27 July 2011

A Round Tuit (63)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.


Skullduggery and internet celebrity made for a heady combination this past week when it was revealed that Aaron Swartz, who had a hand in authoring the RSS specification and building Reddit by the age of twenty, had surreptitiously downloaded millions of documents from the JSTOR academic publications archive. The story was notable not only because of the individual involved or for the size of the haul, but also for the means used — breaking-into an MIT network closet and "hard-wiring" unauthorized computers and hard drives into the university's network — and for federal prosecutors' reaction (or overreaction) to his acts.

Initially, Swartz registered an account on the MIT network using a false name; from that account, he ran a script which began mass-downloading articles from JSTOR. When JSTOR blocked his access, it is alleged that Swartz escalated his efforts. Timothy Lee described the facts alleged in the criminal complaint against Swartz:
[T]here followed a game of cat and mouse in which Swartz repeatedly changed his IP and MAC address to evade JSTOR and MIT's efforts to block access. Swartz also bought a second laptop to speed up the downloading process. Finally, on October 9, JSTOR gave up and and blocked the entire MIT campus from using JSTOR.

When JSTOR lifted the block a few weeks later, Swartz started using his downloading script once again.... This time, he entered an MIT network closet, "hard-wired into the network and assigned himself two IP addresses. He hid the Acer laptop and a succession of external storage drives under a box in the closet, so that they would not be obvious to anyone who might enter the closet."

Swartz entered the networking closet for the last time in January. The complaint describes the scene: "As Swartz entered the wiring closet, he held his bicycle helmet like a mask to shield his face, looking through ventilation holes in the helmet. Swartz then removed his computer equipment from the closet, put it in his backpack, and left, again masking his face with the bicycle helmet before peering through a crack in the double doors and cautiously stepping out."
In a second post, Lee criticized Swartz' "reckless activism" as counterproductive to his objective — to bring greater transparency to government and the law:
[W]alking into someone’s networking closet and hooking your equipment up to a switch without permission is almost never OK, and it’s definitely not OK if the objective is to evade the network owner’s previous attempts to block you from the network. The conflict between Aaron and JSTOR led to the entire MIT campus being cut off from JSTOR access for several days, doubtless affecting the productivity of hundreds of MIT scholars.

But the more lasting cost of Aaron’s actions will likely be to the reputation of the open access movement. Open access advocates have the natural high ground and are gradually winning the debate over the future of academic publishing. Change comes slowly, but things have been changing. Aaron’s actions are likely to slow that progress by allowing the bad guys to lump open access advocates in with malicious clowns like LulzSec. The incident makes JSTOR look like an injured, even magnanimous, party and gives them an excuse to make their policies more restrictive.
Swartz was previously implicated in a mass-downloading of documents from the PACER legal database. In that instance, federal authorities did not charge him with criminal wrongdoing; though she believes that he should not have been charged in this instance either, Katherine Mangu-Ward noted the difference in character — if not in substance — between the two data grabs:
Swartz had to sneak in and out of server closets to do the JSTOR scraping, which makes the whole thing seem seedier and more illegal. But the differences between the PACER grab and the JSTOR grab are less about how he got the data than what kind of data it was, and what he did with it. In both cases, he seems to have done little more than violate the sites' Terms of Service to get the docs....
Max Kennerly attempted to deconstruct the charges against Swartz and concluded that the prosecution amounted to "a civil claim that some overly aggressive prosecutor is trying to dress up as a federal crime":
I don’t see what societal interest [prosecutor] Carmen Ortiz think she’s vindicating with the Swartz indictment. According to Demand Progress, JSTOR already settled their claims with him. What more needs to be done here? The “criminal violation” here arises not from any social duty — like, you know, our society’s communal prohibition on murder — but rather from Swartz “exceeding the authorization” imposed by JSTOR on its servers.


