Gone Fishing

A Round Tuit will return next week. Probably.

Image: "Gone Fishing" (Norman Rockwell; 1930)

TGIS: Thank God It's Schadenfreude! (292)... The Sequel!

This week's bonus joy in the misfortune of others comes courtesy of The Hillsboro Argus (via my mother!) (from Tuesday, October 19; link good at time of posting):

An erstwhile gold digger is in Washington County Jail after he was discovered trying to tunnel into the Rice Northwest Museum of Rocks and Minerals Oct. 14....

This camouflage outfit did not fool a police dog when the burglar wore it trying to hide outside the Rice Museum of Rocks and Minerals.

Museum Caretaker Linda Kepford said the attempted break-in was pretty much a non-event for staff, with no damages and nothing taken. Alarms set up by suspicious police the previous night to catch 36-year-old Gregory Liascos worked perfectly, summoning Washington County Sheriff’s Office deputies to the scene at 5 a.m.

But the media couldn’t ignore that suit.

Just minutes after the alarms, Beaverton police dog Barak... helped the deputies sniff out the Portland man lying on the ground near the museum. That’s right, lying on the ground, wearing a green, leafy full-body camouflage suit designed to help soldiers and hunters to hide in plain sight.

At first, the dog’s handler puzzled over why the animal was so interested in a piece of ground about a half a mile away from the building, but realized Liascos was hiding at his feet when the dog bit the ground and it cried out in pain.

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (292)

This week's joy in the misfortune of others comes courtesy of examiner.com (from Wednesday, October 20; link good at time of posting):

It's always hilarious when a security firm has its site hacked or has some other security-related SNAFU occur that you would think their own products could prevent. Such is the case with Kaspersky Labs, which recently saw its site not just hacked, but serving up malware.

Reports first came from users on Kaspersky's own support forums. The company initially denied the issue....

....

Kaspersky, however, finally 'fessed up.

....

Kaspersky said that the attack didn't expose customer data and that the exploit was contained quickly after it was discovered, which took some time, we assume, since they were initially denying it.

[Previous TGIS]

The Write Stuff

It'd be overstating things to suggest that Blawg Review is a literary endeavor. No, the carnival of legal blogging remains focused, well into its sixth year of existence, on gathering and showcasing the best legal blogging each week. That said, it would do a disservice to dismiss Blawg Review as just another collection of links. Though it's certainly not required — or even the norm, necessarily — for a blawg review to draw on great traditional or popular literary works or themes, the sizeable Blawg Review audience has always been very receptive to these and several such blawg reviews remain amongst the most memorable and popular.

Just ahead of this week's National Day on Writing, Blawg Review #286 (from "Piercie Shafton") highlights the literary art often displayed by blawg review hosts. In addition to those, highlights in this edition include explaining the troubles of the legal profession with a story, the importance of associating a real name with a story, and adapting real-world legal drama into a compelling big screen story.

Next week's Blawg Review #287 is a story in search of its author; if you're feeling literary, visit the Blawg Review site to learn about hosting and volunteer your services.

TGIS: Thank God It's Schadenfreude! (291)

This week's joy in the misfortune of others comes courtesy of the Austin American-Statesman (from Monday, October 11; link good at time of posting):

For the past few years, at least, officials in Atascosa County, south of San Antonio, have been sending out absentee ballot packages that include a page with a flag proudly displayed in a wavy motion.

The only trouble is, it's the Chilean flag, not the Texas flag. And it took a Ph.D. candidate to point it out.

Troy Knudson , who is studying in Japan and registered to vote in Atascosa County, was the first to notice the mistake and alert officials.

"Apparently the insert has been used for some time without anyone (voters and staff) noticing," he wrote in an e-mail. "I guess it's funny in some way, but my initial reaction was more disbelief that no one had noticed."

....

Janice Ruple , the elections administrator in Atascosa County, didn't see any humor in the mistake.

"I don't think it's funny," she said. "It's a serious thing."

Ruple blamed the woman who held the job before her for the flag mix-up. The previous elections chief couldn't be reached for comment.

Ruple has been on the job for three years.

[Previous TGIS]

A Round Tuit (47)

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.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Even hateful religions and speech deserve the protections of the First Amendment. From time to time, our Supreme Court is obliged to reiterate this; it seems that if there is indeed a God, He seems to delight in conceiving ever-more-hateful figures to test that noble proposition we know as the First Amendment.

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

Mike Sacks has been a diligent observer of not just the Supreme Court's arguments and decisions, but of the circus atmosphere which prevails outside the Court on argument days; he's not seen a circus like this one:

Snyder v. Phelps attracted more press and general public than I have seen in my time covering the Court. Granted, no abortion cases or Presidential elections have come up since I started F1@1F, but even last term’s campaign finance and gun rights blockbusters couldn’t compete with today’s scene.

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

....

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

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

Should the Court, as appears likely, hold its nose and side with the Phelps’s, then this case will stand for a principle older than the First Amendment and our Constitution itself: it’s always good to have a lawyer–or sixteen lawyers–in the family.

Lyle Denniston reported the case and suggested the possibility that emotion will play into the Court's decision:

When the Supreme Court meets in private Friday to discuss Snyder v. Phelps, a profound question will hang over the discussion: Should we — and can we — set aside our emotional reaction? If the answer, implicit or otherwise, is no, the Justices may then proceed to craft a way to write into the First Amendment a “funeral exception” to the right to speak out in public in outrageous and hurtful ways. It was apparent, throughout an hour of oral argument Wednesday, that emotion was more dominant than law, at least among most of the Justices. Perhaps typically, Justice Ruth Bader Ginsburg, who did seem to want to talk about legal principles, could not keep from pronouncing that “this is a case about exploiting a private family’s grief. Why should the First Amendment tolerate that?”

....

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

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

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

The Westboro Baptists’ lawyer — family member Margie J. Phelps, of Topeka, Kan. — wanted an equally simple constitutional line — fitting her version of the facts. Albert Snyder had intentionally turned his son’s funeral into a public media event and himself into a public advocate, the protesters showed up to debate him on the sins of America and the consequences, and so, to Phelps, the First Amendment provided the usual shield for speech on “matters of public concern.”

Emotion was certainly apparent in Tom Crane's personal take on the Phelps case and the difficulties the Court will likely face in reaching its decision:

I served in Iraq for a year and devoted 28 years of my life (mostly part-time as a Reservist) to the military. So, seeing signs like "Thank God for Dead Soldiers" at a funeral for a dead soldier angers me beyond belief. See news report. I cannot understand a church that openly, proudly protests at many, many funerals for service members killed in the two wars. I practice civil rights law, so have some understanding of civil rights. The First Amendment is a critical part of our laws and heritage.

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

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

....

I am sure the tiny Westboro Baptist church is concerned for their own safety. They may be the most unpopular church in America. In this case, I have to speak more as a former soldier. If they picketed the funeral of one of my soldiers, I would not wait for any lawsuit to take appropriate action.

