TGIS: Thank God It's Schadenfreude! (342)

This week's joy in the misfortune of others comes courtesy of the Above the Law blog (from Tuesday, October 18; link good at time of posting):

[T]he whole sad experience of getting a legal education in America suddenly has a new mascot.

Today we have a flyer from a group of three 1Ls who want to hold “tryouts” for the other two members of their study group. We’ve seen this type of thing before — remember the study group at a top-ten law school that required a transcript? — but this latest application process takes things to another level.

This study group wants to charge people $20 for the opportunity to try out….

I really hope that after this flyer gets publicized, the 1Ls hastily put together some kind of “ha ha, we were only joking, aren’t we so clever” message or something. Because I can contemplate the tools that would put this together, but I’d never want to meet the psychos who would stand behind this after public scrutiny. Here’s the flyer:

They misspell the word “SUCCEED.”

[Previous TGIS]

A Round Tuit (63)

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

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

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

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

Initially, Swartz registered an account on the MIT network using a false name; from that account, he ran a script which began mass-downloading articles from JSTOR. When JSTOR blocked his access, it is alleged that Swartz escalated his efforts. Timothy Lee described the facts alleged in the criminal complaint against Swartz:

[T]here followed a game of cat and mouse in which Swartz repeatedly changed his IP and MAC address to evade JSTOR and MIT's efforts to block access. Swartz also bought a second laptop to speed up the downloading process. Finally, on October 9, JSTOR gave up and and blocked the entire MIT campus from using JSTOR.

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

Swartz entered the networking closet for the last time in January. The complaint describes the scene: "As Swartz entered the wiring closet, he held his bicycle helmet like a mask to shield his face, looking through ventilation holes in the helmet. Swartz then removed his computer equipment from the closet, put it in his backpack, and left, again masking his face with the bicycle helmet before peering through a crack in the double doors and cautiously stepping out."

In a second post, Lee criticized Swartz' "reckless activism" as counterproductive to his objective — to bring greater transparency to government and the law:

[W]alking into someone’s networking closet and hooking your equipment up to a switch without permission is almost never OK, and it’s definitely not OK if the objective is to evade the network owner’s previous attempts to block you from the network. The conflict between Aaron and JSTOR led to the entire MIT campus being cut off from JSTOR access for several days, doubtless affecting the productivity of hundreds of MIT scholars.

But the more lasting cost of Aaron’s actions will likely be to the reputation of the open access movement. Open access advocates have the natural high ground and are gradually winning the debate over the future of academic publishing. Change comes slowly, but things have been changing. Aaron’s actions are likely to slow that progress by allowing the bad guys to lump open access advocates in with malicious clowns like LulzSec. The incident makes JSTOR look like an injured, even magnanimous, party and gives them an excuse to make their policies more restrictive.

Swartz was previously implicated in a mass-downloading of documents from the PACER legal database. In that instance, federal authorities did not charge him with criminal wrongdoing; though she believes that he should not have been charged in this instance either, Katherine Mangu-Ward noted the difference in character — if not in substance — between the two data grabs:

Swartz had to sneak in and out of server closets to do the JSTOR scraping, which makes the whole thing seem seedier and more illegal. But the differences between the PACER grab and the JSTOR grab are less about how he got the data than what kind of data it was, and what he did with it. In both cases, he seems to have done little more than violate the sites' Terms of Service to get the docs....

Max Kennerly attempted to deconstruct the charges against Swartz and concluded that the prosecution amounted to "a civil claim that some overly aggressive prosecutor is trying to dress up as a federal crime":

I don’t see what societal interest [prosecutor] Carmen Ortiz think she’s vindicating with the Swartz indictment. According to Demand Progress, JSTOR already settled their claims with him. What more needs to be done here? The “criminal violation” here arises not from any social duty — like, you know, our society’s communal prohibition on murder — but rather from Swartz “exceeding the authorization” imposed by JSTOR on its servers.

....

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

....

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

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

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

....

The indictment says the Swartz used throw-away email addresses, automated download scripts, IP spoofing, and MAC-address spoofing. Big deal: there’s no dispute that Swartz was permitted to access the information in question.

I'm certainly not an expert on federal criminal law generally or these statutes particularly, but this all seems to rely on a number of assumptions and to downplay a few key facts. First, Kennerly accepts Swartz' assertions that no fraud was intended and discounts the complaint's characterization of the copied information as "things of value". Neither is necessarily correct. In mass-copying the JSTOR-maintained articles, Swartz' primary objective seems to have been to "free" the information for much wider user; to do that, he sought to deprive JSTOR of the revenues they were entitled to receive. Even if one dismisses the value of the information itself, those revenues certainly seem to qualify as value.