The 18 U.S.C. § 1030(a)(4) claim requires the prosecutor show Swartz “knowingly and with intent to defraud, accesse[d] a protected computer without authorization, or exceed[ed] authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value.” The indictment claims the papers were “things of value,” but they’ve got the same problem: no intent to defraud.


The 18 U.S.C. § 1030(a)(5)(B) claim requires the prosecutor show Swartz “recklessly cause[d] damage.” The CFAA defines “damage” as “any impairment to the integrity or availability of data, a program, a system, or information” 18 U.S.C. §§ 1030(e)(8).... [S]ome District Courts have imposed an “actual impairment” requirement, reasoning that Congress did not intend to create liability except where the “damage” to the system was concrete and verifiable. Id. at 1116–1117. The problem for the prosecutor is if Demand Progress is correct that JSTOR “explained they’ve suffered no loss or damage.” If so, then this claim is likely dead, too.

The 18 U.S.C. § 1030(a)(2) claim is probably their best bet. That just requires that Swartz “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer.” Most every computer on the internet is a “protected computer,” so they might have something there.

Except that “exceeds authorized access” isn’t necessarily the same thing as “more than JSTOR wanted.”


The indictment says the Swartz used throw-away email addresses, automated download scripts, IP spoofing, and MAC-address spoofing. Big deal: there’s no dispute that Swartz was permitted to access the information in question.
I'm certainly not an expert on federal criminal law generally or these statutes particularly, but this all seems to rely on a number of assumptions and to downplay a few key facts. First, Kennerly accepts Swartz' assertions that no fraud was intended and discounts the complaint's characterization of the copied information as "things of value". Neither is necessarily correct. In mass-copying the JSTOR-maintained articles, Swartz' primary objective seems to have been to "free" the information for much wider user; to do that, he sought to deprive JSTOR of the revenues they were entitled to receive. Even if one dismisses the value of the information itself, those revenues certainly seem to qualify as value.

Second, though neither JSTOR nor MIT seem to have suffered any loss of data (Swartz only copied), there was an actual impairment — MIT and its students and academics were cut-off from JSTOR for several weeks. One could argue that it was JSTOR which impaired MIT's access in its effort to stem the mass-copying, but to dismiss that outage out-of-hand seems to overlook a key fact in the case. I'm not sure what the context of JSTOR's "no loss or damage" statement was, but it seems noteworthy that it's offered secondhand, via Swartz' own advocacy group, Demand Progress. It's entirely possible that JSTOR was merely confirming that its database and systems remained intact after Swartz' acts, and was not referring to its lost revenues.

Finally, while Kennerly notes several of Swartz' acts, he dismisses these as not any "big deal". In isolation, each of these might indeed be inconsequential, but collectively these are all parts of a well-orchestrated effort. In discussing unauthorized access, to focus on the fact that anyone on the MIT network could access any of the articles in the JSTOR database misses the larger issue that the means of Swartz' access were pretty extraordinary — he harvested huge portions of that data with multiple computers and scripts and broke into a secured facility to do it. I don't see how any of that could be considered within even the broad access allowed by MIT and JSTOR.

In fairness, despite the length of Kennerly's post, a blog post by its nature necessarily tends to simplify complex arguments; there is likely more to his arguments and to the applicable law than I'm reading. Notwithstanding my criticisms, I generally agree with his conclusion — that this prosecution is misconceived and disproportionate to the harms allegedly caused. Brett Trout is, like Kennerly and myself, bothered by this prosecution. He discussed why it serves no worthy purpose and, corrupt or not, is a misuse of prosecutorial authority:
Criminals commit hundreds of cybercrimes daily, many involving the loss of hundreds of thousands of dollars. Why is the government going after a case involving an academic, involving what appears to be nothing more than speculative damages? According to Swartz’s website, he downloaded the materials to investigate the source of funding for the academic papers. Swartz authored numerous articles investigating the “corrupting influence of big money on institutions, including nonprofits, the media, politics and public opinion.” Knowing that a study was financed by a large entity seeking to sway legislation, would certainly be of interest in weighing the study’s merits. The fact that funding sources may not be readily apparent, may have even more impact on the study’s credibility. Exposing funding sources is, from the public’s perspective, a laudable endeavor.