In rounding-up the many, many articles and posts covering the Phelps arguments, James Bickford noted, "Few journalists cared to predict the outcome of the case, and several commented on the Court’s struggle to resolve the parties’ strong claims." Thankfully, a few legal bloggers are made of sterner stuff than those poltroons who call themselves "journalists". Calvin Massey offered a "rash prediction" (with just a tiny bit of reservation):

By a vote of 6-3 the Supreme Court will reverse the Fourth Circuit and remand for a new trial in accordance with the Court's opinion, authored by Justice Kennedy. The opinion will say that free speech principles do not limit the imposition of tort liability for intentional infliction of emotional distress where the victim is a private figure, the speech that is the basis for the tort liability invades the victim's reasonable expectation of tranquility at a moment of vulnerability, and the speech (taken as a whole and considered from the vantage point of a reasonably objective observer) is primarily directed at the victim in order to inflict emotional injury, even if it otherwise raises issues of public concern. Kennedy will be joined in the entirety of the opinion by Breyer, and Roberts, Scalia, Thomas, and Alito will either join in its entirety or concur in part and concur in the judgment. Ginsburg will dissent, joined by Sotomayor and Kagan.

If I am wrong, you may forget that you ever read this.

Jason Mazzone predicts a decision the other way, based on key factual weaknesses in the Petitioner's case:

Given all of this—that there was no interference with the funeral, that the service and burial proceeded as planned, that Albert Snyder was not impacted at the time of the funeral by the activities of the members of Phelps’s church, and that he was only later affected because he watched a news report and visited the church website—it seems to me inevitable that the Court will affirm the Fourth Circuit’s decision. The only real question here is whether in affirming the Court will suggest that although the First Amendment bars these kinds of tort claims it does allow for some governmental regulation of funeral pickets given the unique privacy concerns that funerals raise.

Deana Pollard Sacks discussed the delicate balancing act between protected speech and unprotected tort which Snyder v. Phelps represents for the Court:

The Snyder v. Phelps facts relating to the nature of the speech factor are mixed. The reason is that speech of genuine public concern was mixed with speech that targeted a private individual regarding facts of his private life in an apparent attempt to maximize Mr. Snyder’s emotional injury and unrest. The nature of the speech is thus split – it is partly speech of public concern and partly private information that does not concern the public, such as marital and child-rearing issues. To the extent that certain speech involved in the case was not of public concern, the Court should carefully identify that speech and explain why it was not of public concern, to avoid chilling speech of public concern. As argued below, this is probably unnecessary, as the other balancing factors mitigate toward a mid-level evidentiary standard for Mr. Snyder’s claims, even if the speech involved was entirely speech of public concern, as in Gertz v. Welch, in which the Court adopted a mid-level evidentiary standard.

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

The final balancing factor – the nature of the state’s interest in providing a tort remedy – is also mixed. On the one hand, cases such as Zacchini v. Scripps-Howard Broadcasting indicate that actual damages, as distinguished from reputation or emotional harm, means lost profits or other out-of-pocket damages. Although Mr. Snyder’s claims rest on emotional distress primarily, he also claims physical injury, which is the general distinction in tort law between actionable and non-actionable negligent infliction of emotional distress. In tort law, physical injury is considered distinct from pure mental distress for purposes of negligence-based liability similar to the way that the Court has distinguished reputation or emotional injury from actual damages in speech-tort cases. The state has a greater interest in protecting citizens’ physical health than their “feelings or reputation” just as the state has a greater interest in protecting against proprietary harm than emotional harm.

At the Popehat blog, Patrick attacked Phelps' position from a different angle, a religious one. He wrote that although Phelps fancies his teachings to be inspired by God and Jesus Christ, it was another Biblical figure — Pontius Pilate — whom he resembled more this week in that both "betrayed Jesus Christ in the name of the law":

Today Fred Phelps was handed an opportunity granted to few prophets and saints: to stand before Caesar himself, with all the world watching, and proclaim the good news and message of Jesus Christ. Phelps personally could have shouted at the Anti-Christ and proclaimed God’s hatred of fags, Jews, and America for thirty minutes.

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

I suspect that Phelps would dismiss Patrick's remarks as a predictable attack on him from a Papist website.

What hateful speech will next test our First Amendment resolve? Any suggestion at this point would be no more than a guess, but as other events reminded us this week, when the time comes there will surely be some grotesque and despicable person there to become the next test case. A case in point: Jennifer Petkov of Trenton, Michigan, who mounted a campaign of harassment against a woman, Laura Edwards, who recently died of Huntington's Disease, and now continues it against her seven-years-old daughter, Kathleen, also dying of that degenerative neurological condition. Petkov and her husband have photoshopped pictures of Laura Edwards in the arms of the Grim Reaper and her daughter's face over crossed bones; the Petkovs have also parked a truck decorated with coffins and labeled "Death Machine" in front of the girl's home. Interviewed by local reporters, Jennifer Petkov explained her harassment as arising from a dispute with the dying girl's grandmother. Jonathan Turley discussed the possible legal implications of the Petkovs' abhorrent actions:

One of most upsetting statements attributed to the Petkovs was their telling Kathleen directly “I can’t wait until you die.” Jennifer Petkov is quoted as admitting that she continued the campaign for “personal satisfaction” and “because it burns Rebecca Rose’s ass raw.” Rebecca Rose is the mother of Laura and grandmother of Kathleen.

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

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

....

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

The most obvious course for the Rose family would be a civil lawsuit for intentional infliction of emotional distress. There is probably not an action for privacy violations here, such as intrusion upon seclusion or public disclosure of embarrassing private acts. Likewise, words alone are generally insufficient for assault. However, what is fascinating about the case is Jennifer Petkov’s admission that she wanted to harm the Rose family in taking these actions.

Mike Cernovich reminded us that while the Petkovs may speak (more-or-less) freely, so can we; he posted their home address for our correspondence convenience. All in all, this week offered more than its share of reminders that the free speech rights we enjoy as Americans do not have an exception for ignorant and cruel (but "brutally honest") white trash. As Scott Greenfield put it, we'll continue "testing speech, one nutjob at a time":

[W]e rationally know that the Fred Phelps, the Jennifer Petkovs of the world are the testing grounds for speech, painful as it is. Worse still, we rationally know that there are plenty more where they come from.

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

....

It appears that the Michigan harassment statute addresses personal confrontation rather than intentional harm caused from a distance. The statute's definition of "stalking" may apply.

(d) “Stalking” means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

Whether Petkovs conduct meets the proscription is another matter. Whether the prohibition can constitutionally apply to this speech is yet another question.

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

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

Unfortunately a couple of weeks too late to trounce the competition in their "Legal Rebels" contest, the ABA Journal took notice of a firm full of legal innovators in South Carolina:

High-maintenance divorce clients may not want to hire the Pincus Family Law firm in Columbia, S.C.

The law firm takes work-life balance seriously, and it expects its clients to behave. The firm sets out the boundaries on its website under the heading “Client Expectations (Realistic or Unrealistic).”

Those expectations are worth reproducing at some length:

We do not work on the weekends and do not provide emergency numbers for the weekends. There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.

