry, brushy hillsides.

[Previous TGIS]

A Round Tuit (43)

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.

Has the legal blogosphere become a "Happysphere" where criticism is considered unmannered and applause is expected for any contribution? In the years since I first posted here, the character of the space has certainly changed — many times, depending on how nuanced your analysis might be. In many ways, I think it's fair to say that overall, the Happysphere ethos dominates.

With few exceptions, you can choose nearly any marketing-centric blog and find equal measures of warmed-over "next big thing" cheerleading from last week's social media conference, effusive praise for other marketers, and quoting of other marketers' effusive praise for oneself. Again with few exceptions, one is safe in dismissing these blogs outright — these add nothing meaningful or consequential to our discussion. Those few exceptional marketing-concerned blogs tend to be engaged in other areas of the legal blogosphere, so you needn't be concerned about overlooking them if you steer a wide path around the marketeers.

When I began reading blogs and posting to my own, the legal blogosphere seemed equally divided between practitioners — generally, solo practitioners or those in very small firms — and academics. While there's never been a tremendous amount of interaction between those two groups, there was always a give-and-take within them. Practitioner-bloggers highlighted, discussed, and criticized other practitioners' posts in posts of their own and in comments around the legal blogosphere; academics did the same for their side (although they tended to be so polite about it that we non-academics often couldn't tell if they were disagreeing).

The influx of add-nothing marketers and their incessant commercialization of every facet of the legal blogosphere marked — for me at least — the end of the era in which I joined. I'll admit to a certain suspicion of newcomers these days; the vast majority of them are obviously driven by the marketing pitches they've heard and the others... well, I just assume that their marketers are a bit more subtle unless and until those bloggers demonstrate that their voices are genuine and the contents of their blogs are substantive and informed. Most new blogs I read manage one of these, or even a couple, but not all of them — or at least not for very long — and fall off the reading list within a few months if their proprietors haven't already given-up on blogging in the meantime.

Whereas earlier entrants were driven by their desire to communicate their own ideas and experiences and engage with others, most newer entrants are driven by other concerns. The marketeers weren't here in the beginning; the legal blogs built to maximize SEO values and composed of scraped content or content written by non-lawyers weren't here in the beginning; the BigLaw blogs, which ably summarize current legal issues but usually don't offer much perspective and don't attempt to engage with other bloggers, weren't here in the beginning. They're all here now, and their sheer numbers have diluted the legal blogosphere to the point that, on the whole, it's no longer characterized by the substance and engagement it once was. It's a Happysphere because a significant portion of it is comprised of blogs without substance, disengaged bloggers, and happy marketeers. Criticism is absent because it gains these players nothing.

I'll admit to more than a little frustration of late with the state of things. Is this a thing worth continuing? Into my sixth year of doing this, one would think that I have some answers, but I don't. I honestly don't. Part of my frustration stems from my somewhat vested interest in a healthy legal blogosphere. I've spent a number of years here trying to do what I could to see that new readers could find bloggers who had something meaningful to say, a clear voice with which to say it, and enough backbone to criticize and be criticized in return. There are still many, many bloggers who fit that bill, but it seems that neither they nor I can hope to hold back the tide. With a vested interest comes a loss of perspective, I fear.

Thus, I've found over the past year or two that Twitter is a wonderful respite. Though I've been on there for awhile now, I have no vested interest in it. It's a Happysphere and doesn't pretend (much) to be otherwise. Venkat Balasubramani put it well recently when he characterized Twitter as a "Cult of Positivity", distinguishing it somewhat from the blogosphere:

Twitter is a big place, and I can't speak for much of Twitter, but my impression is that the mainstream Twitter user is overwhelmingly positive. Positivity certainly reigns supreme in the corner of the Twittersphere that I frequent, and my impression is that there are other pockets of it that are overwhelmingly positive as well. Twitter is all about highlighting positive things and people.... while there are a few people who call it like they see it, most legal birds are effusive in their praise and quick to withhold criticism. And this extends to points of view taken, articles passed around, etc. It's almost as if it's socially unacceptable to say that something sucks.

....

I do note the negative effects of overwhelming positivity: bad content gets passed around freely and praised. Bad ideas too. Bad conferences. Bad people. Bad media. Blogs are a much much better filter of stuff for me (granted you can say more when you are not limited to 140 characters). On Twitter, I'm routinely disappointed with what someone (or many people) often describe as a "great article!"