My own experience requesting the federal government to pursue alleged corporate espionage, lead me to believe the agents handling cybercrime matters did not have much interest in pursuing a criminal case, even where hundreds of thousands of dollars in damages were involved. Why single out Swartz? Swartz’s history of investigating corruption may not have played a role in his indictment, but misconduct by federal prosecutors is not unknown, and they are very rarely held accountable for their misdeeds. Are the federal prosecutors in Swartz’s case corrupt? Unlikely. More likely, prosecutors are doing what they are told, prosecuting the case assigned. The real question is who ultimately decided to redirect vast taxpayer resources to this particular academic, and why? The benefit to JSTOR and the in terrorem benefit to the corporations funding the studies is obvious; the benefit to the American taxpayer is unclear.
Prosecution or persecution, David Fagundes suggested that the government, in allying with the content industry, has come to regard physical and intellectual property as the same, without regard to the fact that the latter can, as in this instance, be non-destructively copied. Whatever the merits of such a stance, he wrote that with prosecutions like Swartz', the government isn't winning the hearts and minds of the general public:
The Swartz arrest is just one in a series of episodes that emblematize the growing rift between content industries (who push for, and usually get, legislation expanding and protecting their rights) and groups concerned about internet freedom (who almost always manage to stay a step ahead of attempts by industry and government to create free access to content). Part of this rift is a war of words—are the Aaron Swartzes of the world dirty thieves or valiant freedom fighters?—but this war of words affects social norms about the morality of intellectual property. However much government and industry may win legislative battles, these wins may be hollow if they don’t convince the general population that infringement (or, in the Swartz case, other information fraud crimes) are morally important.
Gideon characterized the case as "the new Lori Drew", referring to a 2008 prosecution founded in part upon the defendant's creation of false credentials on MySpace, in violation of that site's terms of service. He wrote:
While the event was tragic, a crime it was not.

And here we have essentially the same dilemma. Just how do the Feds have jurisdiction? Swartz was in the JSTOR building while he was “hacking”. It’s like me stealing from your house and being indicted for wire fraud because I took this nice vase that your Aunt Maude sent you from her old person’s home in Peoria.
I think that's reaching a bit. In the Drew case, the violation of the terms of service — her "unauthorized access" to MySpace — was incidental to the acts which led to a tragic result; prosecutors, stretching to find any way to charge her seized upon those terms to try to create something from nothing. Here, the unauthorized access was much more egregious and is instrumental to the crimes charged. Perhaps it's just a matter of degree, but I don't feel that this is as unsupportable as the Drew prosecution was.

Scott Greenfield discussed why he believes the charges have some merit but the prosecution is nonetheless inappropriate:
According to the indictment, the plan was to download whatever he could get his hands on so that they could be offered free to the world. Swartz would take what JSTOR had to sell and give it to all. Robin Hood of the internet.

From the technical point of view, this is a classic, straightforward violation of the Computer Fraud and Abuse Act, 18 USC 1030, with the fact that he had to physically sneak into a closet to gain access to the wires. Ordinarily, there's no need to physically break in to manage to digitally break in, putting an IRL cherry on top of the prosecution's case.


Assuming the facts as related are accurate, there is little doubt that Swartz was a very bad boy, and that his conduct was precisely what the CFAA was intended to criminalize. That some hold dear the belief that theft that doesn't deprive someone of physical possession isn't really theft can dispute the merit of the CFAA all they want, but had Swartz gotten away with it, he would have deprived JSTOR the revenue it would earn from its service. That's real.


By no stretch of the imagination do I believe that Swartz's attempt to download the JSTOR content was acceptable or lawful. He's no Robin Hood, and the ideologue's belief that digital content should be free for the taking is nothing more than religious pap, a belief that fails to bear out under rational scrutiny.

