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.
At times, the sounds of sirens in Tucson, Arizona this past Saturday were all but drowned-out by the noise generated by cable news commentary, partisan bickering, and angry recriminations from all quarters. The facts of the shootings of Congresswoman Gabrielle Giffords and others, to the extent those facts are yet known, need not be summarized here.
In the hours and days since the tragic event, many in the legal blogosphere have taken time to comment on various aspects of the debate and to weigh-in on the forthcoming criminal trial of the accused, Jared Loughner. Though I'll not try to gather a comprehensive, or even representative, collection of those posts, I'll offer a few here which (for me at least) stood-out amongst the chatter.
Killed in the attack on Representative Giffords was Federal Judge John Roll, the chief judge of the District of Arizona. In a pair of posts from Ashby Jones (see here and here), other Federal judges remembered a man reputed as "a conservative and even-handed jurist" who was "always fair-minded and absolutely attentive to everyone who appeared in his courtroom." Somewhat jarringly, they also demonstrated that it's never too soon after a judge is murdered to begin publicly fretting about the hassles involved in redistributing his caseload.
Several people distinguished themselves with quick-thinking and decisive actions to subdue the gunman, bringing the horrible incident to a close before there was further loss of life. Eric Turkewitz noted those heroes' names and added another — Loughner's new defense lawyer (and former Unabomber defense lawyer) Judy Clarke:
Why celebrate the defense lawyer? Because here is a person that will:A couple of legal bloggers commended John Green, the father of murdered nine-years-old Christina Green, for his measured and inspiring comments in the wake of his child's death; in speaking with media, Green said:
In other words, she and her team will voluntarily take on one of the crappiest jobs in America, and do so at great personal risk. Whatever personal risk may usually exist for the criminal defense bar — and it surely does for many who represent some tough characters with even tougher frenemies — it will likely be magnified a zillion-fold in a case like this.
- Represent a hated individual;
- Receive death threats from other wackos out there;
- Be outgunned by the Department of Justice;
- And move from a private practice in Southern California to Arizona in order to do it, and do it for public dollars as opposed to more lucrative private ones.
And since my personal definition of a hero is a person that sacrifices safety or comfort and goes to a place of danger, and does so for the benefit of others, then these defense lawyers will fit that bill.
This shouldn’t happen in this country, or anywhere else, but in a free society, we’re going to be subject to people like this. I prefer this to the alternative.Radley Balko wrote that Green "gets it":
After all the partisan, self-serving, asinine commentary of the last two days . . . bless John Green. What remarkable perspective, composure, and clear-thinking in the face of a grief that few of us can imagine.At the Popehat blog, Ken wrote of Green and his wife Roxanna:
It’s enough to restore one’s faith in humanity.
In their shoes, I would be railing against guns, against mental health laws, against politicians, against God, against anyone I could blame in any way, whatever my closely held beliefs before the tragedy. But John Green is a better man.There was only so much one could say about the human costs of this tragedy and much of the discussion this week necessarily concerned policies rather than people. To their discredit, many commentators on the left side of the political spectrum were quick to pin some measure of blame for the Tucson shootings on former Vice-Presidential candidate Sarah Palin, whose website had "targeted" Giffords' district during the election cycle. Elie Mystal was just as quick to dismiss such criticisms, laying sole blame for Loughner's acts on Loughner himself. Notwithstanding, Mystal suggested tightening gun laws in Arizona and across the country, and even considering repealing the Second Amendment, to prevent easy access to firearms for "unstable lunatics" like Loughner, or indeed anyone else:
So I’m going to say something that I haven’t heard for a long time, even from the left: maybe the Second Amendment is wrong. Maybe it hasn’t “lived,” and maybe it doesn’t need to be interpreted differently given our modern sensibilities. Maybe it’s just straight-out wrong. The Founders got a lot of things right, but maybe the whole “well-armed militia” thing was an overreaction to the bloody war for independence they had all just fought. Maybe a citizenry with easy access to firearms does more harm than good to our political discourse.Mike Sacks considered the consequences of Mystal's provacative suggestions and concluded that, in the very unlikely event that these were advanced as legislative changes or a Constitutional amendment, the effects would be disastrously counterproductive to the gun control cause:
Heck, it wouldn’t be the first thing that the Constitution got wrong. Trying asking a woman or a black person whether or not that document was perfect when it was first ratified. Or hell, just ask anybody who likes voting for their United States Senator if the Founders worked out all the kinks on their first try.