I think that's a fair criticism. In these "Round Tuit" posts, I've often highlighted posts which I believe are worth reading but don't necessarily agree with or posts which shed some light on an important issue but miss the point overall. The blogging medium allows me to do this but explain my disagreement or add some context. I can't do that on Twitter, no matter how many 140-characters messages I string together; Twitter is simply not suited to any sort of meaningful discussion. The net result is that discussions I see in my Twitter stream are by-and-large pleasant but superficial ones. Occasionally there's a more engaged discussion and just as occasionally a heated argument. It's cocktail party chatter, essentially, and as it is at a party, people mix and try to keep things light. Well, at least that's how I remember cocktail parties; I've not had a drink in fifteen years, so perhaps things have changed. For all I know, cocktail parties these days are marked by deep discussions and high drama.

Scott Greenfield touched-on a key problem with Twitter — separating the relevant information from the irrelevant, even amongst those people whose views we respect in the real (or virtual) world outside the Twittersphere:

Some people retwit anything written within a genre or topic in which they have a significant interest, but do so without editorial comment. I don't know what that means to anyone else, but it says to me that you endorse it.

....

The problem is that twitter just isn't a viable medium for expressing critical thought. It allows for the snide remark, but not the reason behind it. It would be great to make enemies, but poor to challenge ideas (or the lack thereof). Which means that it's a fine medium for a pat on the back, a cute statement, some fun chit chat.

But all of this is what's led twitter down the positivity path to pointlessness. Does it not get boring, really quickly, to engage in some half-witty repartee with people you don't know about things that don't matter? Why do we engage in pleasantries with a disembodied name and avatar when we could be speaking to actual people whom we know to have some value to our lives? It's not to call these unknown twitteratti worthless, but rather to say that their relevance is (a) as yet undetermined, or (b) too superficial to be worth the time.

It's a frustration, albeit an easily-remedied one, when someone proves to be an unreliable source of information on Twitter. I think it's fair to interpret retweets as endorsements, though I've come to learn which of the folks I follow routinely retweet worthwhile posts which offer a perspective different from their own. There are many people whose blogs I trust who I find unbearable in 140 characters or fewer. There are others whose posts and tweets I follow closely but for markedly different reasons. There are even a few who will always have a place in my Twitterstream but never one in my RSS reader.

To the extent that I've followed people who, as Greenfield writes, "retwit anything written within a genre or topic in which they have a significant interest", I've unfollowed them just as quickly. There's no point in following someone on Twitter who recommends everything they've read any more than it's worth your time to listen to someone who recommends every movie he's seen, just to let you know that he watches a lot of movies. The quiet unfollow is your friend. Still there's something eminently satisfying about the piling-on one sees from time-to-time when someone transgresses the unwritten laws of Twitter. It's said that a picture is worth a thousand words, but that's severely devaluing this masterpiece from Charon QC on that topic:

I've been selective about which social media I've adopted. I skipped (with a couple of exceptions) the listservs, newsgroups, and discussion groups in favor of blogging. I skipped MySpace and Facebook in favor of LinkedIn. I'm on Twitter but I'll never be the mayor of anything on Foursquare and you won't find me on Tumblr, Flickr, or any other site developed by hipsters who can't find the letter "e" on their keyboards. All in all, if there's a common thread amongst the social spaces I've joined, it's that blogging, Twitter, and LinkedIn have connected me with and kept me connected to the sort of people I would choose as friends offline. If I had any friends offline, that is. As my sister once pointed-out, I no longer need to clarify that someone is an "online" friend because those are the sort I favor and for the most part, the only ones I have.

Notwithstanding, I appreciate that those whom I count as friends are a distinct group from the many others I interact with online. In this, I think there's still some meaning to the concept of friendship in the online world; whether it's materially different than friendship in the offline one is worth discussing. Mark Bennett did so recently:

Before I euthanized my account there, I had hundreds of “friends” on Facebook. Most of them I knew only slightly; some of them I didn’t even really like. Precious few of them were genuine friends.

Someone (I wish I could find a link to give proper credit) coined the term “frends” to represent those online acquaintances—similar to friends, but not quite—a variance that makes all the difference in the world.

A true friend is one who, when he finds out you are in trouble, will drop what he is doing and do what he can to help. Want to know how many genuine friends you have? Get charged with a serious crime.

....

Facebook devalues friendship by calling something that when it isn’t truly: six hundred frends, and if you’re extraordinarily lucky two or three friends.

Who are your true friends? (A benediction: May you never find out!)

