TGIS: Thank God It's Schadenfreude! (325)... The Sequel!

This week's bonus joy in the misfortune of others comes courtesy of Reuters (from Thursday, June 23; link good at time of posting):

A player in Melbourne who was left in agony after the ball struck his groin was sent off when the referee spotted he had an intimate piercing.

Aaron Eccleston, playing for Old Hill Wanderers against Swinburne University reserves, was shown a second yellow card for the offence in the first half of the match.

The Sydney Morning Herald reported that the incident happened while Eccleston was sprawling on the grass in pain. According to an opponent, when the player instinctively lowered his shorts to "check that it was still there", the referee spotted the piercing – and when Eccleston refused to remove it, he was dismissed.

The laws of the game forbid players from wearing items, including jewellery, that are "dangerous to himself or another player".

....

"He subsequently received two yellow cards, firstly for re-entering the field of play without the referee's permission, and secondly for privacy reasons being unable to prove that he had removed the piercing."

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (317)

This week's joy in the misfortune of others comes courtesy of The Telegraph (from Thursday, April 21; link good at time of posting):

The Copa del Rey is crushed under the wheels of Real Madrid's team bus after Sergio Ramos drops it off the open top deck amid chaotic celebrations in Madrid.

The Real defender accidentally dropped the cup, 18 years after a Real Madrid player last had his hands on it, as he waved to fans who had gathered in Madrid to greet the team on their return from Valencia.

"The cup fell, it fell," Ramos said according to Europa Press agency. "But the cup is OK."

It was recovered by members of Spanish police who returned it to the driver.

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (287)

This week's joy in the misfortune of others comes courtesy of the Telegraph (from Wednesday, September 15; link good at time of posting):

Seventeen-year old Luke Angel expressed his views on America's president after watching a television programme about September 11 attacks on New York.

....

Officers visited Mr Angel at his home in Silsoe, Bedfordshire, where he admitted to sending the email, but claimed that he could not recall his exact words.

A spokeswoman said no action was taken after officers concluded that he was "being silly".

....

"I don't remember exactly what I wrote as I was drunk," Mr Angel told The Sun. "But I think I called Barack Obama a pr---. It was silly – the sort of thing you do when you're a teenager and have had a few."

"The police came ‘round took my picture and told me I was banned from America forever," the 17-year-old said.

"I don't really care," he added, but "my parents aren't very happy about it."

[Previous TGIS]

Blawg Review Puts on the Foil

I used to be a hockey fan. Over the years, though, my interest has waned to the point where it would be inapt to call it "interest" any longer. To some degree, this was a natural thing — my favorite players were traded-away, declined, and retired and my favorite team languished in the standings season after season. Still, what really killed my interest in hockey was the NHL.

I was one of the many fans who drifted-off during the 2004-5 canceled season and never returned. These days, I don't bother to check the standings or even to watch an entire game when it's on local TV, but I'll happily watch hockey in the Olympics or in-person if given the opportunity. After the lockout year, the only hockey team I'll go out of my way to watch are the Charlestown Chiefs.

Whether you're in the camp which puts most of the blame for the lockout on then-NHLPA Executive Director (and University of Detroit Law alumnus) Bob Goodenow or the one which faults NHL Commissioner (and NYU Law alumnus) Gary Bettman, it's fair to say that lawyers killed my interest in professional hockey. With such residual bitterness, it's unlikely that lawyer R. David Donaghue could rekindle that interest, even with his fine Stanley Cup-themed Blawg Review #277 at his Chicago IP Litigation Blog site. Highlights include ponderings on pet trusts (and if you can't trust your pet, who can you trust, really?), the origins of inventions, and how best to kill a law firm.

The no doubt hockey-loving Canadian Omar Ha-Redeye will host next week's Blawg Review #278 at the Law is Cool blog.

Until the vuvuzela came along, I'd always regretted losing my hearing.

Andrew Raff hosts this week's Blawg Review #269 at his IPTAblog site. The occasion is World Music Day and no discussion of world music during the World Cup would be complete without some mention of the ubiquitous vuvuzela horns heard during matches (not to mention the nightmares of soccer fans everywhere). Raff discusses the trademark status of "vuvuzela" in the course of rounding-up the best legal blogging of the past week. Highlights include discussions of Jazz' death-by-copyright, the impact of the Limewire decision, and the ease of online stalking. Dave Gulbransen will host next week's edition of Blawg Review at his Preaching to the Perverted blog.