If we can’t live in a world where we have a Second Amendment and the ability to stop people like Jared Loughner from getting his hands on a firearm, then maybe we need to live in a world without the Second Amendment. I’ll take my chances with federal government rolling tanks into my neighborhood without having a well-armed militia to save me. In exchange, I’d just like to live in a world where I could go to a supermarket or a school or a political rally without fear that somebody is going to shoot up the place with weapons they legally obtained thanks to a right that made sense to people in the 1700s.
Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it. But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.For Brian Tannebaum, the weekend was "of the First (not Second) Amendment"; he wrote that the embarrassingly-misguided and appalling chatter of the cable news anchors, media talking heads, and assorted self-promoters was evidence of the strength of the First Amendment:
And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”
In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment. In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.
I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass. As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.
I saw little restraint. Actually, I saw one instance of restraint. FOX's Shepard Smith was hesitant to announce the name of a member of Congresswoman Gifford's staff because he wasn't assured the family knew of his death.Brian Cuban suggested, however, that public tolerance for broad First Amendment protections — for others' speech, mind you — was ebbing in the present climate:
Reporters and anchors have become creative in violating ethics at every instance in the race to be first. Over and over again we hear speculation in the form of non-speculation - "we have no evidence that this is terrorism." Ok, so why mention it? Because "terrorism" attracts viewers. Journalists guess how investigations will proceed, bring on psychiatrists to "evaluate" the suspect, and of course, bring on lawyers to discuss how "they" would handle the case from their TV studio stool.
All of this is ok. That's my point. This weekend was not about the Second Amendment.
I was embarrassed this weekend. I think some people in the media were as well, but their voices are being drowned out by talk of whether this is the fault of one person or another. The media has a way of moving on from mistakes, especially in these days of blaming others for your lack of ethics.
If anyone questioned the strength of the First Amendment, you saw it this weekend.
Outside of courtrooms and far away from 1st Amendment legal briefs, a post 9-11 and Nidal Malik Hasan society is becoming more thin skinned to veiled written threats that may have one time never made it to a jury but now are taken seriously and result in convictions even though there is no real imminent threat to the intended recipient or even to a general class of individuals. Prosecutors are getting convictions on web rants and internet threats in which ranters are left to wonder what went wrong while they do prison time and their appeal winds its way through the court thinking they had followed the “can’t touch me” 1st Amendment blueprint. As society becomes more fearful and tired of such internet vitriol the 1st Amendment becomes less of a Kryptonite shield and such arguments to a jury are more likely to fall of deaf ears. Times are changing. The 1st Amendment and the societal concept of “free speech” is changing with them.For now at least, the First Amendment remains in relatively good shape. Eugene Volokh explained that, though the details of these plans are spare at this point, many of the speech restrictions discussed by legislators in the immediate aftermath of the shootings would run afoul of current Constitutional law's "true threats" requirements. Nonetheless, he wrote that an angry Congress intent on "doing something" might find a Constitutional way to do so:
The one way Congress could broaden the ban on threats against Congressmen to match the ban on threats against the President is to cover all true threats, and not just true threats “transmit[ted] in interstate or foreign commerce.” The “commerce” requirement is not hard to satisfy — communications that are routed through computers in other states, for instance, would suffice — but it sometimes won’t be satisfied, for instance when they are made face-to-face or even in a purely intrastate telephone call. But all the supposedly threatening/inciting/menacing/violent/etc. speech that I’ve heard faulted in the Arizona incident went out across state lines. And I know of no evidence that purely intrastate threats against federal legislators are somehow a serious problem that is being inadequately dealt with under state law.Like many, I'm bothered by any calls — particularly in the days following a tragedy like this — to mandate more civil political discourse. Such restrictions diminish us and serve only those already in power. At times, I find myself at a loss for words to express my opposition to laws which mandate a loss of words. Thankfully, others are not so tongue-tied. Though he's not a legal blogger, because it so perfectly expresses what I can't, I'll highlight something Slate columnist Jack Shafer wrote this week:
