TGIS: Thank God It's Schadenfreude! (340)

This week's joy in the misfortune of others comes courtesy of NBC Washington (from Thursday, October 6; link good at time of posting):

Westboro Baptist Church, the Kansas-based congregation infamous for picketing the burials of slain soldiers, said it will demonstrate at Apple founder Steve Jobs' funeral - and made the announcement using an iPhone.

Margie Phelps, daughter of pastor Fred Phelps, tweeted that the church will attend Jobs' so far unannounced funeral. Apparently unaware of the irony, Phelps used an iPhone to issue the Twitter message, reported Web pro News.

[Previous TGIS]

TGIS: Thank God It's Schedenfreude! (328)

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

Departing staff at the News of the World appear to have sent a parting message of disgust to former editor Rebekah Brooks in the crossword of the paper's final edition.

Despite orders allegedly given from the top of News International to ensure to "ensure there were no libels or any hidden mocking messages of the chief executive", staff appear to have found a way of mocking Mrs Brooks one last time.

Among the clues in the paper's Quickie puzzle were: "Brook", "stink", "catastrope" and "digital protection".

The clues for the Cryptic Crossword seemed to cut even closer to the bone, with examples including: "criminal enterprise", "mix in prison", "string of recordings" and "will fear new security measure".

The clue for 24 Across - which reads "Woman stares wildly at calamity" - is thought to be a reference to a photograph of Mrs Brooks staring furiously from the window of a car as she left News International's Wapping headquarters following the announcement the News of the World was to be shut down.

The answer to the clue is not one she would appreciate: "disaster".

Other answers included: "stench", "racket" and "tart".

A source at the News of the World told the Daily Mail that Mrs Brooks had ordered two loyal Sun journalists to comb the papers looking for tricks.

They said: "Rebekah tried everything to stop the staff having the last word and she utterly failed.

[Previous TGIS]

A Round Tuit (62)

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.

If I might digress for a moment, I'll mention that some months ago my family opted to discontinue our cable television subscription. Between Apple TV and streaming Netflix, I'd found that nearly all of our entertainment needs could be satisfied without coughing-up a hunski every month to the fine folks at Comcast. Until a couple weeks ago, I was merely satisfied with that choice; there's downside — namely, my limited live sports choices — but it's outweighed by the upside — increased disposable income and fewer hours spent watching drivel, amongst other things.

Since discovering what I'd missed in all the news coverage of the Casey Anthony trial and verdict, however, I've revised my opinion. Going cable-free is an unmitigated good.

Friends, you can rid yourself of the social disease that is Nancy Grace and save money while doing so! I'm living proof!

As distasteful as the furor surrounding the trial and disgraceful the unhinged commentary of lawyers (including Grace) on television was, the discussion in the legal blogosphere demonstrated that sane consideration and discussion of emotional legal topics is indeed possible. Shortly after Anthony was acquitted on all but a few misdemeanor counts, Brian Tannebaum offered some thoughts about the shameful coverage of the trial in the media and reaction to it online:

I don't know what happened to 2-year old Caylee Anthony. Neither do you.

....

The jury of 12 unanimously rejected that the state proved Casey Anthony killed her daughter.

CNN calls this a "stunning" conclusion. Why?

Because the public knew she was guilty.

....

For the media now doing the typical questioning of their behavior during the trial, save it. You made your bed, you lost your bet that there would be a death sentence, and questioning yourself is the definition of hypocrisy.

As for the public's "disgust," and whiny disastrous attempts at complete sentences on social media - I can't help you understand the system of American justice. You don't care. You want what you want, damn the Constitution and jury instructions. All I can say about you is that I will argue for your right to act like complete morons and I will argue for a criminal defendant's right to a fair trial, which includes the obligation of the state to prove each and every element of the charge(s) beyond and to the exclusion of a reasonable doubt.

The embarrassment of the Casey Anthony verdict is not the verdict, it's everything surrounding it.

The jury's verdict of "not guilty" didn't affect Elie Mystal's suspicions about her culpability, but he was as disgusted as anyone by the coverage of and reaction to her case:

...I expect lawyers and people with a modicum of legal training to at least be able think about “the justice for Casey Anthony.” Look, the jury found her “not guilty,” but that doesn’t mean I have to believe that she’s “innocent.”

I just fail to see the outrageous miscarriage of justice here. Was the trial unfair or rigged in some way? Was the jury tampered with? Was there some kind of “smoking gun” evidence that prosecutors were not allowed to present in front of the jury? No? Then STFU, please. The lady beat the rap. It happens.

....

Look, I’m not trying to defend Casey Anthony. I’m not that crazy. I’m just trying to say: “Nothing is f**ked here, dude.”

Amongst those trained attorneys discussing the case anywhere except on television, "nothing is f**ked here, dude" seemed to be the general consensus. As Scott Greenfield put it, "Stercus accidit." He discussed our unease with the jury system when our questions remain unanswered:

Before the verdict, everybody had answers, with the loudest voice being Nancy Grace who seized every opportunity to tell the rest of us how much she knew. After, she was the ugliest person on TV. Truth is, she was always that ugly, but it didn't come into focus until her face contorted in disgust.

One of the hardest things to get used to is reaching an end without having answers. Tolerance for ambiguity, the variety of things it might have been, isn't the norm in a world where everything is explained in the final five minutes of the show. We got a verdict, but we have no answers. Most people can't stand it.

....

It's never clear what a jury might do. It's even less clear why. Sometimes, there is no reason behind it at all, while other times the reason is abundantly sound. We can't believe the post-verdict interviews, where they explain their rationale after they've had a chance to form one. The dynamic in the jury room defies normal explanations.

....

The system worked, however. That much I know. When the jury reached a verdict, that's what the system is supposed to do. What that verdict is, on the other hand, isn't dictated by the system itself, but by the vicissitudes of trial. Despite the efforts of all involved, the outcome sometimes comes on its own. And sometimes the right outcome happens. The reasons for it, well, don't really matter. That's why juries don't have to explain themselves and justify their verdict.

Walter Reaves wrote that the Anthony verdict serves as a reminder that the State still has to prove its case (and for this we should be thankful):

The justice system still requires the State to prove it's case beyond a reasonable doubt. Basically that means you shouldn't convict someone because you think they are "probably"guilty. the burden isn't decreased in serious cases, or when a child is involved. No matter how much you want to see "justice" done, that doesn't mean you convict someone on less than sufficient evidence. Far to often jurors give in to the urge to want to hold someone accountable. The most convenient "someone" is the defendant on trial.

For Douglas Berman, Anthony's sentence for several Florida misdemeanors — with nearly all of that time already served — contrasted with and highlighted the failings of the Federal system:

...Anthony faces sentencing on only four Florida misdemeanor counts based on her lies to police during the investigation of her daughter's disappearance. In the federal system, such lies might have been charged as a felony count of obstruction of justice, and then each conviction would carry a five-year maximum prison term. In Florida state court, Anthony is looking at a maximum prison term of four years (a one-year max on all four misdemeanor counts of conviction); were this matter in federal court, she could have been facing up to 20 years total imprisonment based on four lies to authorities.

Most critically, the federal sentencing guidelines would instruct a judge to sentence Anthony based essentially on the crime he believes, based on a preponderance of evidence, she covered up even after a jury has acquitted her of that crime. In other words, it is not only possible, but surprisingly common, for a federal judge to sentence a defendant for a murder that the defendant has been acquitted of!

Patrick Lee reported that for many people, Anthony's case demonstrated another failing of the Federal system — that her conduct was somehow not a violation of a Federal law. In the days after the verdict, more than a million rubes signed-onto an online petition site to fix what isn't wrong:

The petition is the fastest-growing campaign that has ever been hosted on the site and is causing website traffic problems, a spokesman for Change.org told the Law Blog.