A Round Tuit (33)

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.

In the Monty Python episode "Blood, Devastation, Death, War, and Horror", a television presenter portrayed by Michael Palin uses an elaborate gesture to indicate to his audience that the natural pauses and breaks in his monologue are just temporary, that his speech will continue once he catches his breath, and that they shouldn't wander off. In another episode, Graham Chapman's "Biggles" is obliged to don and doff a set of antlers to indicate to his dimwitted courtesan... er, secretary whether he's dictating a letter or simply speaking to her. Frankly, if either of these approaches had been recommended by the Berghuis v. Tompkins Supreme Court to clarify in-custody discussions between police and suspects, it would've been nearly as sensible as what they did choose.

In Berghuis, Thompkins had been taken into custody by local police. He was read his Miranda rights and asked to sign a waiver of those rights. Very sensibly, he did not sign the waiver; somewhat less sensibly, he also did not request an attorney and expressly state that he would not answer police questions without an attorney present. Over the course of three hours, Thompkins sat quietly while interrogators peppered him with questions. As Steven Shapiro noted in a Wall Street Journal opinion piece:

Until the very end, Thompkins made only two comments of note: He declined a peppermint candy that the police offered and he complained that his chair was uncomfortable.

Thompkins said nothing else of substance in response to a barrage of police questions. He did not answer the easy questions and ignore the hard ones. He did not answer questions at the beginning of the interrogation and then stop talking later. The police themselves characterized the interrogation as "nearly a monologue."

Still, the police persisted. After nearly three hours, Thompkins was asked whether he believed in God and whether he had asked God to forgive him for his crime. A police officer later testified that Thompkins said "yes" to both questions, and Thompkins was convicted of murder.

If that sort of questioning causes you to flash-back to first-year Criminal Law lectures and the Brewer "Christian Burial" case, you're not alone. Scott Greenfield called the Berghuis questioning "A Christian Burial, Redux" and noted that this dimunition of Miranda hinged on one justice's decision:

We've been down this road before. Every law students studies the 1977 decision of Brewer v. Williams, where the defendant invoked his 6th Amendment right to counsel. Yet police continued to try to get Williams to talk, manipulating him with an appeal to his deep religious beliefs, that the parents of the young girl he murdered should be able to have a Christian burial. Williams led police to the body.

Much is packed into the Supreme Court's Berghuis v. Thompkins decision, Much surrounds it. It's a 5-4 decision, thus leaving the rights protected by our Constitution in the hands of a single individual, Justice Anthony Kennedy, whose individual views more than any other dictate the fundamental law of the United States of America.

....

The way it's told, the decision is ironic in that a defendant is required to speak to remain silent. Putting in these terms makes it almost cute, not to mention silly. It isn't as vast a departure from our understanding of the tortured use of Miranda to protect police interrogations as some suggest. Before this decision, defendant's were required to invoke the right to remain silent or the right to counsel in a clear and unambiguous way. This alone tripped up most defendants who were otherwise disinclined to heed the warnings. Most defendants heard and understood the warnings clearly, and talked anyway.

The change of Berghuis is that a clear and unambiguous invocation of rights now requires a defendant to express it verbally. He must say something to invoke.

....

Berghuis v. Thompkins is a decision by Justice Kennedy that somebody has to be the one responsible for saying the magic words, and he thinks it ought to be the defendant, since the defendant is the one least capable of doing so and it's better for law enforcement, it's more effective, to get confessions than not. By allowing people to invoke their rights, if they know the magic words and can manage to get them out properly (and the cops scribble them down accurately when writing their report the next day), they have a chance of safeguarding their constitutional rights. That's good enough, even if most will be incapable of doing so.

As for the promise of the 5th and 6th Amendments, the protection of rights that Miranda v. Arizona had in mind, which now lasts only 14 days at best, it was stillborn. The sweet words of precedent did nothing to help defendants to overcome the coercion, manipulation, lies and pressure to hear their rights and still utter the words that would convict them. It provided an easy shield for the police that never worked as a sword for the defendant. It was dead on arrival.