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

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

Attorneys work by appointments only. Please do not show up at our offices to speak with an attorney without an appointment.

On balance, Jim Calloway thought theeir effort to set client expectations was a worthwhile one:

I think one of the most important practices for lawyers is discussing client expectations and making sure that new clients have reasonable expectations. A client with unrealistic expectations is probably not going to end up as a happy client, no matter how good the results. Lawyers want to achieve good results and also produce satisfied clients who will return for more legal work in the future and perhaps refer other potential clients to the lawyer.

....

It seems like they have made a strategic decision to say "If you are going to a high maintenance client, you're probably not going to be happy with us and we're probably not going to be happy with you." Read it and judge for yourself. But one thing is certain. They have achieved the distinction of not having the same content of every other law firm's web site.

Dan Pinnington was more firmly in the fans' camp:

Wow! Have you ever seen anything like this on a law firm website before? You should read the entire expectations page. There is a fair bit of general advice about family law and litigating domestic disputes. This page clearly sets out the rules of engagement for the client if they are to retain the firm to act for them.

In his post Jim says, and I wholeheartedly agree with him, that one of the most critical things lawyers need to do at the start of a matter is discussing client expectations and making sure that new clients have reasonable expectations. This is one of the best things you can do to lessen your exposure to a malpractice claim (there is probably nothing better for lessening your risk of a claim). A client with unrealistic expectations is probably not going to end up as a happy client, no matter how good the results. Lawyers want to achieve good results and also produce satisfied clients who will return for more legal work in the future and perhaps refer other potential clients to the lawyer.

Though he thought the effort interesting, David Lat wasn't so sure about the resulting policy statement:

Managing expectations is a very important skill — when it comes to personal relationships, movie enjoyment, and, of course, dealing with your co-workers and clients.

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

....

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

....

...I personally find myself quite turned off — and I suspect others feel the same way. First, some folks... might say that lawyers should work weekends. Second, even if a lawyer doesn’t work weekends, should she really announce that fact so aggressively to her clients?

In an informal poll conducted at Above the Law, sentiment was generally more forgiving; only 12% considered the "we don't work weekends" manifesto to be inappropriate. Scott Greenfield labeled the South Carolina firm's statement "managing low expectations":

Blunt. Honest. Maybe they thought it best to remove the part about "just send money and leave us alone." The lawyers may not be long on client service, but at least they aren't hiding it from their potential clients.

....

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

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

....

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

But the "high maintenance" client is usually a client who has been oversold. The old adage, undersell and overdeliver, comes into play. When your clients know that you will contact them immediately upon any news in their case, they won't call you to ask if there's anything new. When your clients know that you return telephone calls as soon as possible, they won't call 10 times to try to reach you or scream at your receptionist when you're in court and unavailable. When you don't make outrageous promises that you can "fix" anything, they won't become equally outraged when it doesn't happen.

Carolyn Elefant agreed for the most part that the statement focused overmuch on what the lawyers wanted from their clients, with too little consideration for the realities of the professional relationship between them:

The first section of the Client Expectations section isn’t about clients, it’s all about the lawyers, all about we. The firm proclaims: We don’t work weekends, we make mistakes but don’t yell at us or insult us for making them, we take calls in the order they come according to the priority we assign, we are the only reliable source of information on your case – (but you’ll need to pay to get an update).

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

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

....

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

But the second set of expectations relate to what a client can reasonably expect from a lawyer: promptly returned phone calls, respectful treatment, dedication, diligence, honesty and integrity and overall excellence. In contrast to external matters like court schedules, how we serve our clients is a matter over which we have absolute control and as such, is not the type of expectation that ought to be managed or diminished. Rather, as lawyers, we must — and indeed, are obligated to — manage to live up to our clients’ expectations of us as their lawyers, every day of our practice. And if that means working weekends, then we need to manage to do that too.

Susan Cartier Liebel tried to recast the Expectations statement into something less off-putting, a policy which would make the firm "more attractive to the potential client by showing why the client achieves a tremendous value for ‘playing by the rules.’" It was a nice effort and I thought her statement was marginally less offensive than the original, but the problem isn't something she can solve with a rewrite.

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

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

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

Carl Gardner and Charon QC did an excellent podcast this week on an interesting topic — a proposal by Foreign Secretary William Hague to intended to "reaffirm once and for all the sovereignty of our ancient parliament" vis-à-vis EU rulemaking. The interview grew from an opinion piece which Gardner published at the Guardian's law site; there he wrote:

Parliamentary sovereignty – the right of parliament to make or unmake any law whatever, as the great Victorian constitutional lawyer AV Dicey put it, which obviously includes the right to unmake EU law in this country and take us out of Europe – is already the most fundamental unwritten rule of our constitution. Hague admitted as much yesterday, rightly telling his audience that EU law only applies here because parliament says so. He even conceded his clause would not change the legal relationship between the EU and the UK.

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

This legislation would be a pointless exercise at best, monkeying around with the essentials of the constitution for no better reason than political symbolism, yet also involving subtle legal perils. It ought to be avoided entirely. That it has been put forward by a Conservative is astonishing.

Gardner discussed the topic further at his own blog:

I’m amazed that the Conservatives of all people should have got themselves so muddled about the legal relationship between the UK and the EU, and about what Parliamentary sovereignty is, that their foreign secretary is putting forward legislation interfering with the absolute essence of our legal system, and arguably representing the biggest single step we’ve ever made towards a written constitution – something that’d be a historic mistake, and hardly a conservative move.

Questions concerning the sovereignty of national law amidst international rulemaking were also raised by the release of a near-final version of the Anti-Counterfeiting Trade Agreement (ACTA). Mike Masnick noted that the United States' ACTA negotiators have repeatedly assured us that ACTA would not conflict with American laws; nonetheless, he pointed to an analysis done by the Knowledge Ecology International organization which listed many such conflicts in the released draft. ACTA expert Michael Geist suggested that that draft posed less of a problem for our neighbors to the North and would not preclude a "made-in-Canada approach" to some key copyright issues. In another post, Geist described the latest ACTA draft as a "cave" by the U.S. on a number of the more draconian proposals we'd pushed throughout the secret negotiations:

One of the biggest stories over the three year negotiation of ACTA has been the willingness of the U.S. to cave on the Internet provisions. When it first proposed the chapter, the U.S. was seeking new intermediary liability requirements with three strikes and you're out used as an example of an appropriate policy as well as language that attempted to create a global DMCA. The draft released today is a far cry from that proposal with the intermediary liability provisions largely removed and the DMCA digital lock provisions much closer to the WIPO Internet treaty model. In its place, is a chapter that is best viewed as ACTA Ultra-Lite.

Nate Anderson also noted the (very welcome) set-back for the American negotiators:

Talk about a cave-in. The Anti-Counterfeiting Trade Agreement (ACTA) has been three years in the making, and at one point included language advocating "three strikes" regimes, ordering ISPs to develop anti-piracy plans, promoting tough DRM anticircumvention language, setting up a "takedown" notification system, and "secondary liability" for device makers. Europeans were demanding protection for their geographic marks (Champagne, etc). Other countries wanted patents in the mix.