It calls for the creation of a new federal statute called “Caylee’s Law” – named after Anthony’s deceased daughter – that would make it a felony for parents not to report the death of a child to law enforcement within an hour of discovering the incident, or within 24 hours in the case of child disappearance.

....

The proposal stems from details in the Anthony case: Caylee first went missing on June 16, 2008, but her grandmother only notified the police a month later. Trial spectators reacted with anger and disappointment to the jury’s verdict, upset by the prospect that Anthony might soon walk free after spending two and a half years in prison waiting for trial....

Scott Greenfield noted that although the specifics of "Caylee's Law" weren't necessarily predictable, that someone would propose such a law was a near-certainty:

[E]very time a child dies, no matter how bizarre the circumstance, society must prevent it from ever happening again.

....

This compulsion to avenge a tragedy involving a child by crafting yet another law to deal with a situation already fully covered (as in murder) has produced a basic rule that any law named after a dead child is invariably a bad exercise of legislative fiat. It's not the intended consequences I fear, but the unintended ones. And there are always unintended ones.

....

This is a huge promotional opportunity for politicians across the country, to grab all those folks feeling disaffected by the verdict and make a run for their hearts, if not their minds.... This isn't about an appeal to reason, but an appeal to emotion.

Are legislators so stupid as to believe that enactment of this misguided law will accomplish anything? Well, no doubt some are. There's no intelligence test required for election to office. But others will know that this is just pandering, and will do so with gusto.

Ilya Somin also made a political calculation:

It seems likely that political ignorance is an important part of the story here. The public sees the high-profile case, and has a knee-jerk desire to “do something about it.” Most voters don’t realize how rare such cases are, and also know very little about the potential downsides of proposals like these. And, because political ignorance is rational, few will take the time and effort to investigate the evidence and deliberate carefully before forming an opinion. For their part, politicians hungry for votes and activists hungry for media attention are more than willing to cater to the public’s demands.

It’s unrealistic to expect rationally ignorant voters to devote significant time and effort to studying proposals like Caylee’s Law.

....

In the wake of a terrible tragedy, it’s much more emotionally satisfying to call for decisive action to save the next Caylee Anthony than to hold back on the grounds that there may be nothing we can do.

Marco Randazza saw the legislative pandering coming and pleaded for someone to enact "Marco's Law" before it was too late:

Can we please pass “Marco’s Law?” If any legislator proposes a law named after a dead child, the legislator should lose their position, then they should be dragged out into the street, and someone should shove a live cactus up their ass.

No such luck. Within days, "Caylee's Law" had morphed from misguided online petition to misguided proposed legislation in a few states. Radley Balko wrote a tremendously-detailed and thoughtful post outlining the many reasons a law along the lines proposed would be — to put it mildly — a bad idea:

Even as DNA testing continues to exonerate wrongly convicted people, including people who were nearly executed, it's this rare case -- in which a jury recognized that there was no physical evidence linking Anthony to her daughter's murder -- that has America questioning its justice system.

....

This is a bad way to make public policy. In an interview with CNN, [activist Michelle] Crowder concedes that she didn't consult with a single law enforcement official before coming up with her 24-hour and 1-hour limits. This raises some questions. How did she come up with those cutoffs? Did she consult with any grief counselors to see if there may be innocuous reasons why an innocent person who just witnessed a child's death might not immediately report it, such as shock, passing out, or some other sort of mental breakdown? Did she consult with a forensic pathologist to see if it's even possible to pin down the time of death with the sort of precision you'd need to make Caylee's Law enforceable? Have any of the lawmakers who have proposed or are planning to propose this law actually consulted with anyone with some knowledge of these issues?

....

While Caylee's Law could quite conceivably ensnare innocent grieving parents, it seems unlikely that it will prevent a single child's death. Consider: Is a father who is depraved enough to kill his own son really going to be dissuaded by a law that says he must notify the authorities of his son's death within an hour of having killed him? He's already committing murder. The law isn't likely to affect a parent who kills a child in a fit of anger or rage, either. By definition, crimes of passion are perpetrated in the heat of the moment, with little consideration of consequences.

....

In a country of 308 million people, bad things are going to happen. We already have laws against murder, child abuse, and child neglect. When you pass laws that make it easier to imprison people in cases where the state doesn't have enough evidence to prove the crime everyone knows they're actually prosecuting, you undermine the integrity of the justice system. The "flaw" that led to the Casey Anthony verdict is pretty straightforward: The state failed to prove its case. And the government must prove its case, even when all of America is 100 percent certain of the defendant's guilt, because we want to be sure the state will always also have to prove its case when we aren't so certain.

Rick Horowitz considered the public spectacle surrounding the Anthony trial and was reminded of an earlier public spectacle:

The courtroom is about the closest that I think any civilized people should ever come to gladiatorial combat.

There, the “gladiators” share one thing — and, I hope, pretty much only one thing — in common with those of ancient Rome: they are professionally trained.

....

Our criminal justice system depends — particularly for the right to be called a “justice” system — upon this fundamental principle that neither Truth, nor unarmed prisoners, will be sacrificed to the State’s trained gladiators.

In no other way is our justice system intended to resemble the Colosseum!

Increasingly, however, it appears that Americans are no more concerned with justice and no less bloodthirsty than those who flocked to the amphitheaters of Rome to watch the munera.

Brian Tannebaum deserved the first word on the Anthony trial in this post and he deserves the last as well:

For the lawyers and former judges on TV saying the jury "didn't understand reasonable doubt?" You disgust me.

To all those asking what I think of the verdict? I think a jury of 12 people agreed the state didn't prove the case, and when 12 people can read instructions and evaluate evidence and come to a unanimous decision, I am happy that the Constitution is still a part of our system, no matter how many politicians and self hating lawyers try to tear it down.

I'm sorry a little girl is dead. I have two myself.

But I never want the Constitution and our criminal justice system to take a back seat to those who believe the burden of proof is just a technicality.

This past week or two has demonstrated the worst tendencies of the American free press; thankfully, Rupert Murdoch's News of the World was busily demonstrating the worst tendencies of the British free press and distracted a bit from our shame.

Briefly, the background on this long-developing scandal: In 2006-7, a News of the World editor and a private investigator whom he'd hired were convicted after they hacked-into the voicemail of several members of the royal family's staff. News International, the Murdoch company which owns that paper and several others in the UK, claimed that the hacking was the work of those rogue individuals and was neither a common practice elsewhere in the organization nor directed at other targets. Recently, evidence surfaced which indicated that neither representation was true. It's now believed that thousands of people, including victims of terror attacks and family members of soldiers killed in the Iraq War, may have been targeted by News of the World reporters, editors, and investigators. Amongst the voicemail accounts accessed was that of Milly Dowler, the schoolgirl whose disappearance and murder recently resulted in a high-profile trial and conviction; some evidence suggests that messages may have been improperly deleted from her account, creating some concern amongst authorities that their recently-secured conviction might now be subject to challenge.

Amanda Bancroft discussed the developing scandal and suggested that stronger regulation than the current Press Complaints Commission was needed:

Back in the 19th Century, Alexis de Tocqueville suggested that “in every democracy, the people get the government they deserve”. I’m quite sure he was, and is, right. I wonder though, whether we also get the press we deserve.

....

Some are calling for new law. Some are calling for advertisers to now boycott the News of the World, some are calling for heads on platters, and others are just expressing rage. Some, including the former Deputy Prime Minister, are suggesting that this story is indicative of why Rupert Murdoch shouldn’t own the part of BSkyB which isn’t currently in his control, and Ed Miliband is calling for a public inquiry. Later today there will be an emergency debate in the Commons on the issue.

What I am interested in is why parts of this phone hacking story are still emerging 9 years after the event.

....