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

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

In fairness, despite the length of Kennerly's post, a blog post by its nature necessarily tends to simplify complex arguments; there is likely more to his arguments and to the applicable law than I'm reading. Notwithstanding my criticisms, I generally agree with his conclusion — that this prosecution is misconceived and disproportionate to the harms allegedly caused. Brett Trout is, like Kennerly and myself, bothered by this prosecution. He discussed why it serves no worthy purpose and, corrupt or not, is a misuse of prosecutorial authority:

Criminals commit hundreds of cybercrimes daily, many involving the loss of hundreds of thousands of dollars. Why is the government going after a case involving an academic, involving what appears to be nothing more than speculative damages? According to Swartz’s website, he downloaded the materials to investigate the source of funding for the academic papers. Swartz authored numerous articles investigating the “corrupting influence of big money on institutions, including nonprofits, the media, politics and public opinion.” Knowing that a study was financed by a large entity seeking to sway legislation, would certainly be of interest in weighing the study’s merits. The fact that funding sources may not be readily apparent, may have even more impact on the study’s credibility. Exposing funding sources is, from the public’s perspective, a laudable endeavor.

My own experience requesting the federal government to pursue alleged corporate espionage, lead me to believe the agents handling cybercrime matters did not have much interest in pursuing a criminal case, even where hundreds of thousands of dollars in damages were involved. Why single out Swartz? Swartz’s history of investigating corruption may not have played a role in his indictment, but misconduct by federal prosecutors is not unknown, and they are very rarely held accountable for their misdeeds. Are the federal prosecutors in Swartz’s case corrupt? Unlikely. More likely, prosecutors are doing what they are told, prosecuting the case assigned. The real question is who ultimately decided to redirect vast taxpayer resources to this particular academic, and why? The benefit to JSTOR and the in terrorem benefit to the corporations funding the studies is obvious; the benefit to the American taxpayer is unclear.

Prosecution or persecution, David Fagundes suggested that the government, in allying with the content industry, has come to regard physical and intellectual property as the same, without regard to the fact that the latter can, as in this instance, be non-destructively copied. Whatever the merits of such a stance, he wrote that with prosecutions like Swartz', the government isn't winning the hearts and minds of the general public:

The Swartz arrest is just one in a series of episodes that emblematize the growing rift between content industries (who push for, and usually get, legislation expanding and protecting their rights) and groups concerned about internet freedom (who almost always manage to stay a step ahead of attempts by industry and government to create free access to content). Part of this rift is a war of words—are the Aaron Swartzes of the world dirty thieves or valiant freedom fighters?—but this war of words affects social norms about the morality of intellectual property. However much government and industry may win legislative battles, these wins may be hollow if they don’t convince the general population that infringement (or, in the Swartz case, other information fraud crimes) are morally important.

Gideon characterized the case as "the new Lori Drew", referring to a 2008 prosecution founded in part upon the defendant's creation of false credentials on MySpace, in violation of that site's terms of service. He wrote:

While the event was tragic, a crime it was not.

And here we have essentially the same dilemma. Just how do the Feds have jurisdiction? Swartz was in the JSTOR building while he was “hacking”. It’s like me stealing from your house and being indicted for wire fraud because I took this nice vase that your Aunt Maude sent you from her old person’s home in Peoria.

I think that's reaching a bit. In the Drew case, the violation of the terms of service — her "unauthorized access" to MySpace — was incidental to the acts which led to a tragic result; prosecutors, stretching to find any way to charge her seized upon those terms to try to create something from nothing. Here, the unauthorized access was much more egregious and is instrumental to the crimes charged. Perhaps it's just a matter of degree, but I don't feel that this is as unsupportable as the Drew prosecution was.

Scott Greenfield discussed why he believes the charges have some merit but the prosecution is nonetheless inappropriate:

According to the indictment, the plan was to download whatever he could get his hands on so that they could be offered free to the world. Swartz would take what JSTOR had to sell and give it to all. Robin Hood of the internet.

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

....

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

....

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

At the same time, this prosecution seems to be nothing more than a vindictive act by the government, given JSTOR's agnostic, at worst, stance toward Swartz. They worked it out and the story should have been over. It's just that the government can't let it go, given that they finally have a case against a targeted individual. Vindictive prosecution, no matter what the underlying wrong, is a due process violation.

Greenfield suggested that that vindictiveness stems from Swartz' earlier, unpunished mass-copying from the PACER database. As I read commentary on this case this past week, several writers attempted to find a more benign explanation for prosecutors' different treatment of the two matters; some speculated that the contents of the two databases somehow mattered to them. Whereas PACER contains public domain legal documents, the contents of the JSTOR database includes numerous copyrighted works (although the various authors, rather than JSTOR, would own those copyrights). Personally, I don't think that that's either a relevant difference or the explanation for the decision to prosecute Swartz this time around. Whether it's vindictiveness or merely part of a broader trend of overprosecution of relatively inconsequential offenses, I think it's giving the feds too much credit to presume that their decision was so nuanced.