That's all gone in today's release of the "near-final" ACTA text (PDF). US Trade Representative Ron Kirk, whose office negotiated the US side of the deal, issued a statement this morning about the "tremendous progress in the fight against counterfeiting and piracy," but the real story here is the tremendous climbdown by US negotiators, who have largely failed in their attempts to push the Digital Millenium Copyright Act (DMCA) onto the rest of the world.

Sean Flynn provided a very detailed analysis of the draft:

In general, the new ACTA text shows many signs of incorporating safeguards that have been long advocated by public interest voices. But the agreement contains many notable flaws, which have been flagged in previous drafts, that threaten fundamental rights and liberties, pose barriers to the free trade in legitimate medicines, export rights owner processes and protections without correlative protections for due process and the interests of users and consumers and conflict with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

The scope of the agreement is still incredibly broad. The criminal chapter has been narrowed to willful trademark counterfeiting and commercial scale copyright piracy. This is a welcome narrowing. But the entire agreement should be narrowed to these original intentions of the negotiation. Instead, many of the parties, with the EU in the apparent lead, have successfully included a great deal of language that extends to all conceivable intellectual property rights, including to patents, geographic indicators and to non-commercial copyright infringement (e.g. non-commercial file sharing).

Mike Masnick called the entire ACTA process a "travesty" in which we were all left in the dark and key stakeholders were purposely excluded from discussions:

While much of the worst of the document has been removed, the process by which this happened was hardly reasonable and open. Instead, it involved secrecy, misleading statements, ignoring important stakeholders until copies were leaked and concerned stakeholders shouted loud enough to be heard. As La Quadrature Du Net points out, this whole process was a counterfeit of democracy. Furthermore, this shows why all of the ACTA supporters, who insisted that people were making too big a deal about this, were flat-out wrong. There were some really, really bad things in ACTA initially, that appear to have only been removed due to loud protests from people who, otherwise, weren't supposed to even know what was in ACTA.

....

All in all, what we have here is a travesty of process. You had a bunch of industry stakeholders, who drove the process from the beginning, putting in extreme language and extreme ideas. Rather than having an open and honest discussion about these issues, and looking for consensus, negotiators chose to obfuscate, obscure and abstain from discussion. In the end, thanks to widespread public pressure and outcry -- including from elected officials around the world, negotiators clearly backed off many of the absolutely worst aspects of ACTA. But, remember, they started at one extreme, basically granting everything the industry stakeholders wanted, and then caved on pieces there, moving slowly back. So, the document still is based on the stakeholder's positions, with the changes being an attempt to appease everyone else. At no point was there an effort to build a document that actually recognized the rather legitimate interests of the public. And this is a shame.

The Foundation for a Free Information Infrastructure provided a detailed analysis of the criminal provisions in the ACTA draft. Though the ACTA's backers continue to emphasize that its criminal enforcement provisions are intended to apply only to "commercial scale" infringers, Masnick noted that the definition of what constitutes "commercial scale" has expanded remarkably during the negotiations:

[The EU Parliament's] definition of commercial scale... has important caveats not found in ACTA:

"infringements on a commercial scale" means any infringement of an intellectual property right committed to obtain a commercial advantage; this excludes acts carried out by private users for personal and not-for-profit purposes

Notice how the ACTA negotiators conveniently left out the exclusion at the end. So for all the talk of how the new ACTA would only focus on "commercial scale" infringement, by subtly changing (mostly via omission) the definition of "commercial scale," ACTA now covers an awful lot that most people would not, in fact, consider to be "commercial scale." We'll leave it as an exercise to the reader whether these omissions were done through incompetence or for other reasons.

Regardless your own conclusions as to our negotiators' motivations and intentions, we can all be somewhat relieved this week that their powers of persuasions are apparently so feeble.

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

Holiday Update: Out is in; explorers with poor navigational skills are out.

In this week's Blawg Review #285, Freedom to Differ's Peter Black commemorates National Coming Out Day, which for some reason is known in the United States and Canada as "Columbus Day" and "Thanksgiving Day" respectively. As Black explains:

National Coming Out Day was founded by Robert Eichberg, a founder of The Experience workshop, and National Gay Rights Advocates head Jean O'Leary during a 1988 meeting of LGBT activists as a day to celebrate coming out. The date of October 11 was chosen to mark the anniversary of the Second National March on Washington for Lesbian and Gay Rights, which had taken place four months earlier. National Coming Out Day is marked by events all over America, as well as in many other countries around the world, any countries, including Switzerland, Germany, Canada, Croatia, Poland, the Netherlands and the United Kingdom.

His focus this week is on legal blogs, bloggers, and posts which address LGBT issues; a particular highlight is a round-up of various posts concerning the recent suicide of American Tyler Clementi, after his college roommate broadcast video of his homosexual encounter. Though National Coming Out Day celebrates voluntary outing, this involuntary one has been the object of much commentary across the legal blogosphere for some time now.

Mister Thorne, whom I've had the pleasure to meet at a couple of legal blogging meet-ups, is scheduled to host next week's Blawg Review #286 at his set in style blog.

TGIS: Thank God It's Schadenfreude! (290)

This week's joy in the misfortune of others comes courtesy of the Telegraph (from Tuesday, October 5; link good at time of posting):

A genteel book launch party ended in chaos on Monday night following a theft, a ransom demand and the scrambling of a police helicopter.

A man gatecrashed the event held for Jonathan Franzen, stole the glasses that the best-selling author was wearing and left behind a demand for £100,000.

During his attempted escape the thief jumped into the Serpentine lake before being dragged out by police and arrested.

The novelist was standing outside the Serpentine Gallery in Hyde Park talking to guests at the party for his new novel Freedom when an assailant plucked the spectacles from his face and ran away leaving behind a demand for £100,000.

Following reports that he had jumped into the water nearby a police helicopter was called out to search for him.

Last night Franzen was being interviewed by police following the theft. He was described by onlookers as "extremely disgruntled".

[Previous TGIS]

A Round Tuit (46)

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.

It's October. The Mariners' bleak season has finally ended; the Seahawks' bleak season is yet to develop; my EPL fantasy soccer team is circling the bowl. No matter; the real games have finally begun.

The first Monday in October starts the Supreme Court's term and this term... will continue until the first Monday in October next year. That seems to be as much as the prognosticators can agree on, at least in the mainstream commentary I've seen over the past few days.

Fortunately, the legal blogosphere is generally a few cuts above the mainstream and it hasn't disappointed me this week — unlike the aforementioned Mariners, Seahawks, and EPL fantasy teams, but I digress.

Ashby Jones noted that his readership didn't need a reminder about the significance of the first Monday in October; he offered a round-up of some of the better mainstream press coverage of the new term, including articles on key cases and on the logistics of handling former Solicitor General Elena Kagan's elevation to Associate Justice. Bob Ambrogi and Craig Williams' long-running Lawyer2Lawyer podcast also took a look at the term ahead, focusing on a few of the more noteworthy cases the Court anticipates deciding during this coming year.