More importantly (and more in your control), are you a true friend?

Mike Cernovich suggested that asking who one's friends are is asking precisely the wrong question; instead, he advised us to ask "To whom am I a friend?" He wrote:

To be a great friend puts the action where it should be - on ourselves. When's the last time you go out of bed at 3 in the morning to bail a friend out of jail? Loan a friend a grand? Or to jump start a car? Or to listen to someone bitch about stupid shit?

Friendship requires elevating the other person - your friends. When I have money, my friends have money. It's really that simple. Friendship is a sort of voluntary socialism. Of course there will always be the occasional mooch, but one can get an STD from having sex. Does this mean you stop having sex - or that you start being careful? So, too, it is with friends.

Who are you a friend to? If you wouldn't come pick me up at 3 a.m. when my car broke down, you're not my friend. Why waste time and energy pretending we're friends? We're not, and that's cool, and friendship is so great that you should devote your time to someone who is actually a friend.

....

When you start thinking about what you can do for other people, something contradictory happens: People start thinking about what they can do for you.

....

We are not what we say or think, but are what we do. We become what we do. If we do good things for people, even if we begin as sons of bitches, we change.

Scott Greenfield happily noted that this friendship discussion reminded him of the good old days in the legal blogosphere, when someone would write something on a side topic "and somebody else quibbles for kicks"; "I want in," he wrote:

It will likely come as surprise to some readers, particularly those without a sense of humor or a great deal of life experience, that I'm a pretty good friend to others. Despite my playing the curmudgeon and my refusal to coddle the needy and whiny, I'm usually there for people in need, real friends and even casual acquaintances. Even those I only know from the internet. It's my nature to try to help, regardless of whether the problem is self-induced foolishness or bad luck. I'm the guy you want standing behind you in a fight. There are a good many of you out there who I've help over the years, and you know who you are.

And in return, not much. For some, it's a matter of narcissism, where you "deserved" help and I did nothing more than gave you what the world owed you. For others, it's selfishness, that you are happy to take but disinclined to give. For a few, it's low self-esteem, where you resented me for helping you (hey, you asked) and became angry with me for your sense of "debt" on your shoulder. Sometimes it's a combination of motives and issues, but the net result is the same. Help someone and make an enemy for it. Or at least not a friend.

By my highly unscientific calculations, the friend to friend ration is 10:1, with 90% of those you befriend either failing to return the friendship or actively disliking you for having done them a solid. If you're looking for a return on investment, being a good friend sucks. If you help others because that's just the way you roll, then it doesn't matter. You help others without any expectation of friendship in return, and your expectations are met.

But Mark's post raises a more ominous specter, that those who look for friendship online, and who harbor the bizarre belief... that their Facebook friends or Twitter followers are their real, true, honest-to-god buddies, are in for a rude awakening. A friend on Twitter is a frendship quitter.

When time comes to post bail, see how many of your followers show up with cash in hand.

It's long been a truism that a person with two or three good friends is rich indeed. If anything, the internet may not have enhanced our wealth, but taken from it. With the time spent online worrying about how to spread our wit about at 140 characters at a time, chances are good that people have neglected their real-life friends for their virtual "frends" and end up with neither.

I suspect that Bennett, Cernovich, and Greenfield are all right to some degree. Virtual friends and followers may not be real friends in need; be considerate of others without worrying about reciprocity and others' friendship will naturally follow; and when you stop to take score, the numbers will likely not be in your favor, so it's probably best not to keep score. All this noted, I'm happy to say that my sister's comment is true — there's not much difference in my mind between my online friends and my offline friends. I'm also happy to say that of the hundred or so people I'm linked with on LinkedIn, of the few hundred who follow me on Twitter, and of the few hundred more who read my blog regularly, more than a few I can count as friends by any measure. I'm happiest of all that I can count at least a couple in this section of Round Tuit alone (and I'd be honored if they'd say the same about me). Hell, I'm a one-man Happysphere.

Oh, and Mike? Put me on speed-dial. If your car breaks down at three in the morning, I'll be there with bells on.

While I'm on the subject of the "good old days" of legal blogging, I'll highlight a great series of posts illustrating one of the strengths of the medium which used to be commonplace and is no longer — the knowledgeable practitioner ably dissecting and debunking something which was swallowed whole by the established media.