At the same time, this prosecution seems to be nothing more than a vindictive act by the government, given JSTOR's agnostic, at worst, stance toward Swartz. They worked it out and the story should have been over. It's just that the government can't let it go, given that they finally have a case against a targeted individual. Vindictive prosecution, no matter what the underlying wrong, is a due process violation.
Greenfield suggested that that vindictiveness stems from Swartz' earlier, unpunished mass-copying from the PACER database. As I read commentary on this case this past week, several writers attempted to find a more benign explanation for prosecutors' different treatment of the two matters; some speculated that the contents of the two databases somehow mattered to them. Whereas PACER contains public domain legal documents, the contents of the JSTOR database includes numerous copyrighted works (although the various authors, rather than JSTOR, would own those copyrights). Personally, I don't think that that's either a relevant difference or the explanation for the decision to prosecute Swartz this time around. Whether it's vindictiveness or merely part of a broader trend of overprosecution of relatively inconsequential offenses, I think it's giving the feds too much credit to presume that their decision was so nuanced.

Although he doesn't suggest that the copyright distinction between PACER and JSTOR accounts for the decision to prosecute Swartz, Mike Masnick wrote that copyright is conspicuous by its absence in the complaint:
It's a standard claim from copyright maximalists that downloading anything without permission is "theft," even though the law is clear that infringement and theft are two different things. But... in reading and discussing this, we missed out on one very important point, that Mike Wokasch spotted: with all the things in the indictment, one thing that's missing is any copyright infringement claim. If you're going to talk up the "theft" angle, why not at least include a copyright infringement claim? Perhaps it's because the government knows that it would lose on that claim badly. Once you're on the MIT network, you are allowed to download these works. Thus, there's no infringement at all. That's a big problem for much of the case against Swartz, but the feds seem to think they can use the circumstantial evidence unrelated to the actual computer usage to convict Swartz by inference.
I think that there's something to this. Under copyright law (17 USC §101), "compilation" is defined as "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." I've never seen, much less used, JSTOR, so I can't suggest whether or not it "selects, coordinates, or arranges" academic articles sufficiently to merit copyright protection. I'll allow for the possibility that it does and that the government could take a hard look at whether Swartz infringed the database's copyright, regardless whether he infringed the copyrights of the articles he downloaded. Why then is there no mention of copyright in the complaint? This inquiring mind wants to know.

As Masnick noted in another post, in this ongoing struggle between copyright maximalists and minimalists, the maximalist-allied government might be facing a Pyrrhic victory with this prosecution. Responding to it, another activist has uploaded a quantity of public domain JSTOR contents, with a lengthy and persuasive explanation of his reasons for doing so:
If it's true that Aaron Swartz's foray into an MIT computer wiring closet was as part of a project to copy JSTOR research and upload it to file sharing sites for open access, then I imagine part of the government's rationale for going after him would be the hope that it would act as a deterrent against anyone else doing the same thing. Of course, as I've pointed out with the feds' attempt to arrest members of Anonymous, it seems likely that this move will backfire in a big bad way. All it does is draw much more attention to the original goal. Indeed, Adam points us to the news that a guy by the name of Greg Maxwell just released 33GB of JSTOR scientific papers via The Pirate Bay because of the indictment against Aaron.
And so the struggle continues....


When it comes to these posts, there seems to be no shortage of bad lawyering worth writing about once one gets around to it.

Scott Greenfield was unsparing in his criticism of Gerard Marrone, the defense attorney who withdrew this past week from his representation of accused murderer Levi Aron. Aron is charged with the shocking and gruesome murder of Leiby Kletzky earlier this month. In withdrawing, Marrone said that the allegations were "too horrific" and that he could not continue to represent Aron. Greenfield wrote:
No one could have forced Marrone to be Aron's lawyer, and few would blame him had he refused the case at the outset. Having undertaken the representation, however, his duty is to see it through. The time to make the decision of whether the crime is too distasteful is in the beginning, before signing on. Once in, there is no right to simply walk away when it becomes unpleasant. This is the life we chose. This is the path Marrone chose. It doesn't include an option of walking away whenever the mood strikes.