If there is a must-read source for information about the new term, it's certainly the much-redesigned SCOTUSblog site. Ahead of the opening day's arguments, James Bickford collected some excellent coverage and commentary, including a link to Nina Totenberg's interview with former Justice John Paul Stevens, who doesn't seem to regret his decision to trade his Supreme Court seat for a Barcalounger. The former Justice did admit one regret, however — his vote to uphold capital punishment in Gregg v. Georgia. As Mike Dorf explained, though, Stevens' regret is a nuanced one and might be somewhat misplaced:

In the interview with Totenberg, Stevens says that he expected that the sorts of factors upheld in Gregg would mean that only the worst of the worst would be executed, so that a death sentence would not be the sort of random lightning strike that Furman condemned. But, Stevens goes on to tell Totenberg, in the ensuing years the Court expanded the number of people eligible for the death penalty and otherwise changed the procedural law so that the assumptions underlying Gregg no longer held.

....It's not entirely clear that Stevens has this right. The pro-death-penalty wing of the Court has argued that the lightning-strike character of the death penalty is due to the self-contradictory nature of the Court's death-penalty jurisprudence: Furman and its progeny require that the sentencer's discretion be constrained by aggravating factors, but Lockett v. Ohio, Eddings v. Oklahoma, and their progeny require that the sentencer have discretion not to impose the death penalty based on non-enumerated mitigating factors. Stevens was in the majority in both Lockett and Eddings, and if those decisions are the source of the failure of the Gregg assumptions, then he shouldn't be blaming the rest of the Court. But it's also not clear that the tension between Furman and Lockett/Eddings is responsible for most of the mess....

Gideon had hoped that the Stevens-less Court might agree to hear Georgia death row inmate Jamie Ryan Weis' appeal, but the Court declined to do so:

Georgia’s Supreme Court, by a 4-3 vote, did not find any problem with Georgia’s public defender system or the lack of funding or the fact that his lawyers withdrew and a new set of lawyers asked not to be appointed or….sigh.

And now a system that provides little to no adequate representation to those charged with and convicted of the most serious crimes with the most serious attendant penalty receives no Federal review. SCOTUS just denied cert. No explanation, no dissents, nothing.The stench has spread to Washington.

For a while now I’ve argued that these individual claims in State courts in individual cases will do little to bring the issue of systemic failure into the spotlight. That the only way to adequately challenge the failure to provide counsel is through lawsuits against the State (and maybe this latest legislation will help do just that). With this latest rejection by SCOTUS, it seems that Jamie Weis (and others) may have run out of all other options.

Noted Supreme Court observer Mike Sacks probably sees as much of the justices during the term as do their own families. He was off to an enthusiastic if damp start this term, sharing the sidewalk outside the Court with many others, including "FedEx Operations Manager and self-professed C-SPAN junkie" Graham Blackman-Harris:

Forget doctoral students, forget stunt-bloggers, forget lawyers: Blackman-Harris truly embodies the civic passion so evident among the Court’s most ardent followers.

....

This year, he showed up on a crutch, hobbled by hip problems. “I was going to crawl if I had to,” he says.

His commitment to his visits for First Mondays and landmark arguments runs deeper than mere interest. For this man from Jersey, it’s personal. “This is my Court!” he exclaims as we enter the building.

Graham Blackman-Harris, in his deep devotion to the American idea, proves how inconsequential everyday setbacks like injury or inclement weather really are to the success of the American spirit. From the Founders scrapping the Articles of Confederation for the Constitution during a stiflingly hot Philadelphia summer to our first African-American President’s inauguration on a frostbitten Washington winter morning, we and our leaders push forward against the elements into each new chapter in our country’s history.

On Monday, the Court requested seven case opinions from the Solicitor General's office. As Lyle Denniston noted, seven opinions is an unusually large number of requests for the Court to make. Very diplomatically, he declined to point-out that this was particularly inconsiderate, as the Court poached Justice Kagan from the Solicitor General's office, leaving them just a bit short-handed. Denniston reported:

Showing an interest for the first time in a case involving claims of torture during the “war on terrorism,” the Supreme Court opened a new Term on Monday by asking the federal government to offer its views on lawsuits against private contractors who work overseas for the U.S. military. The new case involves former Iraqi civilian detainees who had been held at the notorious Abu Ghraib prison that the U.S. military operated in Baghdad during combat operations there.

....

Among the other six cases, the government is to make recommendations to the Court on two securities class-action cases, a case about attempted recovery of art work stolen by the Nazis during the Holocaust, a case on the validity under federal law of a prison grooming rule that may interfere with inmates’ religious practices, a case about remedies for a chronic shortage of railroad freight cars, and a river water allocation dispute among three states.

Denniston also previewed arguments in the much-anticipated case NASA v. Nelson. I'll admit that I was somewhat disappointed to discover that the Nelson in question was NASA contractor Robert Nelson rather than astronaut Tony Nelson and the matter involves neither a mysterious woman nor an antique bottle. Regardless, Denniston explained that the decision in NASA v. Nelson may determine the scope of our "informational privacy" right (and would do so without the recused Kagan):

The Supreme Court has recognized that the Constitution provides some protection for a right to keep private some personal information about one’s self — for example, medical information, financial matters, and sexual activity. But the Supreme Court has not closely focused on the scope of that right in 33 years. A case about the government’s power to seek access to some personal information, during a background employment or security check, puts the issue back before the Court — with the potential for a sweeping constitutional ruling, or a narrow one closely limited to specific facts.

....

Among the factors that could have contributed to the Court’s willingness to step in without hesitation, two stand out: first, the government’s argument that the Caltech employees had made a facial challenge — the kind of constitutional complaint that a majority of the present Court seeks to discourage, and, second, the strong words of the Ninth Circuit dissenters that the constitutional right of information privacy had been broadly expanded and expressing a need for the Supreme Court to impose some restraint on lower courts in this field.

....

[I]t would be unlikely for the Court to use this case to make sweeping pronouncements on the scope of the constitutional right of informational privacy. The case very likely can be decided without doing so — as the government has suggested. The government, though, has made a strong pitch to confine the informational privacy right to one focused on potential dissemination, not on collection, of sensitive private data. That, in itself, would be a broad ruling.

The prospect of a 4-4 split in the case does suggest that the Court may attempt to decide it on the narrowest possible ground, in order to draw the votes of a clear majority of the Justices in order to get a definitive result. Among the narrower approaches would be to focus upon the government’s powers as employer. It also could give its own narrower interpretation of the breadth of the inquiries NASA makes, suggesting — at least by implication — that perhaps the inquiries might be re-worded to have less scope. And, the Court might accept the government’s view that this lawsuit does, in fact, amount to a “facial challenge,” and send it back for a potential trial on an as-applied claim, confined to the JPL employees alone.