[I]n 2009, so staunch was the PCC in standing by their 2007 investigation, in particular that there was only 8 hacking victims, Baroness Buscombe accused Mark Lewis, the lawyer now representing the Dowler family, of being misleading in his evidence to the Select Committee in saying there were some 6,000 hacking victims. He launched a libel action, which was settled for an undisclosed sum, and led to an apology.

....

My original pondering was do we get the press we deserve? Given that this story, largely due to the Guardian, is now in the public domain, I believe yes, we undoubtedly do. In our reaction to the criminal activities of one news desk we should not forget that we have a press we can be proud of, who keep a check on the government of the day, any day, when one considers, for example, the Spycatcher affair and more recently, the MP’s expenses investigation. But once we have finished the public inquiries, and once the criminal trials against the proper perpetrators have ended, can we have the regulators we need, please.

David Allen Green wondered that News International's response to the developing scandal was surprisingly inadequate:

For a media organisation who deals with those engaged in reputation management on a daily basis, the reaction of News International was unimpressive. Yesterday's email from [News International executive and former News of the World editor] Rebekah Brooks was barely even literate, with "allegeds" and "allegations" inserted so as to render propositions and sentences almost meaningless. The unfortunate spokesperson put up for interviews on the evening news came across as evasive and hapless.

However, this flat-footedness should not be any surprise.

The tactic of News International at each phase of the scandal is to try and close the matter down by explaining away the available facts. Hence we have had the "lone rogue reporter" theory for the Royal Household hackings; and the dismissive "just media tittle-tattle" excuses for the celebrity hackings. That the hacking have now moved on to ordinary people caught up in events has exposed the limitations of previous narratives.

As it stands, News International clearly cannot decide whether to claim it has all the necessary facts (so that it can say that the problem has been dealt with) or that it has not got the necessary facts (so that it cannot comment on what it does not know).

Late last week, the company decided to shut down the 168-years-old, highly profitable News of the World in an attempt to stop their legal, political, and financial bleeding. Green wrote that: "Whatever the PR and political merits of the decision to close the News of the World, it makes no legal difference whatsoever in respect of the phone-hacking scandal. The applicable criminal and civil legal obligations are owed by News International and the individuals concerned." Kashmir Hill noted that the closure of News of the World represented the latest in a series of businesses given a "death penalty" for their disregard of personal privacy:

There’s a higher threshold for invasion of public figures’ privacy; in the sphere of public opinion, it seems that hacking the voicemail of a 13-year-old girl — a private citizen who became a public only because she went missing — crossed a line, becoming an abuse of journalistic privilege sufficient to demand a sacrifice.

....

[News of the World's] closing is proof that privacy is not just a buzzword, but important to a business’s survival. The shuttering of News of the World is probably the most visible death of a business based on privacy violations but it’s not the first.

Many observers suggested that the decision to close the paper so dramatically was intended to salvage News Corporation's pending effort to acquire the satellite broadcaster BSkyB. Carl Gardner watched the maneuvering and discussed whether these new revelations endangered the acquisition:

So can the Culture Secretary Jeremy Hunt now block the planned merger of News Corporation and BSkyB?

He has already said he is minded to allow it, subject to certain undertakings relating in particular to the independence of Sky News, undertakings on which he is consulting the public.

....

In my view it’s not legally defensible now for Hunt to slam the brakes on this process, let alone put it into reverse. Crucially, the legislation governing the procedure – article 5 of the Enterprise Act 2002 (protection of Legitimate Interests) order 2003 – requires him when deciding now whether to refer the matter to the Competition Commission to take account only of the public interest consideration mentioned in the original European Intervention Notice – the plurality of media ownership. Given his previous indication that he was minded to accept undertakings, and given the Ofcom/OFT advice, in my view a court on judicial review would be bound to conclude that a referral now could only be based on new public interest considerations – and would quash the decision to refer.

In that post, Gardner suggested that the previously-stated government position and the company's "undertakings" — its promise to spin-off Sky News as part of the transaction, offered to avoid referral to the UK's Competition Commission — made News Corporation's position a very strong one. When the company unexpectedly withdrew those undertakings, ensuring a referral to the Competition Commission, Gardner wrote that, "This changes everything." He considered what the company — and the government — stood to gain from the move and whether this was an arranged deal between them:

First, in spite of the strength of their legal position, Rupert Murdoch and News Corp must have feared that, the political temperature on this issue being so high, there was a risk that ministers might feel obliged to “find a way” to block the bid, and try to call Murdoch’s legal bluff, or gamble that they might, just, successfully defend a judicial review in these extreme circumstances.

....

From News Corporation’s point of view, while today’s move puts the bid on the back burner (as many MPs have been demanding) it does not kill it; it leaves open the possibility that News Corp could once persuade the Competition Commission, as it persuaded the OFT and Ofcome, and that the bid could go through one day, when perhaps the heat has subsided. While we’re used to thinking about Rupert Murdoch’s power over government, the truth is government has a great deal of power over him. He might well choose to do them a favour rather than raise the stakes yet higher at this moment of danger for his whole empire.

From ministers’ point of view, the decision comes like a prayer being granted. It gets Jeremy Hunt completely off the immediate legal and political hook. His transparent decision to delay a decision – by relying on the number of responses he had to his last consultation – was not unsustainable in the short term politically, and in the longer term legally. This gives him much more room for manoeuvre.

....

[I]n my view, one of the inquiries announced last week by the Prime Minister must look into all contact between News Corp and everyone and anyone in government and Parliament last week and this. The public must know if this was yet another stitch-up between News Corp and politicians.

Invariably, whenever a legal controversy commands public and governmental attention as this one has, we can rely on Charon QC's "Without Prejudice" podcasts to get the the heart of the issue; he and guests Carl Gardner and David Allen Green did so this week in a very lively discussion.

I left Charon a voicemail congratulating him on another fine discussion. I didn't bother to leave it on his phone, however; I just called News Corporation directly. Since they're so busy this week, I thought I'd save them the effort of hacking his account.

We often discuss the key roles ethics and credibility play in maintaining our profession and, conversely, how failures of ethics and credibility undermine it. George Wallace noted this past week that this is true as well for expert witnesses:

Just today, I noticed a discussion thread in the LinkedIn "Insurance Coverage" Group that gave me pause. An attorney in the Buffalo/Niagara region of New York has started a discussion under this title:

Need ins agent expert to testify at trial in NY Sup Ct Erie Co that standard for agent of direct writer is to obtain requested coverage in reasonable time or inform client of inability to do so.

....

The attorney essentially says flat out that the object of the search is not an expert to consult or advise generally on a subject, i.e., "standards for agents of direct writers." Rather, as phrased, the attorney announces a search for an expert who will commit in advance to stating a particular opinion, i.e., "the standard for agents of direct writers is [as stated by the attorney]." The standard articulated by the attorney may, in truth, be the applicable standard in New York; the method by which the opinion has been solicited, however, potentially compromises the credibility of any expert who takes the stand to describe it.

Expert witnesses are constantly accused, in depositions and at trial, of being mere "hired guns" whose opinions should be disregarded because they are "bought and paid for." Expert witnesses are always under scrutiny by opposing counsel concerning the manner in which they came to be selected and hired. Framing the search for an expert as has been done in this LinkedIn discussion makes the "hired gun" argument that much easier for opposing counsel to advance, by providing what may be perceived as direct evidence that whichever expert ultimately ventures the relevant opinion should perhaps not to be trusted by the trier of fact.

With an expert witness, credibility is everything. An expert's opinion testimony is only as persuasive and only as valuable the expert's explanation of the reasons for holding that opinion. A jury or a judge needs to be persuaded that the expert's opinions are reliable because the expert genuinely holds those opinions and has come to them by a reasoned and articulable process. The entire structure of expert witness credibility collapses when it can be demonstrated, or at least made to appear, that the expert was retained to parrot opinions dictated by counsel, to be as it were a mere "mouthpiece's mouthpiece."