Although he doesn't suggest that the copyright distinction between PACER and JSTOR accounts for the decision to prosecute Swartz, Mike Masnick wrote that copyright is conspicuous by its absence in the complaint:

It's a standard claim from copyright maximalists that downloading anything without permission is "theft," even though the law is clear that infringement and theft are two different things. But... in reading and discussing this, we missed out on one very important point, that Mike Wokasch spotted: with all the things in the indictment, one thing that's missing is any copyright infringement claim. If you're going to talk up the "theft" angle, why not at least include a copyright infringement claim? Perhaps it's because the government knows that it would lose on that claim badly. Once you're on the MIT network, you are allowed to download these works. Thus, there's no infringement at all. That's a big problem for much of the case against Swartz, but the feds seem to think they can use the circumstantial evidence unrelated to the actual computer usage to convict Swartz by inference.

I think that there's something to this. Under copyright law (17 USC §101), "compilation" is defined as "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." I've never seen, much less used, JSTOR, so I can't suggest whether or not it "selects, coordinates, or arranges" academic articles sufficiently to merit copyright protection. I'll allow for the possibility that it does and that the government could take a hard look at whether Swartz infringed the database's copyright, regardless whether he infringed the copyrights of the articles he downloaded. Why then is there no mention of copyright in the complaint? This inquiring mind wants to know.

As Masnick noted in another post, in this ongoing struggle between copyright maximalists and minimalists, the maximalist-allied government might be facing a Pyrrhic victory with this prosecution. Responding to it, another activist has uploaded a quantity of public domain JSTOR contents, with a lengthy and persuasive explanation of his reasons for doing so:

If it's true that Aaron Swartz's foray into an MIT computer wiring closet was as part of a project to copy JSTOR research and upload it to file sharing sites for open access, then I imagine part of the government's rationale for going after him would be the hope that it would act as a deterrent against anyone else doing the same thing. Of course, as I've pointed out with the feds' attempt to arrest members of Anonymous, it seems likely that this move will backfire in a big bad way. All it does is draw much more attention to the original goal. Indeed, Adam points us to the news that a guy by the name of Greg Maxwell just released 33GB of JSTOR scientific papers via The Pirate Bay because of the indictment against Aaron.

And so the struggle continues....

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

Scott Greenfield was unsparing in his criticism of Gerard Marrone, the defense attorney who withdrew this past week from his representation of accused murderer Levi Aron. Aron is charged with the shocking and gruesome murder of Leiby Kletzky earlier this month. In withdrawing, Marrone said that the allegations were "too horrific" and that he could not continue to represent Aron. Greenfield wrote:

No one could have forced Marrone to be Aron's lawyer, and few would blame him had he refused the case at the outset. Having undertaken the representation, however, his duty is to see it through. The time to make the decision of whether the crime is too distasteful is in the beginning, before signing on. Once in, there is no right to simply walk away when it becomes unpleasant. This is the life we chose. This is the path Marrone chose. It doesn't include an option of walking away whenever the mood strikes.

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

....

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

In the bio on Marrone's website, he calls himself "Gerard 'No Fear' Marrone." He may wish that people think of him that way, but there will be one thing that will follow him, haunt him, for his decision to walk away from this defendant, charged with this horrific crime. It's that he's a quitter, that he cannot be relied upon to stand firm and fulfill the obligations he willingly took on, even though it means that he must steel himself to the challenge of representing the worst among us.

Rick Horowitz wrote about the duty of loyalty Marrone owed to his client:

[American Bar Association Model Rules of Professional Conduct] Rule 1.9 makes it clear that while some of a lawyer’s duties to his client may dissipate, or even disappear, with time, the duty of loyalty does not. Obviously, the duty to represent a client competently and zealously no longer exists once you cease to represent the client. The duty of loyalty, however, persists. In fact, as both Mark Bennett and Jeff Gamso point out [in discussing David Martin, who represented Cameron Todd Willingham], the duty of loyalty persists even beyond the death of the client!

The core of the American system of justice relies upon sound legal ethics. As I noted in my own comment on Scott’s blog post,

Look at any failure in the system and it is almost always traceable to an ethical failure on the part of a lawyer (defense or prosecution), judge, or juror.

Arguably the most important of these failures is the failure of duties of loyalty. Prosecutors owe a duty of loyalty, first to the Constitution and the laws and secondly to “the People” — frankly, I think there’s a built-in redundancy there. Judges, similarly, owe a duty of loyalty to the Constitution and the laws. Only the defense attorney’s duty differs: defense attorneys owe a specific duty of loyalty to specific individuals first — and to the court, the Constitution and the laws second (or third, or fourth, or ….).