In this instance, the part of the knowledgeable practitioner was played by knowledgeable practitioner Mark Bennett; the part of "something" was played by a recently-published research paper which concluded that the results gained by public defenders were essentially the same as those secured by private defense counsel. A fine conclusion, certainly; would that it was supported by the researchers' own data, wrote Bennett:

Black defendants who retain a private attorney are almost two times more likely to have the primary charge reduced than black defendants who are represented by a public defender.

That’s a quote, according to Miller-McCune, from a research paper by Richard D. Hartley.
....
Hartley’s conclusion [is] that “there is little difference in the quality of legal defense provided to defendants by private attorneys and public defenders.” Does “little difference” mean the same to Dr. Hartley as “almost two times more likely”? Or do black defendants just not count?

I won’t call it sloppy without reading it, but the methodology of the study is suspect—if you don’t know whether hired lawyers beat more cases outright than PDs, how can you possibly reach such a conclusion?

As he made his way through the research paper, Bennett added a few more concerns about the authors' methodology and conclusions, noting that of the ten results identified, seven favored private defense counsel:

[T]he numbers are statistically insignificant—that is, there is calculated a more-than-5% chance that they are due to chance—but all point in the same direction, which suggests that they are not due to chance.

Hartley and his colleagues claim that:

This study suggests that there is little difference in the “quality” of legal defense provided by private attorneys and public defenders. Public defenders are as effective as private attorneys in Cook County.

Unless that’s the result one is looking for, the study—as Hartley and his colleagues present it—suggests no such thing. Don’t believe me? Ask a black defendant. Or an employed defendant. Or a male defendant. Or an unemployed defendant. Or a defendant who pled guilty. Or one who’s out on bail. Or one who’s detained.

Bennett continued:

[I]n Hartley’s data (Cook County 1993) defendants who were convicted after trial were 3.48 times as likely to be incarcerated, and received sentences 46.87 months longer, with hired lawyers as with public defenders.

One way to account for this is as Hartley and his colleagues do: “These findings reveal that the so called jury trial penalty might only be applicable for defendants who retain a private attorney.”

Another way to account for it is this: these findings reveal that, because they have more confidence in their lawyers, facing severe sentences, defendants with hired counsel might be more likely to go to trial than defendants with public defenders.

Or this: these findings reveal that defendants with hired lawyers might be likely to try less-defensible cases, thereby irritating judges and inviting a trial tax.

Or even this: these findings reveal that people facing serious charges and maintaining their innocence, who if they lose will be more severely punished, might be more likely to hire lawyers than others are.

For Hartley’s statistics to mean anything at all about the relative merits of public and private counsel, we would have to know how many cases each type of lawyer got dismissed or acquitted or, at a bare minimum, how many cases in Cook County were dismissed or acquitted in 1993....

In his final post, Bennett admitted that part of his pique about the study was due to the authors' characterization of public defenders' motivations and ethics:

Aside from their sloppy writing and questionable conclusions, the collaborators wrote a couple of things that really ticked me off.

First, they consistently wrote about what happens to human beings in a criminal courthouse as “case processing,” as in:

Public defenders, like prosecutors and judges, want to ensure the smooth and efficient processing of cases.

That’s downright libelous to all of the ethical and conscientious public defenders who, rather than wanting to ensure the smooth and efficient processing of cases, want to make it as difficult as possible for the state to put their clients into boxes. We’re not making Soylent Green, we’re fighting for souls. Some prosecutors and judges may think of what they do as case processing, but nobody who shares that view is welcome at the counsel table with me.

With Mark Bennett as the knowledgeable practitioner and the Hartley study as the something debunked in this drama, who played the established media outlet which should have asked the tough questions but didn't? Scott Greenfield filled-in that blank for us:

[T]he same study is presented to lawyers via the American Bar Association Journal, the house organ of that most august of legal institutions. The headline reads, Public Defenders Often are Just as Effective as Private Counsel, Study Says. The accompanying story, just a blurb really, offers some spurious disconnected results.

....

The internet is a veritable cornucopia of information. Some of it is just horrendously bad, and often dangerously so. Bennett's discussion of this study added value, incisive analysis of a study that was doomed ab inito to serve any viable purpose by its inability to take into account the myriad factors that exist in the real world, as well as the author's ignorance of the system.

Juxtapose the ABA Journal's treatment, which serves to make its reader more ignorant by having fed them snippets of the study without any critical thought whatsoever. Their readers walk away with misinformation from which to guide their decisions, courtesy of the ABA Journal. This subtracts value from the internet by feeding people something that can only cause harm by promoting ill-founded notions.