An entertaining incident made the rounds this past week when a wildlife photographer had his camera misappropriated by a few of the monkeys he was photographing. According to his account, the monkeys took dozens of photos, including several amusing self-portraits, before he recaptured his lost gear. That several of these photos were circulated by his wire service with their own copyright notice prompted several bloggers to wonder how those copyrights might have been acquired. Kevin Underhill wrote:

Since [photographer David] Slater didn't take the pictures, I don't think he can be the "author." And unless he got the monkey's consent in writing, I don't think he has any rights through the author. If this had been a "work for hire," then the employer would own the rights, but this monkey was clearly a freelancer. I suppose non-human primates probably can't own intellectual property, although underage humans can, and that's a pretty fine line as far as I'm concerned. But even if the monkey doesn't have the rights, that doesn't mean Slater or the news agency has them. Maybe all works of monkey art are in the public domain!

Mike Masnick speculated along similar lines, but his experience took an odd turn when the news agency sent him a take-down notice in support of their copyright claims. Masnick described his subsequent exchange with the organization:

After consulting no fewer than four lawyers (I'm nothing if not thorough) on this matter, I decided that the best course of action was just to ask for a clarification, since they did not make clear the actual basis for the request, and point out that it's not at all clear Caters has any legal claim whatsoever. At the same time, assuming they could come back with some legal argument for why the copyright was legit, we decided to make it clear that we believe, strongly, that the use of the images was protected fair use, if they actually are covered by copyright.

....

Caters was quick to reply, and it appears they have a rather different view on these things:

Michael, regardless of the issue of who does and doesn't own the copyright - it is 100% clear that the copyright owner is not yourself.

You have blatantly 'lifted' these photographs from somewhere - I presume the Daily Mail online. On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs.

If I'm reading this correctly -- and I believe that I am -- Caters News Agency is claiming that anyone, copyright holder or not, can issue a takedown on a photo, if they can claim that the person using the image is not the copyright holder either -- regardless of whether "fair use" applies. That's... an interesting interpretation of the law. It's also not a valid interpretation of the law. In fact, in some places, sending a takedown notice, if you are not the copyright holder, is what's actually against the law.

....

[T]his highlights another case of someone completely misunderstanding the purpose and intent of copyright law, believing that it is universal and that it gives total control to the copyright holder. Caters does not even seem willing to consider that this image might not even have a copyright given its provenance. In fact, under Cater's own definition, it seems just as reasonable for us to ask that it take down the image, given that we do not believe that it has a valid copyright interest in the image either. Not everything gets copyright, and when something is covered by copyright, it does not give the rightsholder full control over every use. It's unfortunate that a company that has built a business around copyright appears not to understand these basic facts.

Touching upon a number of cases, Gideon asked provocatively what sort of justice system we really want and whether "justice" is characteristic of it:

The appreciation of a system which presumes an individual innocent unless the State can prove guilt beyond a reasonable doubt seems to be shrinking to a select few who make their living in that system. For the rest, the pure exhilaration of having a pre-determined verdict of guilt (and isn’t it always guilt?) announced, confirming their increasingly myopic and monochromatic view of the world is the only expectation.

Do we want a system that protects the individual or do we want a system that confirms our view of the guilt of those arrested? Do we want a system that lifts the substance of the accusation up to the light – and upon finding it wanting – discards it? Or do we want a system that goes by the smell test? Do we want a system where no one who is arrested is not guilty? Do we want so much to believe in the infallibility of our so-called protectors? Do we want a system that allows us to so easily and hypocritically create an artificial divide between the mob and the mobbed?

Does the system only work when the guilty are convicted and the innocent are acquitted, or does it work when some who may be guilty are nonetheless set free? Does the system work when some who are likely innocent are not?

....

[T]here is a bias toward convicting and keeping people convicted. I sit here, day after day, reading as cases and reports of cases come flooding across my line of sight – and every day it’s the same: we love pronouncing judgment on others and love our moral indignation and our self-assumed superiority. We are better. They are guilty.

....

One day they’ll come for you and there’ll be no one left to speak up for you.

What do we want from our system? A rubber stamp, apparently.

While Gideon's lack of faith in us and the system we've created is justified, Radley Balko reminded us this past week that justice is sometimes done — if grudgingly, uncertainly, and unacceptably slowly. The long road Cory Maye's defense team traveled to secure his release from an unjust imprisonment shows that justice can be done, but illustrates how unlikely it's become for many caught-up in our justice system:

Cory Maye, now 30, was convicted in 2004 of shooting and killing Prentiss, Mississippi, police officer Ron Jones, Jr. during a botched drug raid on Maye's home on the day after Christmas in 2001. Maye says he was asleep as the raid began at 12:30 a.m. and had no idea the men breaking into his home were police. The police say they announced themselves. Maye had no prior criminal record, and police found all of a marijuana roach in his apartment, which under other circumstances would garner a $100 fine.

In fact, the man who lived next door to Maye in that bright yellow duplex, Jamie Smith, already had drug charges pending against him and appears to have been the actual target of the police action that night. The police found a significant supply of drugs in Smith's apartment, though Smith has never been tried.

....

Ask anyone about Maye, and they'll mention that grin. Maye always smiles, even when a smile may not be the most appropriate expression. [Maye attorney Bob] Evans says he was smiling throughout his trial, which probably didn't help him with the jury. He was even smiling when he was sentenced to death.

"So what are you thinking this morning?" I ask. "I imagine there's a lot going through your mind."

"I'm just ready to get home to my family and see my kids," Maye says. "I want to take them fishing. Maybe take them to Sea World or Disneyland."

....

[W]e chat about food. He wants his first meal outside of prison to be his mother's gumbo, with a side of her banana pudding.

"There's going to be a big party when this is done," Evans says. "You'll get to eat all you want."

It's an inspiring story and well-worth a careful read in its entirety. Balko is modest about his own role in publicizing Maye's case over several years, publicity which enabled Maye to secure the pro bono representation of two members of his legal team and to keep his case in the public consciousness. Maye's story is one in which Balko has played a meaningful role; it's entirely fitting that his hand should write its happy ending.

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

TGIS: Thank God It's Schadenfreude! (324)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Tuesday, June 14; link good at time of posting):

An online action figure company has jumped on the Anthony Weiner sexting scandal bandwagon with a doll of the New York congressman in two versions: censored and uncensored.

HeroBuilders.com of Oxford, Conn., is offering the "standard" doll for $39.95 and the anatomically correct "for adults only" version for an extra $10.

Both are dressed in a gym shirt and shorts with a label that reads "Tweet This."

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (322)

This week's joy in the misfortune of others comes courtesy of Reuters (from Wednesday, June 1; link good at time of posting):

Italy foiled an attempt by North Korea to import tap-dancing shoes in breach of a U.N. ban on the sale of luxury goods to Pyongyang, according to a U.N. report on the enforcement of sanctions against the North.

....

"In December 2010, a shipment of high-quality tap-dancing shoes was blocked at Orio al Serio Airport (Milan)," said the report by the so-called U.N. Panel of Experts, which monitors compliance with U.N. sanctions against North Korea.

A U.N. diplomat told Reuters on Tuesday that the seized shipment involved several dozen pairs of tap-dancing shoes. He said that it was not clear how the tap shoes might fit into North Korean leader Kim Jong-il's lavish lifestyle, which includes grandiose stage performances by North Korean performers.