His explanation, however, emits an unpleasant odor, and I'm not buying. My guess is that he signed onto the case because in one respect, it's every unknown lawyer's dream, the high profile case that puts your name in all the papers and your face on every television screen. Oh, how lawyers want celebrity, and high profile cases are the only way to gain it.


Perhaps Marrone believes that by quitting, by burning his client in the process, by announcing to the world that he has a conscience and love for his own children, that he won't be permanently tarred by having stood next to Aron. Maybe he can salvage his reputation, his besmirched humanity, by spinning his withdrawal into a morality play. If so, this cynical effort won't work. No one cared about Marrone before his moment in the spotlight, and he'll be forgotten again soon enough.

In the bio on Marrone's website, he calls himself "Gerard 'No Fear' Marrone." He may wish that people think of him that way, but there will be one thing that will follow him, haunt him, for his decision to walk away from this defendant, charged with this horrific crime. It's that he's a quitter, that he cannot be relied upon to stand firm and fulfill the obligations he willingly took on, even though it means that he must steel himself to the challenge of representing the worst among us.
Rick Horowitz wrote about the duty of loyalty Marrone owed to his client:
[American Bar Association Model Rules of Professional Conduct] Rule 1.9 makes it clear that while some of a lawyer’s duties to his client may dissipate, or even disappear, with time, the duty of loyalty does not. Obviously, the duty to represent a client competently and zealously no longer exists once you cease to represent the client. The duty of loyalty, however, persists. In fact, as both Mark Bennett and Jeff Gamso point out [in discussing David Martin, who represented Cameron Todd Willingham], the duty of loyalty persists even beyond the death of the client!

The core of the American system of justice relies upon sound legal ethics. As I noted in my own comment on Scott’s blog post,
Look at any failure in the system and it is almost always traceable to an ethical failure on the part of a lawyer (defense or prosecution), judge, or juror.
Arguably the most important of these failures is the failure of duties of loyalty. Prosecutors owe a duty of loyalty, first to the Constitution and the laws and secondly to “the People” — frankly, I think there’s a built-in redundancy there. Judges, similarly, owe a duty of loyalty to the Constitution and the laws. Only the defense attorney’s duty differs: defense attorneys owe a specific duty of loyalty to specific individuals first — and to the court, the Constitution and the laws second (or third, or fourth, or ….).

By putting his own interests ahead of his client’s, Marrone has failed in his ethical obligations to all parties and to the American system of justice.
The unpleasant business of separating bad lawyers from the profession might see some questionable changes, in Iowa at least. Nathan Koppel reported that the state is considering a change whereby lawyers could avoid having their sanctions (and bad behavior) made public, in exchange for surrendering their licenses to practice:
The proposal makes a certain amount of sense in that state bars are notoriously understaffed, making it hard for state bars to vigilantly police lawyer misbehavior, particularly when it comes to more high-profile lawyers, who have the means to fight ethics investigations for years on end.

But the flip side is that consumers, particularly those shopping for a lawyer, have an interest in knowing about lawyers’ past ethics transgressions, at least those that have been conclusively established.


Mark Bowden, who oversees the discipline of physicians in Iowa, told the [Des Moines] Register that lawyer misconduct should not be kept secret. “I don’t know what they’re trying to achieve by that. Limit the notoriety of cases, I suppose,” Bowden said. “I would think they would have to make that information public.”
Larry Ribstein is, as most ethical lawyers probably will be, pretty nonplussed by this proposal and the prospect that this "sweep it under the rug" approach might catch on elsewhere. He suggested, however, that it isn't much worse than the current system and wrote about the "mirage of lawyer discipline":
The bottom line is that under the current setup, once you get your ticket of admission into the bar by graduating from an accredited law school and passing a bar exam you get a lifetime monopoly of purveying legal information with little scrutiny. Even if the Iowa proposal to trade transparency for speed can be defended by necessity, this necessity is itself created by the inherent inadequacy of state supervision of lawyers.