By putting his own interests ahead of his client’s, Marrone has failed in his ethical obligations to all parties and to the American system of justice.

The unpleasant business of separating bad lawyers from the profession might see some questionable changes, in Iowa at least. Nathan Koppel reported that the state is considering a change whereby lawyers could avoid having their sanctions (and bad behavior) made public, in exchange for surrendering their licenses to practice:

The proposal makes a certain amount of sense in that state bars are notoriously understaffed, making it hard for state bars to vigilantly police lawyer misbehavior, particularly when it comes to more high-profile lawyers, who have the means to fight ethics investigations for years on end.

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

....

Mark Bowden, who oversees the discipline of physicians in Iowa, told the [Des Moines] Register that lawyer misconduct should not be kept secret. “I don’t know what they’re trying to achieve by that. Limit the notoriety of cases, I suppose,” Bowden said. “I would think they would have to make that information public.”

Larry Ribstein is, as most ethical lawyers probably will be, pretty nonplussed by this proposal and the prospect that this "sweep it under the rug" approach might catch on elsewhere. He suggested, however, that it isn't much worse than the current system and wrote about the "mirage of lawyer discipline":

The bottom line is that under the current setup, once you get your ticket of admission into the bar by graduating from an accredited law school and passing a bar exam you get a lifetime monopoly of purveying legal information with little scrutiny. Even if the Iowa proposal to trade transparency for speed can be defended by necessity, this necessity is itself created by the inherent inadequacy of state supervision of lawyers.

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

....

Some folks (mostly lawyers) would respond that markets would be inadequate to cope with the horror of “legal” advice rendered by non-lawyers. But can this really be worse than forcing all consumers of legal information to rely solely on a lawyer’s shingle behind which any sort of person may lurk?

One bad lawyer who will never be able slink-off into anonymity is Joseph Rakofsky. As George Wallace noted in his eighth round-up of Rakofsky v. Internet news and developments, Rakofsky has now progressed from incompetent lawyer to cautionary tale to Streisand Effect poster child to internet meme.

Unlike Rakofsky, there are some bad lawyers who will be missed. Well, one. Bad Lawyer announced the end of his widely-read namesake legal blog this past week. He wrote:

In the last two years I documented the course of my disciplinary process... my legal proceedings, my prison sentence for attempted tax evasion, my probation and finally my return to work. As I write I do not know if I will ever be reinstated as a lawyer. I don't want to be grandiose, but I did view the law as a calling, one that I often loved as an advocate, hated as a unwilling businessman, but was privileged to practice from November 1982 till December of 2009.

....

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

I have some other things, other projects, and a life with my family to live. I'm now letting go of the "past" absolutely.

He was a writer with a unique point-of-view on the profession and the justice system. I'll miss his voice and I'm not alone in that. Bruce Carton probably spoke for many when he wrote:

Bad Lawyer has been a consistent source of interesting and outrageous legal news for [Legal Blog Watch] and for the blogosphere over the past two years. Thank you, BL, for your work on the Bad Lawyer blog over these years and best of luck to you as you move on.

Scott Greenfield offered the most insightful tribute I read:

Having been around the blawgosphere for a while now, I've come to view it as largely destructive. Too many lawyers spreading too much misinformation sprinkled with self-aggrandizing pap. Some are too cynical. Some aren't cynical enough. Some reveal that they're not particularly bright, and most demonstrate a scary lack of grasp of the law. There's an awful lot of that, and the public's ignorance of the law is furthered by lawyers' ignorance of the law.

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

....

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

....

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

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

David Lat related a story told to him (and others) by Ninth Circuit Chief Judge Alex Kozinski:

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

....

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

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

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

Ain’t America grand? This is a wonderful immigrant success story.

Though I'm not a great fan of mediation, thankfully I've never had one like Popehat's Ken did recently. He memorialized his misadventure in a one-act play and it's well-worth a quick read.

David Fagundes is, like me, a fan of the Beautiful Game. He has, unlike me, thought about what diving (exaggerating contact to draw a foul) says about different cultures' beliefs concerning the morality of rule-breaking:

What interests me about this reaction to diving is how pronounced it is among some sports fans, and how subdued it is in others. Some soccer cultures regard simulation as the sporting equivalent of murder (morally reprehensible regardless of whether you’re caught doing it), while others regard it as the sporting equivalent of jaywalking (illegal, and not a good idea, but something you might do every so often if you think you can get away with it and it gains you some advantage). I examine this puzzle in more detail, and pose some conjectures about resolving it, after the break.