....

Instead, a silly study with some very dangerous conclusions made headlines at the ABA Journal, and lawyers and defendants who read it will be worse for it. After all, if the ABA Journal, the house organ of the august American Bar Association, says so, it must be true.

Brian Tannebaum began his career as a public defender before making the transition to private defense work. Though he didn't weigh-in on the Hartley study or Bennett's and Greenfield's comments on it, he wrote about the "core" of a criminal defense lawyer, regardless whether a public defender or private counsel:

[I]f I ever get to the point where I don't have to work anymore, I may consider going back to that life of being a public defender. I loved it, I just became bored and wanted to handle other types of criminal cases, do federal work, and have the luxury not to have 150 cases.

But lately I walk into a courtroom. I stand in the well and I look at that same jury box, with (some of) those same inmates.

I think they look at me differently these days. maybe its the suit, maybe it's the one file in my hands, maybe it's the way the judge greets me as opposed to "go talk to your client," or "have you made these plea offers yet?"

I think they know I'm not a public defender, and think (wrongfully) that my entrance into their case would be their ticket out of the system. I look at their tired eyes, their agitated faces, and I wonder if they think I'm some big shot private lawyer who has no use for them, or if they wish they could gather up some money to have a lawyer like me. A private lawyer. A "real" lawyer as they mistakenly think.

....

We criminal defense lawyers know too well about the poor client we were appointed to represent who gets convicted and sent to prison that says "thank you for fighting for me," and the private client who paid a fee, had his case dismissed, and wonders out loud why they ever needed a lawyer.

Responding at length to an anonymous commenter, Tannebaum summed-up the meaning of criminal defense as succinctly as I've heard it: "Rationalizations? I have none. I do what I do because I believe in the Constitution, I believe in this country, and I believe that anyone charged with a crime deserves a good defense...."

If there's a God, I thank Him for guys like that.

This past week, Mike Masnick and his colleagues at the Techdirt blog had a scare. No, not "scare"; what's the word I'm looking for? Oh, yes... "laugh". This particular laugh came at the expense of an English solicitor who'd be better-off reading Techdirt rather than attempting to shut it down. Masnick noted that while the site doesn't make a practice of outing everyone who sends them a legal threat, he was willing to do so in this instance:

The threats are quite incredible, demanding that we shut down the entire site of Techdirt, due to a comment (or, potentially, comments) that the client did not like.

....

Most importantly, this threat is coming from the UK, and the lawyers insist that they will take it to court in the UK. This makes it rather timely and newsworthy for an entirely different reason. Just a few weeks ago we wrote about the new SPEECH Act that was passed into law to protect against libel tourism. As the Congressional record shows, the law was specifically designed to protect US businesses from libel judgments that violate Section 230 -- and the bill's backers explicitly call out libel judgments made in the UK. In other words, the SPEECH Act explicitly protects us from exactly the sort of threat that these lawyers and their client are making against us:

The purpose of this provision is to ensure that libel tourists do not attempt to chill speech by suing a third-party interactive computer service, rather than the actual author of the offending statement.

In such circumstances, the service provider would likely take down the allegedly offending material rather than face a lawsuit. Providing immunity removes this unhealthy incentive to take down material under improper pressure.

Separate from the Section 230 defenses, we are also protected due to a lack of personal jurisdiction, which, again, is supported by the recently passed SPEECH Act. It is entirely possible that the lawyers were unaware of the SPEECH Act, but it does seem like a law firm making legal threats in a foreign country should be expected to have researched the legal barriers to making such a claim before using billable hours to make threats they cannot back up.

....

Thanks in part to the new law, we have no obligation to respond to Mr. Morris, his friend or the lawyers at Addlestone Keane, who (one would hope) will better advise their clients not to pursue such fruitless legal threats in the future. Should Mr. Morris and his solicitors decide that they wish to proceed with such a pointless and wasteful lawsuit against us, which will only serve to cost Mr. Morris significant legal sums with no hope of recovery, we will continue to report on it, safe in the knowledge that it has no bearing on us. The only potential issue I could foresee would be that any UK judgment against us could prevent me from traveling to the UK in the future, which would be unfortunate, as I have quite enjoyed past visits to the UK. But perhaps such ridiculous outcomes will help the UK realize that it's really about time to update its incredibly outdated libel laws and begin respecting free speech rights.