All Miranda needs now is a decent Christian burial.

Rick Horowitz spared little in his criticism of the majority's decision to further erode Miranda and their glib dismissal of the realities of custodial interrogation; he quoted from Justice Sotomayor's dissent:

Justice Sotomayor’s conclusion is that

Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent — which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.

The majority disagrees. By their words, they continue to reiterate that the burden is on the prosecution. It’s just that, according to them, the burden ain’t heavy; it’s Miranda.

Paul Kennedy noted, as did others, that the Miranda warnings have entered the public's consciousness through countless police procedurals on television; it seems that at least five justices don't watch much TV:

Notice there is nothing in either the 5th Amendment or in the Miranda warning that indicates a suspect in a criminal case has to tell the police he doesn't want to answer questions. "You have the right to remain silent." How hard a concept is that to get your head around?

Apparently much harder than you or I might think.

....

Mr. Thompkins, by all accounts, was "largely" silent during the almost three hour long interrogation, but somehow that wasn't a clear and unambiguous exercise of his right to remain silent. What more did the police need? Are we now going to see more marathon interrogation sessions in which the police attempt to "beat down" a suspect's will?

So, according to the Supreme Court, we no longer have the right to remain silent. Instead you must tell the police you aren't going to answer their questions. How absurd is that?

Jeff Gamso explained that the simplicity of the Miranda protection (not to mention the clear Constitutional language from which these are derived) has been undermined to the point of nonexistence by subsequent decisions and that even determining when a suspect is in custody is problematic:

Consider Miranda v. Arizona. You know, the case that says:

1. When you're in custody, and
2. Police want to interrogate you,
3. They have to read you your rights, and
4. You have to understand your rights, and
5. You have to voluntarily agree to give them up, and
6. If you then say something incriminating,
7. It can be used against you in court. But
8. Only if the government can satisfy a "heavy burden" of
9. Demonstrating by a preponderance of the evidence steps 3, 4, and 5.

Or, of course, not.

Because "custody" isn't what you or anyone else thinks it is. According to the courts, a person is in custody when a reasonable person would believe himself free to leave.... judges know all that's nonsense, but it's what they choose to believe when they are in the courtroom being judges rather than out on the street being asked questions by a cop.

And then there's that whole understand your rights thing. As if it matters. Did you ask for an explanation? No? Then you must have understood. Oh, wait, you did ask for an explanation? Did the cops offer one? Then you clearly understood.

....

But you said, "I should speak to a lawyer." And they kept after me. Ah, but you didn't say you refused answer questions until you spoke to a lawyer. It's magic words. You have to say the right ones. And nobody will tell you what they are.

....

So the truth is that the government's "heavy burden" of proving that any custodial statement was made only after a knowing and voluntary waiver of the rights to silence and counsel is, and pretty much has been for years, just so much bullshit.

And now it's official.

I've often heard criminal defense counsel advise that in any meaningful encounter with police, one should invoke rights early and often and refuse to answer police questions without counsel present. I've passed that sage advice along numerous times. In light of the Berghuis decision, how explicit does that refusal to answer questions and invocation of rights need to be? Pretty damn explict, it seems. Norm Pattis is taking no chances; he suggests, "Is 'Fuck Off' Clear Enough?"

The Supreme Court decided conclusively that you must make it clear and umabiguous to police officers that you want to remain silent. Normal polite conventions, such as refusing to speak, do not apply. You need to spell it out for the coppers. Make it crystal clear. Lay it out loud and bold.

....

Of course, carrying on in this vein has its downside. But it has the benefit of being unambiguous enough for most police officers to understand. Some members of the Supreme Court will undoubtedly struggle with the nuances.

Jon Siegel noted an interesting procedural aspect to the Berghuis decision and suggested that this major change to Miranda was "unnecessary":

[T]he case arose in the context of a petition for habeas corpus. That is, direct appeal of the conviction was over, and the convicted prisoner then applied for habeas. In such cases, pursuant to the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), relief is available only if the state court decision is not merely wrong, but unreasonably wrong, to the point where reasonable judges would all agree that the state court decision misapplies federal law. If the state court judgment is a close call, the federal court is supposed to deny habeas relief even if, in the federal court's best judgment, the state court got the case wrong.