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

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

This same moral outrage does not seem to characterize soccer fans from South America or southern Europe (disclaimer: I’m well aware that I’m making massive generalizations when speaking about these phenomena at a national level; my claim is only that they are true in my experience and at a very high level of generality). People from these countries don’t seem to love it when opposing players seek to gain advantage from diving, and I’ve seen them express frustration at particularly egregious instances of simulation, but neither do they treat it as the ethical abomination that Anglo-American soccer fans tend to.

Finally, while we're speaking of soccer-related abominations, I'll throw in a self-serving plug for the English Premiership fantasy league I'm organizing for the coming season (which begins on 13 August). Our league will be a head-to-head one and to ensure some robust competition, I'm hoping to add a couple more to the group already assembled. To get a sense of what the game will involve, you can visit the EPL's fantasy game site, through which our league will be run. The group thus far is a nice mix of lawyer and non-lawyer football aficionados; if you enjoy the Beautiful Game (the English professional version of it, anyhow) and are interested in joining us, drop me a line at colin@infamyorpraise.com.

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

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

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.

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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.

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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.

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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.

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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?

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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.

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[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.

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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.

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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.

A Round Tuit (61)

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.

Whatever one's views on the advisability of single-payer healthcare or a mandated health insurance scheme, the manner in which the Obamacare plan was adopted and is being defended in the courts should be of concern. Several challenges to the law have been heard by various courts and to say that divisions amongst them are apparent in those decisions would put things mildly; appropriately for a legislative enactment like this one, these divisions surely will someday be resolved by the Supreme Court.

Meanwhile, without a consensus amongst the lower courts, we're left to interpret these decisions like tea leaves, searching for portents of the SCOTUS' eventual ruling. Somewhat troublingly, to this point ideology has been an effective predictor of judges' decisions, with Democrat-appointed judges finding Constitutional bases to uphold Obamacare and Republican-appointed ones finding it to be unconstitutional. It's noteworthy then when, as this past week, a Sixth Circuit judge applauded by the conservative legal movement cast the deciding vote in a 2-1 decision upholding the individual mandate. Orin Kerr wrote:

Of all the judges tasked with assessing the constitutionality of the individual mandate, the one to watch so far has been Judge Jeffrey Sutton of the Sixth Circuit. As some readers know, Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular “feeder” judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate. In light of that, I think the important aspect of today’s opinion from the Sixth Circuit is that Judge Sutton concluded that the mandate is constitutional.

Ilya Somin also noted the importance of Sutton's vote, as well as the implications of the majority's take on the central activity/inactivity Commerce Clause question:

Up until now, judges’ votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold it. Even in the Sixth Circuit, two of the three judges fit the same pattern (Judge Boyce Martin, and Judge Graham in dissent). But Judge Jeffrey Sutton, a well-known conservative judge has now become the first exception to it. Like Martin, he voted to uphold the mandate as an exercise of Congress’ powers under the Commerce Clause.

At the same time, Martin and Sutton’s opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is “economic activity,” Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect.

The Martin-Sutton approach thereby opens the floodgates to an unlimited congressional power to impose mandates of any kind. Any failure to purchase a product has some substantial economic effect, at least when aggregated with similar failures by other people.

Commenting on the court's inactivity-as-economic-activity (il)logic, Aaron Worthing expressed the sentiments of many on the libertarian-right side of this debate (but did so more entertainingly than most):

So…inactivity is activity? Well, this is how they try to fudge it:

The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan.

So by that logic, there is no such thing as inactivity. I am right now engaged in the following activities: not buying a car, not buying a video game, not buying food, not buying the services of a prostitute… and so on. The mind boggles.

Peter Suderman suggested that reasoning like the Sixth Circuit's takes seemingly plain concepts and words into a realm of nonsense:

So how did both Sutton and Martin arrive at the conclusion that the non-purchase of health insurance was an activity over which Congress has regulatory authority?

According to both judges, failing to purchase health insurance is still an economic activity, and therefore subject to Congressional mandates, because the mandate simply regulates the time at which an individual will inevitably pay for health care.

....

The definition of economic activity here has been stretched to the point of meaninglessness. By this definition, the non-purchase of health insurance is an economic activity regardless of whether one chose to do it, regardless of whether one made other plans, regardless of whether one did, said, or thought anything—or nothing—at all. There’s no action required, no intention or choice; it applies to everyone solely by virtue of their existence. It is a strange sort of activity that does not require one to do anything at all in order to participate.