Any call to cool "inflammatory" speech is a call to police all speech, and I can't think of anybody in government, politics, business, or the press that I would trust with that power. As Jonathan Rauch wrote brilliantly in Harper's in 1995, "The vocabulary of hate is potentially as rich as your dictionary, and all you do by banning language used by cretins is to let them decide what the rest of us may say." Rauch added, "Trap the racists and anti-Semites, and you lay a trap for me too. Hunt for them with eradication in your mind, and you have brought dissent itself within your sights."Discussing his frustrations with the injustices of the justice system, Rick Horowitz has occasionally written of the possibility that a "revolution" will be needed to correct this broken system and renew our society; after the events of this past weekend, he took pains to explain his position:
Our spirited political discourse, complete with name-calling, vilification—and, yes, violent imagery—is a good thing. Better that angry people unload their fury in public than let it fester and turn septic in private. The wicked direction the American debate often takes is not a sign of danger but of freedom. And I'll punch out the lights of anybody who tries to take it away from me.
I am, believe it or not, a sane person. I do not want people to die.Scott Greenfield also wrote that efforts to calm political speech are misguided:
I say this because I’ve written — and said — some provocative and even vitriolic things. Some people will consider a bit of what I say here, today, to be provocative, as well. People who either never read any other article of mine but this one will think, because I’m going to explain something rather than spit out a soundbite, that I’m in favor of violence in response to abuses by our government against its own people.
That is not true. Or maybe I have to be intellectually honest and say that I do not believe it is true, or that it is not quite true, or something along those lines.
I’ve written about that at greater length before, so I won’t go into it all again.
You see, right now, at this point in time, I absolutely do not favor violence in response to abuses by our government against its own people.
But I do believe it is sometimes a necessary response.
What a lot of people want — what I want — is to see the Constitution — not changed, and not just read, but followed. I want a government that recognizes that the ideals delineated in the Constitution have allowed this Nation — once-great — to survive for two-and-one-quarter centuries now. The recent reading of the Constitution by Congress is a good start. Reading the Constitution is something we should all do.
One of the things you’ll learn if you read the Constitution is that the government is supposed to have certain limited powers.
Right now, in the United States of America, our government has become overgrown…and overblown. This does not ensure domestic Tranquility; it sows domestic Discord. It certainly does not provide us with increasing Liberty.
We cannot ignore this.
One idea being floated is to create new federal crimes for threatening elected officials. From a security standpoint, this would facilitate protection by giving law enforcement a tool to pinch a potential attacker before the notion of an actual attack is even a twinkle in his eyes. But then again, rhetoric being what it is, much is said and written for impact, to make a point, to emphasize a belief and position, using words that might suggest a more radical approach in the real world when its purpose and intention is merely to persuade and inspire the slugs who occupy the easy chairs to get off their duff.Instead of speech restrictions, Greenfield suggested an alternative likely to do more good, perhaps less dramatically but with less destruction to our already-strained civic fabric:
But the potential new federal crime of Hyperbole in the First Degree serves less to identify those who might actually do harm than to stifle expression at the core of democracy. Words are necessary to convey messages, and they are often messy and over the top. It's not to say that inflammatory or vitriolic rhetoric is a joy of political expression, but that criminalizing it would be the death of political dissent.
We might end up with nicer, calmer politics, but at the expense of honest dissent. The use of subtle, nuanced discussion to make our positions clear, unfortunately, ended when William F. Buckley's Firing Line was canceled. Heck, he would have been forced to change the title of his show, given how it incites violence.
[T]he solution to stopping this violence isn't in criminalizing the world of the rest of us, or undermined basic tenets of democracy. How about identifying those with mental illness and providing them treatment? How about making sure that people whose minds struggle to function in a nonviolent way, who see harm as a viable means of expression, receive the care they desperately need?