Therefore, whatever one thinks of the Supreme Court's new understanding of how Miranda actually works, it seems pretty clearly unecessary for the Court to have announced its rule in a habeas case. The Court needed to say only that the state court decision was not an unreasonable application of Miranda, without deciding whether it was ultimately correct. That question could have been saved for another day.

Decide they did, though, and it's left to us to deal with the new official reality (which is, as Jeff Gamso pointed-out, much the same as the old unofficial one).

Know your rights and do whatever you can to keep them when your friendly neighborhood police drop by for a chat. Whether you follow Norm Pattis' step-by-step process for loudly and... um, explicitly invoking your rights is up to you. For myself, I'm going to reread a couple of Constitutional Amendments, rewatch "Blood, Devastation, Death, War, and Horror", and carry a set of antlers at all times, just in case.

I've been annoying family, friends, and co-workers for some months now with my eager anticipation for the soon-to-start 2010 World Cup. First things first: yes, I'll cheer for the USA, but I've always been an England supporter. I know, I know, I am an American, but I was born in England, I'm an unapologetic Anglophile, and it's only the last few World Cups where the Americans have made the field; when I was a kid, I wasn't entirely certain that we had a national team. But for this weekend, when England and the USA play one another, I expect that it won't be a problem to support both. They're both likely to advance from a relatively-weak group. All right, enough, I'll move on. I suppose I can now add the readership of these Round Tuit posts to that list of annoyed family, friends, and co-workers. At least I can take some consolation in the fact that there are a few legal bloggers out there who care as much as I do about the World Cup.

David Post is probably at the top of that list. His lengthy guide to the tournament is excellent and his assessment of England ("England looks like England.") probably suggests that, like me, he's curious to see what bizarre turn of events will cause The Three Lions to lose in the Quarterfinals as they often seem to do. An early red card? A poor referee call? A dive by an opposing player in the penalty area? An untimely choke on a penalty kick? Zinedine Zidane running onto the field to head-butt Wayne Rooney into unconsciousness? Time will tell.

Mike Madison offered a couple of posts this past week on World Cup-related legal issues. In the first, he considered a copyright moral rights matter decided — badly, it seems — by an American court. In the case, a songwriter hired to adapt a Spanish version of an existing song for a Cup-related Coca-Cola ad campaign sued the soft drinks giant:

The relief granted is less than the relief sought. According to the court, Vergara asked for an order “requiring that Coca-Cola and its subsidiaries cease advertising with, selling, distributing or otherwise commercially exploiting the song containing Vergara’s lyrics. Additionally, Vergara requests that the Order require Coca-Cola to immediately provide a public acknowledgment of Vergara’s contribution ‘by such media or other vectors as the Work has been previously disseminated.’”

Still, whether or not the court gave Vergara everything that Vergara asked for, Vergara asked for something — and the court gave him something — that the American copyright statute does not grant: a kind of moral right. In this case, that moral right is a species of attribution right. The court agreed that Vergara was likely to succeed on the merits of his underlying infringement claim, that Coca-Cola was reproducing the copyrighted lyrics without permission. But there was no agreement between Vergara and Coca-Cola (or between Vergara and Universal) regarding the work being attributed to him; this was not a request for specific performance of an underlying private obligation. Vergara was claiming rights under American copyright law based on his having produced a work protected under Mexican copyright law; American copyright law includes no statutory attribution right that would apply to this case. There was, in other words, no preexisting obligation on Coca-Cola’s part to attribute the work to Vergara.

In a second post, Madison discussed a concept foreign in every sense of the word for Americans — the European legal scheme to designate certain sporting events as being "events of major importance for society" and requiring these to be on free television:

The list of “major events” developed by Italy, for example, recites the following:

1. Summer and Winter Olimpic Games;
2. The final and all matches involving the national team in the football World Cup;
3. The final and all matches involving the national team in the football European Championship;
4. All official matches of the national football team;
5. The final and semi-final of the Champions League and UEFA Cup when italian teams are involved;
6. The Tour of Italy;
7. F1 Italian Grand Prix;
8. The Italian Music Festival of Sanremo.