Ilya Shapiro was even more blunt in his criticism of Sutton's decision:

Today’s 2-1 Sixth Circuit Obamacare decision was an exercise in unwarranted judicial deference, not by the author of the majority opinion, Judge Boyce Martin, who regularly rubberstamps misuses of federal power, but by concurring Judge Jeffrey Sutton, who avoided the logical implications of this ruling and punted the main issue to the Supreme Court. Under a document establishing a government of enumerated and therefore limited powers, the burden is on that government to prove that it has the power to do something, not on the plaintiffs to disprove that power. Never has the Supreme Court ratified the federal power to force someone to buy a product in the marketplace under the guise of regulating commerce. Indeed, never, not even during the height of the New Deal, had Congress asserted such a power—until the health insurance mandate.

To allow such a power now is to read out of the Constitution any structural limitations on federal power, which, as Justice Kennedy reminded us for a unanimous Supreme Court two weeks ago in Bond v. United States, are the Constitution’s first and greatest protectors of liberty. While a progressive like Judge Martin could be expected to accept any exercise of federal power, it is shocking that an avowed constitutionalist like Judge Sutton requires Congress to show only a rational basis behind what it does—a “reasonable fit” between the means it chooses and the ends of regulating interstate commerce—to survive constitutional scrutiny. Under such logic, Congress can do anything it wants so far as it is essential to a larger regulatory scheme. That cannot be the law.

Randy Barnett disagreed with the majority's reasoning, but he suggested that those who saw the Sixth's ruling as a catastrophe for Obamacare's opponents should take a closer look; he identified eight aspects of the decision (well, after a correction, seven) which should be taken into account, including the divisions even within the three-judges panel which heard this challenge, their recognition of both the unprecedented scope of the mandate and the standing of these claimants (and others) to change it, and their rejection of the tax power arguments advanced by the government. Barnett discussed Judge Sutton's theory of facial challenges and predicted that his reasoning and his centrist position will not carry the day before the Supreme Court:

According to Judge Sutton’s view of facial challenges, the mandate is constitutional as applied to anyone who already has insurance. Having once voluntarily chosen to get insurance, they can be mandated never to stop. Like the Roach Motel, once citizens check into the health insurance market, they can never check out. This implication of Judge Sutton’s analysis is a sign of its weakness, and why it won’t be adopted the Supreme Court.... But the key is that his view of facial challenges was crucial to his decision, because it allowed him to avoid the hardest issues posed by the mandate: compelling citizens into a market – here the insurance market – who are not currently in that market.

....

This would be a radical conclusion I doubt the Supreme Court will adopt. By the time it reaches the Supreme Court, Judge Sutton’s analysis of facial challenges will have been thoroughly vetted. In the end, the choices for the justices will be between something like Judge Martin’s opinion or Judge Graham’s. The “center” will not hold.

As we commemorated the anniversary of our Declaration of Independence this past weekend, many around the legal blogosphere took the occasion to discuss that document and the Constitution which grew from its stirring words. The latter is, of course, the cornerstone of American law and thus American (and America-interested) legal discussion online, inspiring endless debate and interpretation. The former is, in the best sense, a relic unchanged by the passage of time.

Left or Right, Democrat or Republican, we're all Declaration of Independence originalists; what's more, you don't hear too many people (other than a few who watched just a bit too much royal wedding coverage) suggest that the Declaration was a poor decision and we should've stayed British. Its words are, to my ear, pure poetry and several legal bloggers posted its full text on the Fourth. Ken Kersch considered the deeper meaning of the Declaration's moral political philosophy and its continuing influence on conservative political and legal thought; while I think he he gives short shrift to the progressive ideals expressed in the Declaration, as a meditation on the roots of principled conservatism, it's worth a read:

In my fifth of July posting, I thought I would focus on the Declaration of Independence, not in its 1776 incarnation, but as a touchstone for political and constitutional argument for succeeding generations. Of course, there is a long history to this, most famously, perhaps, Elizabeth Cady Stanton’s Seneca Falls Declaration (1848), the political thought of Abraham Lincoln and Frederick Douglass. But it extends well beyond this, to legions of everyday people, in the normal practice of politics, making claims on behalf of their God-given natural rights.

....

The Declaration is serving as an important touchstone today for conservatives.

....

Lincoln... effectively synthesized the claims of Reason and Revelation... emphasizing the nation’s foundations in the unwavering, timeless truths of God (as opposed to the simple will of the people, by majority vote). As such, the integration of the (timeless/eternal/God-Given Truths) of the Declaration into the Constitution redeemed the American Founding. Only those that “hold these truths” have the firm grounding necessary to oppose slavery -- or (Godless) communism, with its constitutionally unlimited state (or abortion, or homosexuality, or gay marriage, etc.). Secular, relativist, positivist liberals and progressives lack this firm grounding. In this, they are like Stephen A. Douglas, with his theory of popular sovereignty (though Douglas was no relativist: he simply believed that politics could be separated from morals). Liberals and progressives aren’t committed to the principles of the Declaration, as redeemed by Lincoln. As such, they betray the Founders, and the great cause of the Civil War (as philosophized by Lincoln). The result is perversion, degeneracy, and decline.