After yesterday's arguments, Denniston offered an early recap of the case's direction:

Many of the Justices spent serious efforts during the one-hour argument... trying to determine just what the Constitution might say about the government’s authority to ask probing questions about highly personal and private matters — at least when it is asking them as an actual or potential employer of the individual being asked those questions.

There were, however, two Justices not joining in that pursuit. Justice Scalia suggested that the effort was inherently flawed; he argued that the Constitution says nothing at all about that subject, and so any restraint should be left to legislators, not judges. No one shared that view. Justice Ruth Bader Ginsburg said the Court need not be making such a wide-ranging inquiry, since it was reviewing only a very specific and confined lower court decision restricting such questions. But most of the other Justices said — as Justice Samuel A. Alito, Jr., did at one point — that the Court had to have “some idea about either the existence or the contours” of the constitutional right in order to decide when it was violated by government inquiry.

The suicide of Rutgers freshman Tyler Clementi recently was a newsworthy tragedy as, frankly, many other young suicides and deaths aren't. I won't bother recounting all the public details of the events which preceded Clementi's jump to his death from the George Washington Bridge; they're public details after all, and if you're interested they're not particularly hard to find in any of the hundreds of news stories and posts discussing the suicide.

Kids without obvious talents or bright prospects, kids with drug problems or histories of legal troubles — those kids' deaths don't get the attention this young man's suicide did. For all the attention paid it, however, there seems to be much sympathy and little genuine understanding. Instead, an undeniable tragedy has become a platform for any number of generalized fears and causes du jour. He jumped because of bullying; we must prosecute his bullies and bullies everywhere. He jumped because he was bullied using newfangled technology; we must prosecute his cyberbullies and cyberbullies everywhere. He jumped because he feared being outed as gay; we must prosecute those who outed him and bemoan that our society is not more supportive of young gays. He was in college and something bad happened; colleges need to do more... something to prevent bad things from happening.

What characterized this tragedy more than anything else was the immediate and widespread vilification of the two classmates — Dharun Ravi and Molly Wei — who had the most direct involvement in the events which seemed to have the most immediate connection to Clementi's decision to jump. Yes, that's "seemed to" — no one really knows what prompted Clementi's decision. Collectively, we're unwilling to blame the young decedent for what is an inherently irrational, overwrought, and misguided choice, but unequivocally his choice; nevertheless, we have a need to blame and Ravi and Wei are handy targets.

Amongst the chorus of hyperbolic commentary, Elie Mystal did an admirable job of distilling a point which many others seemed to miss (probably willfully) — this may be a tragedy, a hurtful prank gone horribly wrong, but there's no crime here:

But here’s my question for all those who think Dharun Ravi committed a despicable act of bullying that should be punished to the full extent of the law: If Tyler Clementi hadn’t made the decision to take his own life, would anybody really care about the actions of Dharun Ravi? It’s not even clear that Ravi would have even been expelled from school, much less been charged with a crime punishable by up to five years in prison. This kind of stuff happens at college all the time, and the “but for” cause for this tragedy, if anything, is as much Clementi’s own decision as it is Ravi’s decision to spy on his roommate.

....

[T]here are all kinds of laws you can break on America’s college campuses where the administration generally “looks the other way,” and we are (generally) fine with it. Underage drinking happens at college, illicit drug use happens at college, indecent exposure is a tradition at some colleges. There are all kinds of stupid and generally illegal activities kids do when they show up on campus.

I’m not saying that Ravi shouldn’t be punished in some way; I’m saying that a college freshman invading the privacy of another college freshman is hardly breaking news.

What makes it “news” is that Clementi killed himself. That’s tragic. But that was also his choice. Lots of kids get humiliated their freshman year of college. When I was at school, a girl did really crappy on her first set of finals, went home, and threw herself in front of a subway. That was sad, but I didn’t hear anybody calling on the university to relax its grading standards so fewer people feel compelled to end it all.

The other aspect of this story that has captured national attention is the fact that Clementi was gay, and the tryst Ravi exposed was homosexual in nature. But I’ve yet to see compelling evidence that Ravi did this because his roommate was gay. We’ll probably never know whether or not Ravi would have recorded the session if his roommate was hooking up with a girl.

Absent evidence of hate or even malicious intent, all I see is an 18-year-old who pulled a prank on his new roommate. If we’re going to punish him, fine. But let’s punish him as an 18-year-old prankster, not as a monster who stood next to Tyler Clementi and harangued him into jumping off a bridge.

In a second post, Mystal was even more critical of the efforts to prosecute Wei, who it seems did nothing more (or at least not significantly more) than allow a friend to borrow her computer:

Prosecutors looking into Tyler Clementi suicide indicated yesterday that they might not be able to charge Dharun Ravi and Molly Wei with a hate crime. Middlesex County Prosecutor Bruce Kaplan told the Newark Star-Ledger that his office was trying to see if they could charge Ravi and Wei with a second degree bias crime, but so far they don’t have enough evidence to support such a charge.

Right now, Ravi and Wei are charged with invasion of privacy, which carries a maximum sentence of five years in jail.

Given that some people have pushed for prosecution that goes all the way up to homicide charges, the possibility that Ravi and Wei won’t be charged with a hate crime (or burned at the stake, or whatever the hell will satisfy people’s revenge impulse) will disappoint many — perhaps including prosecutor Kaplan, who said: “Sometimes the laws don’t always adequately address the situation. That may come to pass here.”

And sometimes the public’s outrage completely outstrips the actual crime committed.

Scott Greenfield noted the tendency of many in the blogosphere and elsewhere to capitalize on some aspect or another in the Clementi suicide to further their pet concerns:

The death of this young man is a tragedy. Whether this online airing of his private moment drove him to suicide, was the straw that broke the camel's back, somewhere in between or entirely unrelated, will never be known. The secret truth of Clementi's purpose died with him.

It's fair to assume that Clementi's sexual preference, that the video of his encounter with another man, was a significant motivating factor. To use this tragedy to urge and educate about tolerance and sensitivity toward gays presents no problem, regardless of whether it's an accurate assessment or not. This is a worthy goal regardless of what role sexual preference played in Clementi's decision.

But to use this as a call to action for a new crime or enhanced punishment is an abuse of this tragedy. The abuse of tragedy to further irrelevant agendas has become so common that we barely notice anymore. We're particularly blind when we happen to like the disconnected agenda, happy to see any outcome, no matter how tragic and irrelevant, used to further a cause in which we believe.

This tragedy has also been seized upon by applying the pejorative "bullying" to it, despite a near total absence of connection whatsoever. Bullying has become a trendy cause, both because it's a very real problem as well as a convenient shield to deflect criticism and responsibility, and a facile means to create victimhood whenever feelings are hurt. Vague notions like bullying, which are as easily derived from the sensibility of those hurt as those doing the hurting, have enormous potential for misuse.