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (318)

This week's joy in the misfortune of others comes courtesy of a number of our Special Forces personnel (via FBI.gov) (from Monday, May 2; link good at time of posting):

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (312)

This week's joy in the misfortune of others comes courtesy of Reuters (from Wednesday, March 16; link good at time of posting):

Comedian Gilbert Gottfried apologized on Tuesday for a series of jokes made on Twitter about the Japanese earthquake and tsunami, comments which got him fired as the voice of insurer Aflac.

"I sincerely apologize to anyone who was offended by my attempt at humor regarding the tragedy in Japan. I meant no disrespect, and my thoughts are with the victims and their families," Gottfried said in a statement.

Since 2000, the comedian had been the voice of the quacking duck in Aflac's commercials, shouting "Af-LAC!" at opportune moments.

But the company was quick to dismiss him after a dozen jokes made on his Twitter account last weekend, many of them crude and sexual riffs on the effects of the disaster.

[Previous TGIS]

A Round Tuit (55)

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.

The passage of the "Obamacare" healthcare reforms was the signature legislative effort of the President's first two years in office; the defense of Obamacare is shaping-up to be the signature legal effort of his administration's next two years.

This week in Florida v. Department of Health and Human Services (link provided by The Wall Street Journal), the landmark healthcare law was declared unconstitutional; the Administration will, of course, appeal. The ruling was reported by Ashby Jones:

Judge Roger Vinson, a Republican appointee, said that the law’s requirement to carry insurance or pay a fee “is outside Congress’ Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not constitutional.”

In contrast with the Virginia ruling from last year, Judge Vinson found that the entire health care law must be struck down; that the so-called “individual mandate” is not “severable.”

....

The ruling ties the score at 2-2. To date, two federal judges have upheld the law as constitutional... while two have found that Congress exceeded its constitutional authority in passing it....

While I won't attempt to summarize the legal or political debate which preceded Vinson's decision (the earlier cases Jones mentions are linked in his post and were widely-discussed when issued), I will say that I find it remarkable that this ruling hinges on two screw-ups: one was a legislative mistake — in Congress' rush to draft and pass the law, a severability clause was inadvertently omitted — whereas the other was a strategic mistake — the Administration consistently argued that the individual mandate was an essential, inseparable part of the broader law, more-or-less daring the Judge to invalidate Obamacare in its entirety if he found any part objectionable. Peter Suderman explained how the Administration's brinksmanship backfired:

Because the law contained no severability clause, a contingency provision that would have protected the bulk of the law should one part be ruled unconstitutional, Vinson had to decide whether in striking the mandate he should also strike some or all of the rest of the law. Supreme Court guidance on laws lacking severability clauses suggests that judges should generally seek to excise as little of the law as possible, but also to ensure that if there is a remainder, it still serves the law's overall intended objective.

Therein lies the problem for the law’s legal backers. As Vinson notes in his ruling, both the administration, which is implementing the law and defending it in court, and Congress, which wrote and passed the law, have made clear that the individual mandate is an absolutely critical provision.

....

As a result, Vinson concludes that “the individual mandate is indisputably necessary to the Act’sinsurance market reforms, which are, in turn, indisputably necessary to the purpose of the Act.” Essentially, the administration's lawyers argued that the health care law wouldn’t work without the mandate, and Vinson took them at their word.

Elie Mystal, for one, was unamused that the fate of healthcare reform seems likely to turn on a swing-vote in the Supreme Court:

You know what that means? It means that very soon America will be operating under the Anthony M. Kennedy health care system. Does Justice Kennedy think that I have a right to health care? Does he think that pre-existing conditions should be covered? Is he comfortable having an entire nation’s health care system held hostage by a few insurance giants?

Exciting questions! I can’t wait to see how a man who nobody elected will decide our medical futures….

Mystal was certainly not alone in criticizing the result; Mark Hall wrote that the opinion was legally unsound and reads more like a political tract than a reasoned judicial ruling:

On first read, the most striking aspect of Judge Vinson’s ruling today is not its remedy — striking the Affordable Care Act in its entirety — but the impression one gets that the opinion was written in part as a Tea Party Manifesto. At least half of the relevant part of the opinion is devoted to discussing what Hamilton, Madison, Jefferson and other Founding Fathers would have thought about the individual mandate, including the following remarkably telling passage (p. 42):

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

For his part, Jack Balkin viewed the decision as inherently political, though he seemed to attribute the party views in question to mainstream Republicans rather than the Tea Party activists on the fringes of the party; he compared it unfavorably with the earlier, more limited decision in Virginia v. Sebelius:

It is hard to see Judge Vinson's opinion on the question of severability as entirely unaffected by partisan considerations....

....

The Republican Party does not want to excise the individual mandate but keep the most popular features of the ACA; it wants to get rid of the entire statute. This is something that Judge Hudson, who also declared the individual mandate unconstitutional in Virginia v. Sebelius, was unwilling to provide. In these "unique" circumstances, however, Judge Vinson was happy to be of service.

I never thought I'd say this, but compared to Judge Vinson, Judge Hudson is starting to look like an apostle of judicial restraint.

In a subsequent post, Balkin discussed how the intense criticism of the individual mandate has essentially missed the point:

What is lost in the debate over the individual mandate is that the point of the individual mandate is also civic republican in nature. It requires citizens to make a far less significant but also public-spirited sacrifice on behalf of other Americans who cannot afford health insurance. Individuals must join health insurance risk pools to make health care affordable for more of their fellow citizens. This is a very modest request that individuals not be entirely selfish and that they contribute to the public good in a small way by helping to make health care accessible and affordable for all Americans. Indeed, under the terms of the Affordable Care Act, one doesn't even have to purchase insurance; one can simply pay a small tax instead. And one doesn't have to pay at all if one is too poor to do so or has a religious objection.

The notion that being asked to either buy health insurance and make health care accessible for one's fellow citizens--or to pay a small tax-- is a form of tyranny akin to George III's regime is simply bizarre: it shows how perverted and twisted public discourse has become in the United States. The assault on the individual mandate is really an assault on the public duty to assist other Americans in need, and in particular, an assault on the legal obligation to pay taxes to contribute to the general welfare. The assault on the health care bill is not a defense of liberty. It is a defense of selfishness.

David Gans suggested that Vinson's take on Constitutional originalism was a highly-selective and ultimately disingenuous reading of Supreme Court precedents:

Chief Judge Vinson’s opinion, issued yesterday, profoundly misinterpreted the Constitution in order to justify striking down the Patient Protection and Affordable Care Act. In his opinion, Judge Vinson invoked a highly selective, skewed version of our Constitution’s text and history. Relying heavily on the work of a few conservative originalists, Chief Judge Vinson’s opinion ignored or dismissed every piece of evidence to the contrary, including the Framers’ understandings of the scope of the powers of the federal government and Marshall Court’s canonical cases construing the Commerce Clause and the Necessary and Proper Clause.

In Vinson’s telling, the Commerce Clause was designed by the Framers of the Constitution to be a narrow grant of power, which permitted Congress to regulate trade between the states, and to eliminate discriminatory trade restrictions between the states. But his suggestion that Congress’ authority under the Commerce Clause was limited to matters of trade has no support in history, and is contrary to binding Supreme Court precedent, rulings that Vinson, as a lower court judge, is supposed to follow.

....

In Chief Judge Vinson’s version of Supreme Court history, the Marshall Court hardly figures at all. According to Vinson, the history of the Commerce Clause in the Supreme Court begins with the Lochner era, which repeatedly limited the power of the federal government under the Commerce Clause, invalidating federal legislation designed to protect workers and consumers from powerful corporations. Vinson writes, “for most of the first century and a half of Constitutional government . . . the Clause was given a ‘miserly construction,’” quoting with approval a 1983 concurring opinion authored by Justice John Paul Stevens. In the process, Vinson turns the Stevens opinion on its head. Justice Stevens called the Lochner era precedents “miserly” because they departed from the Framers’ design “to confer a power on the Federal Government adequate to discharge its central mission,” and were properly repudiated on that basis, but for Vinson, the Lochner era precedents are foundational, and correct. Chief Judge Vinson looks to them precisely because they gave a cramped reading to the powers of the federal government. Guided by the rulings of the Lochner era, it’s no wonder that Chief Judge Vinson finds the Patient Protection and Affordable Care Act wanting.