Turning to the Constitution, several legal bloggers discussed various threats to the Bill of Rights generally and the First and Fourth Amendments particularly. Commenting on a recent Tennessee legislative effort to ban offensive speech, Rick Horowitz wrote that such misguided lawmaking is an affront to American ideals:

This July 4, as we continue to celebrate the birth of our Nation long after the death of the document that created it — and as I sit down to write a few possibly patently offensive statements about that — I find it particularly appropriate that Tennessee has decided to go after one of the two remaining Amendments in the Bill of Rights that the United States Supreme Court has not yet seen fit to officially obliterate.

....

The scariest part of the story, though, came from one of the co-sponsors of the bill:

In his opinion, Rep. Moore said the law does not violate any constitutional protections, including freedom of speech.

“When you get into crossing the line so to speak you do not have a right to impose your speech on other people,” he said.

That’s right. Moore thinks the law restricting speech doesn’t violate the constitutional prohibition on limiting freedom of speech.

....

So if the government wants to stop you from saying things that some government official wouldn’t want to hear, then that shouldn’t count as a restriction on freedom of speech, right?

Or, to put it more colloquially, “Freedom of speech? F*ck freedom of speech!”

Happy Birthday, America.

Both Judge Alex Kozinski and Stephanie Grace, one of his law clerks, have seen their private conversations and thoughts receive unwanted, widespread online scrutiny (off-color jokes posted at a private site and e-mailed thoughts about the correlation between race and intelligence, respectively); it's somewhat understandable then, that the two would team to write an essay suggesting that our loss of privacy in recent years — willingly sacrificed, they argue — marks the end of Fourth Amendment protections based upon expectations of privacy. They wrote:

When did the Fourth Amendment die, you ask?

Recently, but it’s been sick for a while.

So why haven’t you heard about it?

Because you’re the murderer. We all are. Our weapon of choice?

....

It started with the supermarket loyalty programs. They seemed innocuous enough — you just scribble down your name, number and address in exchange for a plastic card and a discount on Oreos.

....

These cards were just the beginning. Fast Track passes quickly followed — with their lure of a shorter commute for a little privacy. Then came eBay and Amazon, which save us from retyping our billing and shipping information, if only we create an account. Before long, convenience became paramount, and electronic tracking became the norm.

....

With so little left private, the Fourth Amendment is all but obsolete. Where police officers once needed a warrant to search your bookshelf for “Atlas Shrugged,” they can now simply ask Amazon.com if you bought it. Where police needed probable cause before seizing your day planner, they can now piece together your whereabouts from your purchases, cellphone data and car’s GPS. Someday soon we’ll realize that we’ve lost everything we once cherished as private. And as we grieve the loss of the Fourth Amendment, we’ll be forced to look deep in our hearts—and at the little pieces of plastic dangling from our keychains — and ask ourselves if it was all worth it. R.I.P.

Kashmir Hill ventured that the two have the U.S. v. Jones case, coming soon to a Supreme Court near you, in mind:

Kozinski and Grace don’t offer a solution, though I imagine they’re hoping the Supreme Court will read this before deciding a new case added to the docket this week, U.S. v. Jones, deciding whether police need a warrant to put a GPS tracking device on someone’s car. Wired called it “one of the biggest Fourth Amendment cases in a decade.”

By Kozinski and Grace’s logic, the Court could say that because most people have a Garmin in their car at all times keeping track of their GPS (as well as a smartphone doing the same thing), their reasonable expectation of privacy in where they go has taken a hit. Privacy advocates will be hoping that the Supreme Court will keep the Fourth Amendment on life support by deciding that law enforcement do need to get a court’s permission before slapping a tracker on your vehicle.

Kozinski having offered no solution, Scott Greenfield suggests one to him — accept that judges have played a major part in creating this state of affairs and start fixing the damage the courts have done:

...Judge Kozinski's essay seems intended to lay blame for the disease, when he was the surgeon who let the body politic die. The disease is hardly incurable, and actually deals with only one facet of the Fourth, while others had been murdered by exception after exception for decades. Who's responsible for those deaths, judge?

The current construct presumes that each of us, as we go about our daily lives, has a firm and complete grasp of the most intricate aspects of technology, and holds us accountable by eliminating our personal privacy protection because of the way some ISP routes our emails and cell towers triangulate our smartphones.

....

People just don't know. And people just don't care.

Is our future to hang by the thin thread of our being held to the most intimate knowledge of every tech advancement, every investigative mechanism to sneak a peak at every keystroke, because the courts have interpreted a doctrine that made sense in the physical world by seems inane in the digital world?