There is a better way. In Law’s Information Revolution... Bruce Kobayashi and I discuss potental reforms in lawyer regulation and intellectual property law to facilitate the sale of legal information. Among other things, we would let software practice law.


Some folks (mostly lawyers) would respond that markets would be inadequate to cope with the horror of “legal” advice rendered by non-lawyers. But can this really be worse than forcing all consumers of legal information to rely solely on a lawyer’s shingle behind which any sort of person may lurk?
One bad lawyer who will never be able slink-off into anonymity is Joseph Rakofsky. As George Wallace noted in his eighth round-up of Rakofsky v. Internet news and developments, Rakofsky has now progressed from incompetent lawyer to cautionary tale to Streisand Effect poster child to internet meme.

Unlike Rakofsky, there are some bad lawyers who will be missed. Well, one. Bad Lawyer announced the end of his widely-read namesake legal blog this past week. He wrote:
In the last two years I documented the course of my disciplinary process... my legal proceedings, my prison sentence for attempted tax evasion, my probation and finally my return to work. As I write I do not know if I will ever be reinstated as a lawyer. I don't want to be grandiose, but I did view the law as a calling, one that I often loved as an advocate, hated as a unwilling businessman, but was privileged to practice from November 1982 till December of 2009.


I liked "blawging" because it offered me a soapbox to try to be socially relevant despite my situation. You should never doubt that the stories I posted about "bad" lawyers, judges, doctors, drivers, parents, idiots, and morons--these stories, were always about ME. Likewise, I posted the occasional story about admirable persons in and out of the law, these were stories also about me, as well. Or rather, I should say the stories were about--who I aspire to be by the grace of God.

I have some other things, other projects, and a life with my family to live. I'm now letting go of the "past" absolutely.
He was a writer with a unique point-of-view on the profession and the justice system. I'll miss his voice and I'm not alone in that. Bruce Carton probably spoke for many when he wrote:
Bad Lawyer has been a consistent source of interesting and outrageous legal news for [Legal Blog Watch] and for the blogosphere over the past two years. Thank you, BL, for your work on the Bad Lawyer blog over these years and best of luck to you as you move on.
Scott Greenfield offered the most insightful tribute I read:
Having been around the blawgosphere for a while now, I've come to view it as largely destructive. Too many lawyers spreading too much misinformation sprinkled with self-aggrandizing pap. Some are too cynical. Some aren't cynical enough. Some reveal that they're not particularly bright, and most demonstrate a scary lack of grasp of the law. There's an awful lot of that, and the public's ignorance of the law is furthered by lawyers' ignorance of the law.

Very few have the guts to say things that are real for fear of offending someone, whether potential clients, their brethren or the powerful. When they do, it's the "approved" enemies, the ones who are universally despised on this side of the table. Bad Lawyer was astute in his observations and owed no one allegiance. He wasn't fishing for clients or trying to make himself look more palatable. There was no need for him to market himself, and no one's feelings to be spared. And yet he was mostly temperate in his commentary, unlike the lawyers with wild agendas molded from bizarre political beliefs.


It's time for Bad Lawyer to die. It's time for the man behind Bad Lawyer to live again.


For the multitude of lawyers who have come to the blawgosphere to claim their fame and glory, the young ones who think their naive thoughts are worthy of recognition, the old lawyers who think their experienced thoughts can be spun into new clients, the amorphous lawyers who have bought into the idea that this is what lawyers should be doing even though they have nothing to say and offer muddled views of the law because they don't care enough to write something thoughtful, or aren't good enough to do so, learn from Bad Lawyer.

Odds n Ends Shop

I'll finish this week's Round Tuit post with a few lighter posts discussing a happy coincidence, an unhappy but entertaining (melo)dramatic interlude, and a consideration of the Beautiful Game.