Academic opinion was certainly not uniformly negative. Ilya Somin was practically giddy:

Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains the flaws in each. He had already rejected the government’s claim that the mandate is constitutional because it is a tax in a previous ruling. So far, all three federal courts that have considered the tax argument have rejected it, instead ruling (in my view correctly) that the mandate is a penalty.

This is perhaps the most important of all the anti-mandate lawsuits because the plaintiffs include 26 state governments and the National Federation of Independent Business.

....

As I have often noted in the past, this decision is just another step in an ongoing legal battle. Ultimately, the issue of the individual mandate will be resolved by the courts of appeals and probably by the Supreme Court. Still, Judge Vinson’s ruling is a victory for opponents of the mandate. It’s also extremely well-written, and thereby provides a potential road map for appellate judges who might be inclined to rule the same way.

In one of the key passages of his ruling, Judge Vinson wrote that "the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be 'proper.'" While Orin Kerr shared Ilya Somin's enthusiasm for the result of the decision, he pointed to this portion of the opinion as a "weak link" which could jeopardize it at the appellate level:

This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.

In a subsequent post, Kerr elaborated on this criticism:

The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important. In the critical passage on the Necessary and Proper clause, on page 62–63, Judge Vinson relies primarily on original meaning, specifically Federalist No. 33.

....

If you are an originalist, as many [Volokh Conspiracy] readers seem to be, this is a very appealing argument. If you’re a libertarian, as many VC readers seem to be, this is also a very appealing argument. But there’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent.... And when Supreme Court precedent conflicts with original meaning, Judge Vinson is bound to follow the former. Of course, that doesn’t mean a District Court can’t discuss the original meaning of a constitutional provision in his opinion. But where the original meaning and case precedents conflict, the judge is stuck: Because he is bound by Supreme Court doctrine, the judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning.

So, to recap: the American healthcare system is screwed-up; the Obamacare law purporting to reform the screwed-up healthcare is screwed-up; the precedents the courts are obliged to use in determining the validity of the screwed-up law reforming the screwed-up system are themselves screwed-up.

But I'm sure it'll all work out to everyone's satisfaction somehow. These things always do.

The world's attention was centered this week on Cairo, where thousands of Egyptians took inspiration from the recent popular revolt in nearby Tunisia to seek the end of President Mubarak's lengthy regime. Reliable information was at times difficult to come by, with the usual chaos of an event like this complicated by the government's near-complete shutdown of the country's internet connections. While major news outlets did a decent job, events often seemed to outstrip their ability to understand, let alone explain. Frankly, for all the Mideast experts the mainstream media trotted-out this past week, one of the best explanations of what was happening in Egypt and why was offered by Antonin Pribetic, who did with the news reports from Egypt what good lawyers do — organize, understand, and explain chaotic and fragmentary information coherently. Jamison Koehler offered a personal perspective on events in Egypt, recalling his own experiences during student protests in 1980s Germany, when troops intervened in what had been a matter handled by riot police:

After the attack, the peaceful demonstrators were quickly replaced by rock-throwing and spray-painting hooligans wearing motorcycle helmets and masks, and the city turned into a war zone.

To the surprise of my friends, who were disgusted by the government’s overreaction to the demonstration and retreated to the safety of their homes, I was completely hooked by this adrenaline-producing experience. Maybe because I was holding a camera and did not run when the troops arrived, I seemed completely immune to any harm: The troops sprinted past me to club other demonstrators. And, although I never threw a stone or lifted a can of spray-paint, I was gradually accepted into the inner group of people who were calling the shots for the demonstrators. Perhaps they too assumed I was a reporter (an American one at that), and wanted the press coverage.

The experience allowed me to witness first-hand an enormous shift in power. The government’s reaction had strengthened the hand of the demonstration’s most radical elements and, by the time the demonstrators had begun to occupy a number of vacant government buildings on the third day, the influence of those advocating peaceful demonstrations had been completely supplanted by the mask-wearing rock-throwers.

Though the outcome of events in Egypt were and remain in flux, some were anticipating and rapidly adjusting to the new status quo — whatever that might be. Charon QC passed along an internal memo prepared by noted (and ostensibly fictional) law firm Muttley Dastardly LLP; the memo outlined "Operation Pharaoh", whereby the firm plans to send a specialist garbed in complete Pharaoh kit and positioned to ensure the firm's success in the "new" Egypt:

The reasoning behind this deployment is straightforward: The less well informed other law firms are about Egypt, the more likely our own offerings to the Government of Egypt, however constituted, will, be. We have been fortunate in being able to take advice from an ex-television station reporter on the traits, knowledge and, most importantly, the dress effected by expert media Egyptologists, to ensure that managing partners of London firms will feel ‘comfortable’ with their decision to take advice from our operative on matters relating to Egypt. At the moment, we are calling our operative Jamie Ramses; the ‘Jamie’ element providing the right class note and, ‘Ramses’ providing that subtle Egypt credibility touch.

On a more serious note, the Boing Boing blog (amongst a few others) mentioned a new report from Human Rights Watch addressing one of the many probable causes of the unrest in Egypt — that "Egyptian President Hosni Mubarak's government effectively condones police abuse by failing to ensure that law enforcement officers who are accused of torture are investigated and criminally prosecuted." Officials turning a blind eye to systematic police misconduct? Police believing that they are effectively above the law? Citizens coming to understand that they may be threatened by crime but they're as likely to be victimized by the police and the "justice" system? For Americans who regularly read these Round Tuit posts and the criminal law and civil rights blogs frequently linked herein, these are themes which will seem all-too-familiar.

Will our discontent with police abuse ever become so widespread and severe that it will contribute to a general uprising like that in Egypt? That's unlikely, but it's certainly not inconceivable that if police act — and are allowed to act — violently toward us, we're going to respond in kind at some point. Some in the police, academia, and media would have us believe that several recent police deaths indicates that there's already a "war on cops" underway; frankly, I think it's more likely that they're projecting, as the evidence of a police "war on the general public" is far more substantial. Radley Balko has been a leading chronicler of the widespread militarization of police and the violence which has characterized the "wars" on gangs, terror, and drugs. This week, he debunked claims made by John Jay College Professor Jon Shane, Salon writer Amy Steinberg, and Texas Sheriff J.B. Smith that there is a trend in police deaths amounting to a "War on Cops":

In truth, on-the-job police fatalities have dropped nearly 50 percent during the last 20 years, even as the total number of cops has doubled. According to the National Law Enforcement Officers Memorial Fund, 279 cops were killed on the job in 1974, the worst year on record. That number steadily decreased to just 116 in 2009. The leading cause of death for cops on duty is car accidents, not violence. For the last several years, the number of officers intentionally killed on the job each year has ranged from 45 to 60, out of about 850,000 cops on the beat. That makes police officers about 50 percent more likely to be intentionally killed than the average American. But contrary to Sheriff Smith's claim, the job isn't among the 10 most dangerous in the country, let alone the "the top five," even if you include officers unintentionally killed in traffic accidents.

As for guns, Salon's Steinberg strangely came to her conclusion about "the pressing need to revisit the conversation on gun control" just a few paragraphs after she noted that gun sales have risen dramatically during the same 20-year period when police officer fatalities have plummeted. Last year there was an increase in officers intentionally killed on the job, from 41 to 58, which Steinberg characterizes this way: "In 2010 policemen killed on the job rose by nearly 40 percent, the greatest increase since 1974." That's true. But isn't it more significant that these numbers have dropped to the point where 17 additional deaths now represents an increase of 40 percent? In any event, 2010 also saw the smallest increase in gun sales in six years.