Of course, it's hardly as bold a reaction to a terrible tragedy than, say, establishing a new congressional protection service, or passing a slew of laws criminalizing the use of words that could be misinterpreted to suggest radical change. But it might help to address the cause of the problem, and actually do some good in the process.
If we need to have a knee-jerk reaction to this tragedy, would it be so terrible to have one that actually did some good for people?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.The Fourth Amendment seems like such a lovely idea. How is it that such a succinct, eloquent statement of personal rights has become so consumed by exceptions as to lose its meaning? Fewer than six dozen words and there's hardly a one that the police and courts can stomach.
The latest indignity came this past week when the California Supreme Court decided People v. Diaz. Diaz was arrested after selling Ecstasy to a police informant; his mobile phone was taken from him upon his arrest. Though the phone was no longer in Diaz' possession, meaning that he could no longer delete or alter any evidence contained in its memory, and no circumstances existed which prevented a warrant application from being sought, police searched the data contents of Diaz' phone without a warrant. Bending over backwards to justify the police's actions, the California court built upon earlier Fourth Amendment exceptions to establish a new one — until further notice, any data accessible on one's mobile phone is subject to warrantless search incident to arrest. Jacqui Cheng explained the result:
The court said that the phone was "immediately associated" with Diaz's person, and therefore the warrantless search was valid.Mike Masnick noted that bootstrapping this new exception onto older ones — such as those involving the contents of pockets in clothing or cigarette packages carried by arrestees — makes little sense, considering both the nature and extent of personal data contained on (and accessible through) modern smartphones:
The decision was not unanimous, though. "The potential intrusion on informational privacy involved in a police search of a person‟s mobile phone, smartphone or handheld computer is unique among searches of an arrestee's person and effects," Justices Kathryn Mickle Werdegar and Carlos Moreno wrote in dissent.
They went on to argue that the court majority's opinion would allow police "carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."
The judges' argument is based on the idea that current case law allows police to seize and examine anything they find on you -- such as your clothing or a cigarette package. Even if you accept that this is reasonable, to extend that to the contents of a mobile phone seems to be going too far. Similar to our concerns about border patrol being able to snoop through your laptop, accessing the contents of your mobile phone involves access to all sorts of private information. The issue is that the caselaw that the court used to make this ruling was based on stuff you actually chose to carry with you specifically. But, these days, with a smartphone that has access to the internet, and is basically a mini-computer, it's not like you specifically select which emails/browsing history/etc. to "take with you" when you go out. So assuming those things are fair game makes little sense. Indeed, a couple of judges on the panel dissented, noting how mobile phones were quite different.Sharon Nelson was one of very few bloggers I found who expressed no concerns about the ruling. She seemed to accept that this new exception flowed naturally from earlier "incident to arrest" exceptions; indeed, she suggested that much of the widespread commentary was prompted by incomplete reporting of the decision:
The story got a lot of play, largely because many media sources failed to include the fact of the arrest in their headlines so the viral tidal wave that followed was often based on a misconception that any kind of warrantless cell phone searches by police were permitted.Scott Greenfield attempted to pull us back up the slippery slope a bit, to better understand how, exception built upon exception, we managed to make our way from the Fourth Amendment as written to a state of affairs wherein the vast amount of data on our smartphones is now subject to warrantless searches:
One of the exceptions to the Fourth Amendment is a search incident to an arrest, where the search looks for weapons, means of escape or evidence of a crime. Law enforcement is permitted to search an arrestee's person as well as the area within the arrestee's immediate control. And yes, there is precedent that these searches can take place substantially after the arrest.
This is another instance of following the rubric while forgetting the rationale, the judicial road to perdition. Searching the contents of a pack of smokes as a search incident to arrest is justified under the notion that it could contain a weapon, such as a razor, or physical contraband, such as marijuana or cocaine, neither of which would do well to remain in the defendant's possession after arrest, nor returned to a defendant subsequently. It's not the firmest rationale around, but not entirely nonsensical. It's at least the natural offshoot of container searches.Kashmir Hill focused on the split which has now emerged between the state courts in California and Ohio, and predicted that this issue will someday reach the Supreme Court:
Of course, container searches, as part of a search incident, are a slide down the slippery slope, as a seized defendant, once separated from any container that might hold a weapon or contraband, no longer has access to it for use against a police officer. At that point, there is nothing to prevent police from obtaining a warrant at their leisure to search anything they have cause to search.