Sure enough, within days, local politicians had leveraged Clementi's death and the public outcry to amend an existing cyberharassment law, broadening an already Constitutionally-problematic statute with even more questionable terms; Greenfield wrote:

But heck, Tyler Clementi is dead and we can't let that go to waste. Even though we still have no clue as to what really went through Tyler's mind, or Ravi's for that matter, the forces of disingenuity can't let a tragedy go to waste. They've got agendas to sell, and if they can find people stupid enough not to grasp their abuse of tragedy, they've got a winner on their hands.

Let's face it, when it comes to a tragedy like this, one that even touches vaguely related sacred cows, even relatively smart people jump on board, blinded by their adoration of underlying causes and happy to close their eyes to rational relationships. In other words, who cares if it makes any sense, as long as the spin serves your desired outcome.

Just wrap up your beef, your issue, your next petty offense, in a tragedy and a ribbon and only evil people could possibly oppose you. After all, we're just doing this for poor Tyler Clementi.

For Daniel Solove, the details we read about the events surrounding the Clementi suicide did not so much indicate an absence of (and need for) criminal penalties for similar situations as these showed a general lack of appreciation for the damage violations of privacy can cause:

What is clear is that this case illustrates that young people are not being taught how to use the Internet responsibly. Far too often, privacy invasions aren’t viewed as a serious harm. They are seen a joke, as something causing minor embarrassment. This view is buttressed by courts that routinely are dismissive of privacy harms. It continues to persist because few people ever instruct young people about how serious privacy invasions are. Another attitude that remains common is that the Internet is a radically-free zone, and people can say or post whatever they want with impunity.

But privacy is a serious matter. People are irreparably harmed by the disclosure of their personal data, their intimate moments, and their closely-held secrets. Free speech isn’t free. Freedom of speech is robust, but it is far from absolute. Today, everyone has a profound set of powers at their fingertips — the ability to capture information easily and disseminate it around the world in instant. These were powers only a privileged few used to have. But with power must come responsibility. Using the Internet isn’t an innocuous activity, but is a serious one, more akin to driving a car than to playing a video game. Young people need to be taught this. The consequences to themselves and others are quite grave.

Crista Livvechi also discussed the degradation of privacy and suggested that the consequences can be particularly dire for young people who are still discovering and are still uncertain about their sexuality:

Twenty or thirty years ago, those who were questioning, exploring, and experimenting had the ability to maintain their privacy. Not just because the technology we’re pointing our fingers at now didn’t exist then, but because there was a clearer sense of where the line between public and private actually was. New technologies are changing this, yes, but technology doesn’t exist in a vacuum.... [O]ur ideas about public and private have shifted. Slowly, we’ve allowed the private to become public.

....

If we want to prevent more suicides, if we really want to nurture and protect and welcome people into the queer community, we have to make a space that’s safe not just for those who know who they are, but for those who aren’t sure yet.

Mike Cernovich likened the public outcry over Clementi's suicide and the condemnation heaped on his roommate, Ravi, to the "Two Minute Hate" used by Big Brother and his Ingsoc party to keep the masses distracted and obedient; he wrote that it's time for us to disengage from the Two Minute Hate directed at Ravi and look inward instead:

We embarrassed and ridiculed people, or we joined the mobs in laughing at others unlike us. Fortunately our victims did not kill themselves.

What if they had? Would our pranks had taken on a greater moral significance? Must we measure a boy's conduct based on his motives, or upon the consequences?

Or should we stop looking at this boy?

The Two Minute Hate is powerful because it's a distraction. We look at others - Us and Them. They are evil, and as long we we stare at them, the law of Us and Them states that we are therefore good.

....

Do you speak out against bigotry? When people oppose gay marriage, do you remain silent and polite, like a passive-aggressive beta? When instead you should say, "Get the fuck out of here with that homophobic bullshit."

Most of us dare not offend, and so we tolerate the intolerable. We say that opposing equal rights for gay is a matter of "reasonable dispute." We say that not because it's true, but because we lack to courage to stand up against hate and bigotry. We use politeness as an excuse for cowardice.

When tolerating hate, we create a culture that leaves an 18-year-old boy fearing alone and afraid.

The UK's notoriously broad libel law will soon be tested by a well-known legal blogger and a controversial political commentator. Sally Bercow, the wife of the current Speaker of the House of Commons and a political candidate and commentator in her own right, was threatened with a libel claim after she criticized an anti-immigration study in a televised appearance. Sir Andrew Green, head of MigrationWatch, the group which authored the study (though not the Daily Express article to which Bercow referred directly), demanded that Bercow apologize publicly for referring to his group as "right-wing" (it claims to be non-partisan) and linking the ideas expressed in the article and study to Nazism and Fascism.

The Index on Censorship site described the comments which Green found objectionable:

Commenting on a Daily Express story migration and youth unemployment, Bercow said the article grossly oversimplified the migration debate, and that such oversimplification was “dangerous propaganda”. She claimed that arguments linking immigration to unemployment had been used by fascists such as Adolf Hitler and British Union of Fascists leader Oswald Mosley. The Express article had quoted figures from a MigrationWatch study.

Bercow did not mention Sir Andrew, and made just a single reference to MigrationWatch in the allegedly libellous comment.

Rather than issue the demanded apology and pay legal costs to avoid the libel case, Bercow retained David Allen Green, who writes at the Jack of Kent blog, and another attorney to contest the matter. Though Bercow is a somewhat divisive figure, observers on both ends of the political spectrum seem to acknowledge that her resistance to the MigrationWatch suit could be a much-needed test to curb Britain's "draconian" libel rules. The Heresy Corner blog wrote:

Not that I feel like defending the substance of her apparent remarks. Decrying anyone who questions the benefits of large-scale immigration as a right-wing extremist or Hitler fan is lazy and offensive. As a cheap debating point it's a wearingly familiar left-wing tactic. And of course it's Godwin's Law in action: when you start bringing up Hitler, it's frequently a sign you've run out of proper arguments.

Migration Watch is right to cry foul, and I can even sympathise with their frustration at hearing the accusation yet again, this time from the wife of the supposedly non-political speaker.... But to launch a libel action the basis of casual comments made during a little-watched newspaper review is ridiculous. For one thing, Mrs Bercow's comments were taken apart quite comprehensively by her fellow guest, Iain Dale, who made most of the points made by Migration Watch's solicitors. The group simply does not need to resort to the law to rebut the claims (which were, as Dale pointed out, "preposterous"). This action will very likely prove counter-productive, putting Migration Watch's sometimes questionable statistics under the microscope and drawing attention to the use made of their statistics by actual right-wing extremists.

Legal letters like this are basically attempts to extort money with menaces, the menace being the law of libel, which is draconian in fact but even more draconian in reputation. Lawyers calculate that recipients will be scared shitless by the prospect of a financially ruinous court action and meekly apologise. And pay the solicitors' generous "costs". More often than not, they do. It's a scam. And it's scandalous that the law continues to allow them to do so.

David Allen Green emphasized that he did not intend to try his case in the blogosphere, but took this occasion to discuss the need for libel reform:

The most depressing aspect about the predicament of free expression in the United Kingdom is not that for so many statements there is someone out there who wants to "ban" them but that there are so many officials and servants of the state - police officers, prosecutors, libel judges, district judges, ombudsmen - who will casually supercharge such illiberalism with the coercive force of law.