None of this is meant to denigrate the heroism of police officers who confront and apprehend dangerous people, and we certainly should honor and remember those who are injured or killed while doing so. But seizing on an anomalous series of terrible shootings as evidence of a nonexistent anti-police trend skews the debate on issues such as aggressive police tactics, police militarization, the use of Tasers, searches and pat-downs, and police transparency and accountability. Officer safety is important, but it should not come at the expense of the safety and civil liberties of the people they are sworn to protect.

Scott Greenfield noted that this is not the first time these claims have been shopped-around:

Police are well aware of the power of spin, and have used it well to their advantage over the years in persuading people to respect their authority. There's really nothing wrong with this, as they're promoting their self-interest and making their life, job and situation better. We all do this, whether consciously or not.

But at a time when videos reveals that those we entrust to protect and serve prefer to serve themselves first sometimes raises the stakes. When it was just our word against theirs, and law-abiding citizens would be naturally inclined to stand alongside their men in blue when challenged, the effort to remind us that we're better off calling a cop than a criminal was easy. Maybe we know too much now.

I recently bemoaned the fact that we have become deluged in police misconduct and abuse, and feared that we were becoming desensitized toward wrongdoing. While that concern remains, the counter-effort from John Jay, that hotbed of cop-love propaganda, suggests that the police remain very concerned that people are not becoming inured to police misconduct, but rather growing deeply concerned that the shield may be badly tarnished.

Let the professors from John Jay take to the airwaves and cry about a war on cops that doesn't exist. As long as there are people like Balko to debunk the spin, we'll get past it. In the meantime, maybe our daily dose of police misconduct is opening up minds about the reality on the street of police becoming a law unto themselves, putting both bodies and rights at risk.

The more the police apologists and spin-meisters whine, the more it appears they are afraid that people are seeing the truth behind the blue curtain. If the cops don't like it, then all they need do is clean up their act and demonstrate the respect for others they wrap around themselves whenever a new video of a beating comes out. If the professors at John Jay want to do some good, they could spend more time teaching respect for civil rights and less giving interviews about this non-existent war on cops.

In another post, Greenfield discussed how police department efforts to "clean up their act" by disciplining abusive cops within their ranks isn't as straightforward as it ought to be, owing to labor agreements and the arbitrators who enforce their terms:

Rank and file police officers, or as they're thought of in labor relations terms, a public employee collective bargaining unit, operate under a collective bargaining agreement. It provides for many things, from new shoes to days off to salary.

It prevents them from being questioned about their criminal conduct, whether driving drunk or shooting unarmed people for the hell of it, within a certain period of time following their seizure to having their union representative at their side. It makes the social compact, the "agreement" under which the rest of society operates, look downright tepid.

But what it does, much to the chagrin of those of us who wonder why it is that when we shoot and kill someone, we face the life in prison at best while they get a two week paid vacation, is require that the decision to terminate a police officer because of misconduct be put to binding arbitration or some civil service panel. In other words, it's not the police chief or the public that gets to dictate the outcome.

....

What distinguishes the [arbitrators] from us is that they lack our focus on cleaning up the mess of abuse and misconduct, saving human beings from the harm, maybe even death, and instead focusing on this as a labor relations issue, a question of comparative discipline between employees.

Walter Olson offered a recent case-in-point from Aurora, Colorado, where the local police chief fired an abusive cop who kneed a handcuffed woman in the face. The woman won a settlement for her injuries; a labor arbitrator awarded the terminated cop his position, with back pay:

So there you have it. Municipal taxpayers get to pay both ways — to defend against allegations that there was excessive force, and that there wasn’t. Public managers are sent the message that it’s unsafe for them to manage. Aurora residents nervous about possible encounters with the local constabulary are given fresh reason to be nervous. Is it any wonder long-overdue reform of government-employee tenure keeps returning to the national agenda?

As Greenfield noted in his post, Aurora's chief had never fired an officer before this; he asked, "Want to bet how long it will be before he [fires] another for misconduct and abuse?"

In the United Kingdom as in the United States and Canada, there is considerable attention paid by the mainstream media to legal news and issues. There as here, the reporting of legal issues by non-lawyers tends to be something of a mixed-bag, owing in part to the willingness of "legal experts" to offer soundbites on topics beyond their range of experience or in instances where they have little basis to make an informed assessment. British blogger Nearly Legal recently took issue with the Daily Mail's reporting of a domestic legal matter and suggested that the Mail's legal expert, who appears to have little or no family law experience and a limited knowledge of the facts of the underlying case, did the justice system an injustice. For these transgressions, that expert, Jill Kirby, was placed on Nearly Legal's "Naughty Step":

There is a reliable general rule that anyone quoted in the Daily Mail may be intelligent, honourable or espouse family values, but at the best only two of the three at any given time. However, the nature and billing of this particular comment has already ruled out two of the three options.

While the comment may have been sincerely meant, it would then have to be profoundly uninformed – from a ‘family law expert’. If it is not sincerely meant, then it is mere wind-baggery, such as would make most ‘experts’ blush with shame. If you are reading this, Ms Kirby, do let us know which was the case.

In the meantime, good luck with your new career. Unless that is, your new career consists of continuing to offer rubbish quotes to the Daily Mail as an ‘expert’. You are on the naughty step for adding a veneer of respectability to the Mail’s bile without respect for anyone who may read it or indeed for yourself. Think of this as an an intervention. I want you to be able to be proud of yourself. I want you to be able to say ‘I think X’ and actually mean it - both that this is the conclusion you have come to and that you have engaged in some thought along the way. It will feel good, really.

In an update, Nearly Legal noted that a similarly ill-advised opinion had been offered by one of Ms. Kirby's Centre for Policy Studies colleagues in another newspaper; this prompted Nearly Legal to wonder whether something more sinister might be afoot: "Is this a conspiracy or does the Centre for Policy Studies have a superfluity of such wind bags?" Charon QC suggested that the poor reporting by the Daily Mail and the Centre for Policy Studies' "experts" are but another example of a larger, more troubling trend of sensational and inaccurate legal reporting in the mainstream media:

Unfortunately for the media, in the matter of law, if we are to have a credible rule of law of any meaning, it is important that law and legal events, judgments and the like, are reported accurately and fairly. One could add to this the old fashioned concept of responsible reporting. The disgraceful coverage of the Yeates murder case and the smearing of the reputation of the landlord – who, presumably, will be cleared and released from police bail soon, given that the police have found another suspect to arrest? – is illustrative of a creeping modern trend.

It is bad enough when journalists, many without any formal legal training, misreport on the law – but when weight is added by so called pundits and experts to an erroneous report, the offence to accurate and fair reporting is compounded. When those experts are lawyers – it is, frankly, unacceptable.

Perhaps on both sides of the Atlantic, slapdash reporters and their pet legal experts need a kick in the pants (once they get off the Naughty Step, that is). A kick in the pants can do wonders, as Eric Mayer has learned:

I don’t remember the Mr. Nice bosses I’ve had. They were flaccid and ineffectual, and nothing remarkable came from their safe leadership. I do remember the ones who put a boot in my ass on occasion.

I needed it. I admit. Like most humans, I have a predisposition to being a lazy procrastinator.

....

For those of us who choose to depart from the world of oversight, the seeking of an occasional kick in the pants must come from within. It hurts to read about somebody who is doing something for a client that we should do, but aren’t doing. We feel like crap (or, we should). We must force ourselves to hear about people who do this job better than us, and we must hear the voices of those who demand accountability among our profession–regardless of the hit to our emotions or ego.