Container searches are nothing more than a shortcut to ease the burden of requiring a warrant. This is justified under the "easy button" clause of the 4th Amendment, a little appreciated, invisible portion of the text that says "no officer shall be required to obtain a warrant from a neutral magistrate when we all think it would be easier to just let them search what they want, knowing that they're going to do it anyway."
[T]he appropriate reaction to this plaintive post is that the rationale behind container searches, finding physical items before harm is done, doesn't apply to a device that can only contain digital evidence, and that the California Supreme Court's decision is a wrong application of the tech neutral doctrine. Had the court applied the doctrine properly, it could be argued, by returning to the rationale for container searches rather than knee-jerk employing the rubric that "containers = exception to warrant clause," we wouldn't be in this pickle.
While the point has some merit, it fails in light of legal experience. We start with The Rule, contained in the visible words of the Fourth Amendment. From there, a judicial eternity is spent chipping, chipping, chipping away at the rule, crafting exceptions to prevent the rule from applying in individual circumstances. Each time an exception is crafted, it's grafted onto the rule in the form of a rubric.
Courts love rubrics. They make for easy application, shorter opinions and a firm launching pad for the next extension of the exception. Baby steps, if you will. Given enough time, even baby steps cover a long stretch, until they've far outpaced the rule itself.
As a place to live, California has a lot going for it: the Pacific Ocean, pleasant weather, celeb spottings. But if you’re concerned about the police perusing the contents of your smartphone without a warrant, you might prefer to spend your time further east in the Buckeye state.Norm Pattis also discussed the likelihood that this issue will find its way to the High Court. He's not especially confident that the Court will see things differently than California's Supreme Court has, and suggested that decisions like these ensure that we "enjoy" the sort of government we consistently demand:
The Supreme Courts of California and Ohio have come down on opposite sides of the question of whether police need a warrant to search an arrested person’s cellphone. California may be perceived as the tech savvy state thanks to playing host to Silicon Valley, but when it comes to how the law applies to technology, its analysis is rather simplistic.
Ohio’s court, on the other hand, ruled in December 2009 that a cell phone is more like a laptop, holding vast amounts of personal information and thus subject to greater privacy protections — namely, a warrant for searching it.
As a California deputy attorney general notes in the San Francisco Chronicle, this may well head to the Supreme Court for resolution. The California judges in the majority are ready for that to happen. They ended their opinion [PDF] with a nod to the Nine: “[U]nder the United States Supreme Court’s binding precedent, the warrantless search of defendant’s cell phone was valid. If, as the dissent asserts, the wisdom of the high court’s decisions ‘must be newly evaluated’ in light of modern technology (dis. opn. of Werdegar, J., post, at p. 1), then that reevaluation must be undertaken by the high court itself.”
California from time to time tries to opt out of the republic. With an economy larger than that of many third world countries, the state's efforts to go its own way is perhaps understandable.With more and more conduct criminalized, police becoming increasingly belligerent and petty, and the courts ever-more-willing to sanction any governmental action, however unreasonable, I've calculated the possibility that one day I will be arrested for something. I put it somewhere beyond "possibility" and this side of "likelihood". I'm a generally law-abiding person, but I am also a rational person and the patchwork of laws and arbitrariness of police conduct with which we're all faced is irrational. Far from being a framework by which we can define and maintain civilization, the law has become a lottery in which none of us wants to be selected. I wonder if my day is coming.
The Diaz decision is not a frontal assault on the Fourth Amendment. It is something more dangerous, and more insidious: By expanding the scope of an exception to the requirement that police officers get a warrant before search our papers and effects, the high court engaged in the sort of judicial activism that neuters a key component of the Bill of Rights. Shame on Justices Chin, Kennard, Baxter, Corrigan and George.