....

It would be ideal to have, at a stroke, the United States' First Amendment guarantee of free speech introduced into the United Kingdom. That is not, however, practical politics.

But our "banning" culture in respect of free expression is not inevitable and can be reversed; there is no good reason why the first reaction of so many people to unwelcome statements is to get the law involved, and then there is no good reason for so many police officers, judges, and officials to allow them to do so.


So the libel threat against Sally Bercow is, for me, another example of something which is horribly wrong in our political and legal culture.

When the nearby fire department — which has no obligation to serve you — offers to do so for a nominal amount, do you: a) pay said nominal amount and enjoy that peace of mind you wouldn't otherwise have; b) decline to pay said nominal amount and live with the consequences of your choice, come what may; or c) decline to pay said nominal amount, burn some crap in a couple of barrels in your backyard, set fire to your house, and complain to anyone who'll listen that the fire department wouldn't save your house even though they helped your more-responsible neighbor who'd paid the optional fee. Of course, the answer is "C"; this is America, after all. Orin Kerr reported this lesson in Personal Responsibility 101:

The 911 operator told [now-former homeowner Gene Cranick] that because he hadn’t paid the fee, the fire department would not respond. Cranick’s wife told the 911 operator that she would be willing to pay “whatever the cost” to hire the Fire Department to put out the fire, but was told that this was not an option. The Fire Department did not come out until the fire spread to a neighbor’s yard — the neighbor had paid the fee — and the firemen put out the neighbor’s fire but not Cranick’s.

According to press reports, the community is outraged that the Fire Department didn’t respond to Cranick’s call and save his house. But it seems to me that if you’re going to make an insurance program optional, the way to get the service is to pay the fee. It doesn’t make much sense to decline to pay for a service and then be upset when it isn’t provided to you.

Kerr noted a lively debate about this "Pay-to-Spray" fire department over at the conservative National Review's online site, The Corner. Daniel Foster seemed to put a lot of stock in the distressed wife's promise to pay "whatever the cost":

I have no problem with this kind of opt-in government in principle — especially in rural areas where individual need for government services and available infrastructure vary so widely. But forget the politics: what moral theory allows these firefighters (admittedly acting under orders) to watch this house burn to the ground when 1) they have already responded to the scene; 2) they have the means to stop it ready at hand; 3) they have a reasonable expectation to be compensated for their trouble?

The counterargument is, of course, that this kind of system only works if there are consequences for opting out. For the firefighters to have put out the blaze would have opened up a big moral hazard and generated a bunch of future free-riding — a lot like how the ban on denying coverage based on preexisting conditions, paired with penalties under the individual mandate that are lower than the going premiums, would lead to folks waiting until they got sick to buy insurance.

But that analogy is not quite apt. Mr. Cranick, who has learned an incredibly expensive lesson about risk, wasn’t offering to pay the $75 fee. He was offering to pay whatever it cost to put out the fire. If an uninsured man confronted with the pressing need for a heart transplant offered to pay a year in back-premiums to an insurer to cover the operation, you’d be right to laugh at him. But imagine if that man broke out his check book to pay for the whole shebang, and hospital administrators denied him the procedure to teach him a lesson.

Foster's colleague, Kevin Williamson, called him "100 percent wrong":

The city of South Fulton’s fire department, until a few years ago, would not respond to any fires outside of the city limits — which is to say, the city limited its jurisdiction to the city itself, and to city taxpayers. A reasonable position. Then, a few years ago, a fire broke out in a rural area that was not covered by the city fire department, and the city authorities felt bad about not being able to do anything to help. So they began to offer an opt-in service, for the very reasonable price of $75 a year. Which is to say: They greatly expanded the range of services they offer. The rural homeowners were, collectively, better off, rather than worse off. Before the opt-in program, they had no access to a fire department. Now they do.

And, for their trouble, the South Fulton fire department is being treated as though it has done something wrong, rather than having gone out of its way to make services available to people who did not have them before. The world is full of jerks, freeloaders, and ingrates — and the problems they create for themselves are their own.

Though they're in the right, to avoid this sort of public outcry in the future there will be tremendous pressure on the City to either discontinue its rural service and protect only its taxpayer community within City limits, or to quietly advise its firefighters to assist anyone who blurts-out an offer to pay "whatever the cost" and make a futile effort later to assess and collect those costs. Either way it'd be a loss for everyone except the least responsible in the area.

If rural fee-based service is discontinued, the responsible folks — like the Cranicks' neighbors in this instance — will be left unprotected; if the fee-based service regularly aids people who don't pay fees, there's no incentive to pay those optional fees and, naturally, those won't be paid. If the pay-for-spray fire department becomes a promise-to-pay-for-spray department, everyone will lose out. The department will spend its dwindling resources futilely attempting to collect the high real costs of firefighting from a few individuals rather than spreading these over a larger population base.

Admittedly, there's not much of a current legal angle to this story, apart from Orin Kerr's discussion of it. I expect that situations like these will arise more frequently, though, as cash-strapped municipalities shed many traditional government functions and focus on those constituencies which bear its costs through their taxes. Where, as here, a government has no obligation to act but contracts to do so, it should be expected to bear the obligations it takes on and to receive the benefits of its bargain. The liability issues associated with the devolvement of traditional government services and the rise of fee-based services remain to be sorted, of course.

As Kerr pointed-out, the citizens of the County could contract for City-provided fire coverage for its citizens and assess the costs as taxes; it's declined to do so thus far. Instead, the City has not only offered its services to those outside its limits but has gone further, actively encouraging people to sign up:

“We are a city fire department. We are responsible for the City of South Fulton and we offer a subscription (to rural residents). If they choose not to, we can’t make them,” [City Manager Jeff Vowell] said.

....

Vowell said people always think they will never be in a situation where they will need rural fire protection, but he said City of South Fulton personnel actually go above and beyond in trying to offer the service. He said the city mails out notices to customers in the specified rural coverage area, with coverage running from July 1 of one year to July 1 the next year.

At the end of the enrollment month of July, the city goes a step further and makes phone calls to rural residents who have not responded to the mail-out.

“These folks were called and notified,” Vowell said. “I want to make sure everybody has the opportunity to get it and be aware it’s available. It’s been there for 20 years, but it’s very important to follow up.”

Mayor [David] Crocker added, “It’s my understanding with talking with the firefighters that these folks had received their bill and they had also contacted them by phone.”

Frankly, in Obion County, Tennessee at least, I suspect that the problem of rural fire coverage is now a self-correcting one. I wonder how many people in the County — people who didn't sign-up for the longstanding South Fulton program despite the annual mailers and the follow-up phone calls — were at South Fulton City Hall soon after the Cranicks' fire with $75 checks in hand? More than a few, I'm guessing. I hope the rest never realize the consequences of their short-sightedness, just as I hope governments like the one in South Fulton don't accommodate it.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Imp Awards, Photobucket.com, and Paris Odds n Ends Thrift Store.