When you get pissed off because of criticism, get pissed off at yourself, not at the person delivering it. Get pissed off because of the time wasted on inconsequential bullshit when it could have been used on people paying you to save their life. Get pissed off when you realize that a bit more legal research could have suppressed that confession. Get pissed off when you fail to achieve the standards that people need you to achieve. You know you’re wrong. We are all wrong at some point. The question is, are you capable of catching yourself being wrong or accepting others calling you out for it?

Why the rant? Here lately, all of my new clients want my help to correct previous legal actions. They need the help because their previous attorney at court-martial or administrative proceeding screwed them. Rather than taking the harder steps, the lawyer sought the easier slide. Battles that should have been fought were bargained. In some cases, they were told that fighting would only delay the inevitable. It makes me sick.

While Mayer's "boot in the ass" is largely metaphorical, Mike Cernovich recommended actual physical conflict. Discussing a few of the lessons in the well-known novel and movie Fight Club, Cernovich wrote that we should "go start a fight":

In the United States, there is a unifying culture - a national motto. It works to the advantage of criminals on Wall Street and government. It allows political insiders to loot and rape with impunity. The national motto has even achieved a moral status, with those rejecting it facing judgment from those who treat it as the First Commandment.

"I do not want any trouble."

People pass through the streets anonymous and terrified of confrontation. When I confront someone for cutting in line, my companions invariably tell me that I've embarrassed them. Or that I'm going to be shot. They, being slaves and supplicants, never consider that it's the other guy who should be worried about me.

"Please, please, please just mutter under your breath. We will whisper to one another about this breach of the social contract. We will not talk loudly enough for our voices to be heard. We don't want any trouble.

Well, fuck you all. I want trouble.

....

Fighting is never pointless, as its goal is the training of fighters. "In the mountains of truth you will never climb in vain: either you will get up higher today or you will exercise your strength so as to be able to get up higher tomorrow."

Today in the United States, there are many things worth fighting for. Wall Street bankers have stolen your money. TSA officials list sexual assault as resume bullet point. The United States government wants an Internet kill switch, silencing all who would dissent

There are many fights, but there are no fighters. You are not ready. There is only one way to prepare for a fight, and that is to start one.

Mirriam Seddiq, who can match Mike Cernovich or anyone else on Earth four-letters-word for four-letters-word, took his words to heart and considered the value of struggle:

Ever since Mike at Crime & Federalism wrote about raring for fights and Fight Club (one of my favorite books). I told him that sometimes it's hard to find a good fight, and even the fight with yourself just doesn't seem worthwhile. Mike wrote another post about running up a steep hill. Well, it's more than that. But you should go and read it for yourself because the premise is that a fight with yourself is always worthwhile. It is what muslims call the greater jihad. It's the one within yourself, the one with temptations of the world and what you know is good for you versus what you want despite how it might affect your humanity - KFC versus a home cooked piece of chicken from the farmer's market, or smoking that cigarette vs. going for a run, or being faithful to your wife instead of fucking your 24 year old secretary. You get it, right?

So Mike writes the posts and I think about them. That's what good writing does to you, it is supposed to make you think, and not just think "wow, what a good piece of writing" but the written word actually makes an impact on your brain and maybe on your actions in the future.

....

In 2008 when my boys were 14 months old I ran a marathon. Honestly, 'run' might be an exaggeration, but I completed it. While I was training all I kept thinking is "I was on bedrest for 16 weeks, I had twins, this is nothing." Now, when I think of trying to make it, to build a business and do right by clients at the same time I think "I couldn't have kids and I did, I can do this."

So yeah, that's it. Today I signed a lease on a bigger office in my same little office building. It's not much bigger and it's not much more expensive, but I'm outgrowing my current teeny office. I'll bring my little coffee pot upstairs with me and while I'm not so sure what the next year - fuck it, I don't know what the next week will bring, I'm going to keep on keeping on. Because Mike is right, the fight with yourself is always worthwhile.

Fights worth fighting are never in short supply; if, as Cernovich and Seddiq suggest, even the fights not worth fighting are still of worth, the supply is greater still. For the many who, like me, have sought to get along whatever the cost, it may just be that we've not yet understood how high that cost truly is. In Egypt this week, thousands of people with everything to lose demonstrated that getting along only gets you so far. The day may come when we too need to fight. If we can accept that possibility — even if we're not yet willing to call it a likelihood just yet — it makes sense to prepare ourselves while we have the time and opportunity to do so.

Finally, to digress for a moment, let me admit that I'm not a religious person generally — and what religious sympathies I have aren't for any flavor of Christian faith — but I do have an abiding love for the language of the King James Bible. In places it's pretty compelling stuff and parts of it are pure poetry. That being said, my readings are superficial ones which appreciate language without really internalizing meaning; still, as with any good book (lower case there), some passages remain in memory more than others.

For me, Psalm 119 is such a passage. When Antonin Pribetic composed (in response to a Scott Greenfield post) a "Law and Justice Version" of Psalm 119... well, let's just say that if I had a physical copy of the Bible, I'd replace its Psalm 119 with his. As I don't have a Bible, I'll have to be content with cross-stitching it on a sampler and keeping it in a place of honor in my Hello Kitty hope chest. To excerpt parts of it here and there would be a sacrilege. This is simply the best post I read this week; please go and read it in its entirety. Peace be with you.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., The Wall Street Journal, IdahoStatesman.com, and Paris Odds n Ends Thrift Store.

Collectively We Enjoy a Waking Dream

Gideon hosts, as he often has, a Dr. Martin Luther King, Jr. Day edition of Blawg Review this week at his A Public Defender blog. Gideon's written in past years of the lessons he's drawn from Dr. King's words and efforts and Blawg Review #294 is a worthy addition to his remarkable series of annual posts. Highlights of this edition include posts concerning the price and value of freedom, the right and wrong meanings drawn from King's words, and the real-world consequences of poorly-considered state bar rule changes. Kevin Thompson, a former Blawg Review of the Year honoree, will host next week's Blawg Review #295 at his Cyberlaw Central blog.

TGIS: Thank God It's Schadenfreude! (303)

This week's joy in the misfortune of others comes courtesy of The Telegraph (from Saturday, January 8; link good at time of posting):

The North Korean government's official Twitter account appears to have been hacked, with the feed calling for an uprising to remove the leaders from power.

The microblogging site ranted to its 11,000 followers about huge spending on nuclear weapons and leader Kim Jong-il's lavish drinking parties "while 3 million people are starving and freezing to death."

....

The tweets, in Korean, were unlikely to harm the internal image of the country, as internet access is widely prohibited.

However, the hacking will come as an embarrassment to the regime – especially as Saturday was thought to be the birthday of Kim Jong Un, the man believed to be poised to take over.

....

One tweet from @Uriminzok on Saturday read: "Let's create a new world by rooting out our people's sworn enemy Kim Jong Il and his son Kim Jong Un!"

Though it remains uncertain who coordinated the breach, South Korean citizen media sites and the Yonhap news agency attributed the scheme to South Korean hackers.

[Previous TGIS]

A Round Tuit (52)

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:

• 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.

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.

....

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.

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:

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.

....

It’s enough to restore one’s faith in humanity.

At the Popehat blog, Ken wrote of Green and his wife Roxanna:

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.

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.

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:

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.

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.

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:

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.

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.

Brian Cuban suggested, however, that public tolerance for broad First Amendment protections — for others' speech, mind you — was ebbing in the present climate:

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."

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.

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:

I am, believe it or not, a sane person. I do not want people to die.

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.

Often.

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.

Scott Greenfield also wrote that efforts to calm political speech are misguided:

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.

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.

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:

[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.

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."

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 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.

....

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.

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:

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.

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.

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:

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.

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.”

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:

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.

....

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.

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.

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.

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.

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).

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.