This is a specious and threadbare decision devoid of any meaningful conception of the need to limit the police power of the state. It is what one would expect of elected justices in a state whose citizens think the end of combatting crime justifies the means.
Of course, there is no telling what the federal Supreme Court will make of this case. I fear it will endorse the California court's conservative judicial activism by blessing the expansion of this exception to the requirement that police officers get a warrant before searching our papers and effects. Indeed, I fear far more.
The seminal case regarding what limits are to be placed on police officers conducting searches arose in response to the search of a now-antiquated piece of technology: the pay phone situated in a phone booth. In the Katz decision, the Court held that in order for the Fourth Amendment to apply, a person had to assert a right to privacy that was both honestly held, and one that the rest of society was prepared to respect. Recall that the Fourth Amendment does not bar all searches, only unreasonable searches. In the case of phone booths, the court held there was no expectation of privacy society as a whole was prepared to respect, no matter what an individual caller expected.
It would be an easy matter to apply this sort of reasoning to cell phones, and I fear the Court may tilt in that direction when it decides Diaz.
My mobile phone has (for what it's worth) a password protecting it because the courts will not. If the police, not bothering to seek a warrant, want to know my password, I'll tell them it's 1-2-3-4-5 just to hear the inquiring officer exclaim that that's the combination to his luggage. When that password doesn't grant them access to all of the names, numbers, e-mails, and other data on my mobile, I expect that they'll make suffer for it in big ways and small.
It'll be worth it to speak Spaceballs to power.
As the bulk of my day-to-day work involves the drafting (and redrafting, ad nauseum) of contract language, I've found Ken Adams' guidance indispensable over the years, first at his Adams Drafting blog and more recently at The Koncise Drafter. This week, he discussed best practices for drafting indemnification clauses in nondisclosure agreements:
Indemnification can be helpful in two ways. First, it allows you to replace a regime of contract claims with something more customized. For example, indemnification can help a party more likely to be subject to a claim by allowing it to specify time limits for bringing claims and put caps on liability. Second, indemnification can help a party more likely to bring a claim by, among other things, allowing it to bring in deep pockets and allowing it to provide a remedy for losses caused by nonparties.Last week, Charon QC wrote a monumental Blawg Review focusing on legal blogging in the United Kingdom particularly. Those Brits are masters of the epic legal blogging round-up, it seems. This past week, Paul Hajeck offered an impressive survey of the state of affairs across the pond, collecting dozens of UK legal blogs. He wrote that in Britain, "legal blogging is slowly coming of age in a much wider business sense" and the review he offers supports that. Amongst the many blogs and bloggers linked are a number of my personal favorites (in addition to the aforementioned Charon), including David Allen Green, John Bolch, Carl Gardner, Brian Inkster, and BabyBarista (Tim Kevan).
I discussed the role of indemnification in [an] August 2009 AdamsDrafting blog post. What prompted me to write that post was the sense that drafters are too quick to throw indemnification provisions into a contract without considering whether a contract cause of action would be adequate.
That excessive use of indemnification may be what has prompted the resistance to indemnification that I’m now encountering. But I think we’re at risk of throwing the baby out with the bathwater. For example, it’s perhaps unhelpful to say that indemnification provisions don’t belong in confidentiality agreements. That’s like saying that representations don’t belong in confidentiality agreements. Instead, you have to look at how indemnification provisions are used.
Finally this week, Antonin Pribetic offered an impressive analysis of differing American and Canadian perspectives on international corporate liability issues. He remarked on Twitter that "tl;dr is an appropriate and welcome comment." "tl;dr" is internetese for "too long; didn't read"; in my case, "tl;tr;fm;si;fs" — "too long; tried reading; failed miserably; skimmed it; felt shame" — would be more apt. The interest was willing but the intellect was weak, as it were. Still, as I've followed various bloggers' ongoing discussions of human rights issues under Canadian law, I was glad for his explanation of the basis for their jurisdiction over such issues. Recently, Pribetic challenged his fellow Canadian legal bloggers to discuss international legal issues more frequently and substantively; he's certainly not shy to lead the way.
Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., MailOnline, Gizmodo, and Paris Odds n Ends Thrift Store.