At the Popehat blog, Ken termed the SPEECH Act "a bulwark against buffoonish Brits":

[T]he Speech Act is an effective shield to prevent libel tourists from enforcing shitty foreign defamation laws against Americans. Hence countries that have terrible, censorious libel laws that encourage libel tourism, or have ambitions to police the internet by allowing foreign suits for things written on web sites hosted in the United States, will be thwarted — they’ll be left with a useless foreign judgment unenforceable against people in the United States.

....

Thanks to the SPEECH Act, Addlestone’s foolish threats are impotent. Even if he gets some pseudo-court in England to issue an injunction and damages award under the United Kingdom’s loathsome defamation law, he’ll never enforce it here. It will be, like Addlestone’s diploma, an expensive but ultimately pointless scrap of paper. A United States court will never enforce an injunction taking down an entire web site on the theory that a post was defamatory. A United States court will never enforce a defamation judgment premised on a statement by a commenter; that would violate Section 230.

A cautious lawyer, before sending such a strident threat, might have checked first to see if there had been any recent developments in the law governing perfection of foreign judgments, particularly because prior versions of the SPEECH Act have been floating about, well publicized, for some time.

As my friends (and a few "frends") know, I'm a sucker for a complicated trademark story, and the longer and more convoluted the better. Thus it was that I found myself engrossed this week by Ryan Giles' "Convoluted and Complicated History of the TROPICANA Hotel/Casino Trademark". He wrote:

What started out as a simple declaratory judgment action by the new owners of the Tropicana Las Vegas regarding their long-time right to use the name Tropicana in connection with the hotel/casino located at the intersection of Las Vegas Blvd. and Tropicana Avenue has recently expanded into a fight over actual ownership of the TROPICANA trademark. While the Las Vegas Sun published an succinct article last week... regarding the lawsuit filed in Delaware Bankruptcy Court by a group of companies lead by Carl Icahn's Tropicana Entertainment Inc. ... the actual factual circumstances giving rise to the instant dispute regarding ownership of the TROPICANA mark are interesting enough (and so amazingly convoluted) that I felt a more detailed discussion of the facts underlying the ownership dispute was merited – if anything to provide another illustration of how trademark rights are handled in the course of multiple large scale corporate transactions (including bankruptcy proceedings) and how certain things can (and indeed do) fall through the cracks.

Interesting, convoluted, and with multiple diagrams! If you make it through the whole thing, you'll get comped at the breakfast buffet and receive a free spin on the money wheel.

Over the next few weeks, hopeful (if apprehensive) 1Ls will enter the hallowed halls of law schools across the country and begin accumulating crippling student debts which will haunt them for decades after they graduate and manage to find a job somewhere other than in legal practice. Rather than advising them to cut their losses and leave law school now, as most of us would have, Elie Mystal offered those 1Ls a bit of constructive criticism:

[T]he time for being a passive participant in your own education is at an end. If you think that you can be ready to function as a good attorney by going to class, preparing for panel, and writing your way on to law review, you’ve got your head up your ass. You said you wanted to go to law school, you said you wanted to learn — now you have to go out and make it happen for yourself. Nobody is going to give you a useful education (even though you’re paying through the nose for it); you have to go out and take it.

Paying more attention in Legal Research and Writing this fall than you do in something “law sounding” like Torts is a good start. When you have the opportunity, you should be taking every clinical program your school has to offer. But really, it’s about attitude and focus. Opportunities will present themselves to learn something about the actual practice of the law. If you go in with your head on a swivel looking for those opportunities, you’ll know to seize them when they present themselves. You’ll develop relationships with adjunct professors who actually have their own practices. If you spend three years looking to force your way into some practical knowledge, maybe you won’t be “worthless” when you graduate.

Or, you can sit back, dutifully learn whatever pet theories your professors have on contract law, and feel all warm and self-satisfied when you get an “A.” It’ll be fun. And three years later, the only thing you’ll be qualified to do is beg a private firm to pay you a salary while they actually teach you how to become a lawyer. Good luck with that.

Yes, good luck to you all. On The Paper Chase, Professor Kingsfield famously belittled series protagonist James Hart, telling him, "Mister Hart, here is a dime. Take it, call your mother, and tell her there is serious doubt about you ever becoming a lawyer." Things are not as bad for today's 1Ls, of course. Unlike students of Mr. Hart's era, today's law students have mobile phones and free internet calling at their disposal, so they needn't wait for an overbearing professor to spot them change for their call.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., explodingdog.com, Pittsburgh Post-Gazette, and Paris Odds n Ends Thrift Store.