David Lat related a story told to him (and others) by Ninth Circuit Chief Judge Alex Kozinski:
As the immigration debate continues, let’s keep in mind the important contributions made to our nation by immigrants. For example, one of our most distinguished federal judges — Chief Judge Alex Kozinski, of U.S. Court of Appeals for the Ninth Circuit — is an immigrant. He was born in Bucharest, Romania, in 1950, and he immigrated to the United States with his family in 1962, at the age of 12.


Alexander Kozinski was naturalized in 1968, at the age of 18, by Judge Harry Pregerson — his future colleague on the Ninth Circuit.

In 1968, when he naturalized Alex Kozinski, Judge Pregerson was a district judge for the Central District of California (Los Angeles). In 1979, President Carter elevated Judge Pregerson to the Ninth Circuit.

In 1985, President Reagan appointed Alex Kozinski to the Ninth Circuit. At the tender age of 35, Judge Kozinski joined Judge Pregerson — the judge who naturalized him as a U.S. citizen, 17 years earlier — as a life-tenured judge on the nation’s largest federal appeals court.

Ain’t America grand? This is a wonderful immigrant success story.
Though I'm not a great fan of mediation, thankfully I've never had one like Popehat's Ken did recently. He memorialized his misadventure in a one-act play and it's well-worth a quick read.

David Fagundes is, like me, a fan of the Beautiful Game. He has, unlike me, thought about what diving (exaggerating contact to draw a foul) says about different cultures' beliefs concerning the morality of rule-breaking:
What interests me about this reaction to diving is how pronounced it is among some sports fans, and how subdued it is in others. Some soccer cultures regard simulation as the sporting equivalent of murder (morally reprehensible regardless of whether you’re caught doing it), while others regard it as the sporting equivalent of jaywalking (illegal, and not a good idea, but something you might do every so often if you think you can get away with it and it gains you some advantage). I examine this puzzle in more detail, and pose some conjectures about resolving it, after the break.

Many Americans actively dislike soccer, for reasons that have something to do with a vision of anti-globalist national exceptionalism that I don’t think makes any sense. But even among Americans who do like soccer, the act of diving inspires a level of ire that has always puzzled me. Soccer-hating Americans have told me that diving is the primary reason they can’t tolerate the sport. Soccer-loving Americans were apoplectic when a member of the US Men’s National Team was suspected (wrongly, it turns out) of simulating a foul in order to gain advantage.

This moral outrage over diving is not limited to the U.S. Diving in British soccer is regarded as an attack on the game itself. Man U manager Alex Ferguson recently stated that “Players who cheat are killing the game.” And British fans often express the same righteous fury as Americans do when players from South America or southern Europe (or anywhere, really) simulate injuries or fouls in international competition.

This same moral outrage does not seem to characterize soccer fans from South America or southern Europe (disclaimer: I’m well aware that I’m making massive generalizations when speaking about these phenomena at a national level; my claim is only that they are true in my experience and at a very high level of generality). People from these countries don’t seem to love it when opposing players seek to gain advantage from diving, and I’ve seen them express frustration at particularly egregious instances of simulation, but neither do they treat it as the ethical abomination that Anglo-American soccer fans tend to.
Finally, while we're speaking of soccer-related abominations, I'll throw in a self-serving plug for the English Premiership fantasy league I'm organizing for the coming season (which begins on 13 August). Our league will be a head-to-head one and to ensure some robust competition, I'm hoping to add a couple more to the group already assembled. To get a sense of what the game will involve, you can visit the EPL's fantasy game site, through which our league will be run. The group thus far is a nice mix of lawyer and non-lawyer football aficionados; if you enjoy the Beautiful Game (the English professional version of it, anyhow) and are interested in joining us, drop me a line at colin@infamyorpraise.com.

There will be no Round Tuit post next Wednesday, as I'll be traveling over the weekend and much of next week. Please don't write anything interesting until after I return.

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

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