If yes, then we're dead and Judge Kozinski is right, at least to the extent digitalis afflicts us. But it doesn't have to be this way. Not at all.

....

So Judge Alex, better to give the 4th a good shake and wake it up before declaring it dead. You're a circuit judge, for crying out loud. You know the problem. Do something about it. The only reason the Constitution has become subservient to technology is because judges haven't gotten off their butts to deal with it.

"Pro bono" is a shortened, colloquial form of "pro bono publico" — that volunteer work which members of the profession undertake "for the public good". As Nathan Koppel reported, pro bono work was sharply-diminished this past year, with large firms turning a greater share of their attention to work not for the public good:

[L]ast year, as AmLaw 100 firms enjoyed solid profitability growth overall, their pro bono output declined.

....

Charity was in relatively short supply last year, according to [American Lawyer magazine], which reports a 10.8% decline in the average number of hours lawyers at the 100 highest-grossing law firms spent on pro bono work. The plunge reverses a decade of steady growth in pro bono output among those firms.

“The fact is that associates do the heavy pro bono lifting at big firms, and those [associates] who survived the recession layoffs found themselves loaded up with paid work in last year’s turnaround,” said AmLaw editor Robin Sparkman.

Larry Ribstein suggested that the decine of pro bono is characteristic of the broader decline of BigLaw:

Big Law uses pro bono to build reputational capital, both directly as a good deed and indirectly as associate training. ...[T]hese firms are dissolving into groups of individual client-oriented partners. Firm reputational capital is out the window, and with it pro bono.

But there’s more. Big Law pro bono is just an aspect of the organized bar’s focus on pro bono as a way of deflecting criticism from its overall failure to serve the needs of the poor and middle class.

....

One approach [to serving with needs of the poor and middle classes with less BigLaw pro bono] is massive public subsidy of high-cost lawyers. I think a better approach is drastic changes in the licensing regulation of law practice. You don’t need three years of high-priced law school to serve many of the needs not being met by pro bono.

BigLaw firms are certainly not the only lawyers contributing pro bono work — medium and small firms do their share, as do many solo practitioners — and Ribstein is correct to note that law students and other non-lawyers can, with some relaxation in licensing regulations, serve at least some of the need. Relaxed licensing rules would enable greater participation by many in-house counsel as well. At its In-House ACCess blog, the Association of Corporate Counsel argued for such changes (and as a registered in-house counsel in California — my full membership is in the Oregon Bar — I heartily agree):

[M]any jurisdictions now permit non-locally barred in-house attorneys to practice law for their employer-client as long as they are in good standing in another state. Unfortunately, this exception does not always extend to providing pro bono services to those most in need, and, when it does, it typically comes with difficult and unnecessary restrictions.

These restrictions are unacceptable. The need for pro bono legal services is immense and growing. Since 1994, studies have found that 80 percent of the legal needs of low-income individuals go unmet. Many in-house attorneys are interested in helping, but those who are not locally barred are handcuffed by state rules that unjustifiably limit their ability to contribute. The result is not that the pro bono work is getting done by other lawyers; it is simply not getting done. The rules must change.

Finally this week, I want to note a couple of blogging anniversaries. Keith Lee has been publishing for a year now at his An Associate's Mind blog. Frankly, I was surprised that his site's been around only a year; he's been on my reading list for what seems like much longer and his voice is a prominent one online. One year in, he offered a few thoughts:

I had no real intentions or goals. I only knew that I had opinion as to how I personally wanted to conduct myself as a new lawyer. I had interest in the classics, business, information technology, law, education, writing, and research. But I could not find a forum for me to discuss such topics en masse. I decided to create my own. If people wanted to come along for the ride, they were welcome to it.

I did not expect much in the way of traffic. If I was able to get 100 page views in a month I felt as though that would have been a success. Instead I had 2,783. Now I might have that many page views in a single day. But the numbers are not important. What is important is the conversation that an audience allows. Whether here at Associate’s Mind, or on Twitter, or Reddit, or some other blog or news site – I most enjoy the exchange of ideas and new relationships that have come from publishing my writings.

George Wallace marked eight years for his A Fool in the Forest "personal and cultural" blog, the companion to his practice-oriented Declarations and Exclusions site. For this eighth anniversary, Wallace offered eight posts from the past year "that do not, I think, embarrass their author too much." Modest as always; the least of these posts would be a highlight on anyone else's blog. Starting his ninth year, Wallace wrote that the endeavor "still carries enough satisfaction with it that this Fool is likely to keep wandering these woods for some time to come." It's his anniversary, but he gives his audience a gift.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., anarchyinyourhead.com, Pundit Kitchen/icanhascheezburger.com via Simple Justice, and Paris Odds n Ends Thrift Store.