It is tempting to imagine developing a comparable list for the United States — “events of major importance for society” — although it is unimaginable that Congress would dare legislate (let alone that the FCC would try to mandate) that broadcast television networks make these events available. Telecommunications policy and cultural policy are just about as distant from one another in the US as they are aligned in the EU.

In another event of major importance for society, journeyman pitcher Armando Galarraga was deprived of a perfect game — a perfect game being one in which a pitcher retires all batters in a complete game without allowing a hit or a walk. Though, bizarrely, Galarraga's would have been the third such game in the space of a month this season, over the course of major league baseball history, perfect games are exceedingly rare — occurring just eighteen times before this season. It wasn't so much that Galarraga missed his perfect game or that he lost it on the twenty-seventh (and final) batter; according to Wikipedia, that's happened ten times before. No, what made Galarraga's blown perfect game an historic one was that it was a wrong call by umpire Jim Joyce — calling the batter safe at first when Galarraga had beaten him by a half-step — which cost Galarraga his perfect game.

To Joyce's credit, he reviewed replays shortly after the game and admitted his mistake, saying "I just cost that kid a perfect game. I thought he beat the throw. I was convinced he beat the throw, until I saw the replay." Joyce's error breathed new life into the long-running debate over the use of replays in-game to correct umpiring mistakes and many called for Commissioner Bud Selig to reverse the call, much as had been done in the "Pine Tar" game some years ago. Ted Frank suggested that comparisons to the "Pine Tar" incident were misplaced:

Around the web, there are calls for Major League Baseball to retroactively award Galarraga a perfect game. A comparison is made to the "Pine Tar game" in 1983: an umpire reversed a George Brett home run for excessive pine tar on the bat, calling him out and ending the game with a New York Yankees victory over the Kansas City Royals; the American League reversed the call and ordered the last inning of the game replayed, with the Royals winning by virtue of the reinstated Brett home run.

But the difference between the Galarraga game and the Pine Tar game is material. In the Pine Tar game, the umpire made an erroneous interpretation of the rules—the penalty for using a bat with too much pine tar is to remove the bat from the game rather than to call the batter out. The Royals protested the decision under applicable baseball procedure and got the erroneous application of rules reversed. In the Galarraga game, the umpire's error is one of a bad interpretation of facts: a judgment call that is not appealable or reviewable under MLB Rule 4.19.

(Habeas aficionados will be interested to see that MLB Rule 4.19 has a "harmless error" component: even an umpire's mistaken application of the rules is not reviewable if it would not make a difference to the outcome of the game.)

It seems that Selig will not intercede this time around; I think that's the right decision and I commend him for it. Paul Kennedy would go a step further than that if he could, to nominate Selig for the Supreme Court:

[D]espite the evidence Mr. Selig held firm and told the world that the rules are the rules and that he would not undo the end of the game. Even though he knew the call was wrong and that Galarraga had his perfect game stolen from him, Mr. Selig stood firm that he would not overturn a call made by an umpire on the field.

Why, then, should Mr. Selig sit on the highest court in the land?

It goes a little like this... The Fourth Amendment protects us from unreasonable search and seizure. The Supreme Court decided that this protection was so important that any evidence obtained by means of an unreasonable search would be deemed inadmissible and would not be allowed to be presented to a jury. The "exclusionary rule" became the ultimate sanction the court could impose upon the state. And whenever a judge excluded evidence obtained by an illegal search or seizure, the judge was saying, in essence, that it didn't matter that the evidence showed the accused committed the crime and that it didn't matter that he knew and the police knew and the attorneys knew the accused committed the crime -- the rules are the rules.

What's this "Fourth Amendment" thing all about? Is that something "of major importance for society"?

Howard Wasseman shared the sentiments of many when he wrote that it's right in sports — particularly baseball — to leave well-enough alone: "I just am not exorcised about the "correctness" issue, at least where sports are concerned. I prefer finality and redoing all sorts of things once the game ends." His co-blogger, Michael McCann, disagrees and argues for a replay facility in baseball:

It's encouraging when someone admits a mistake and owns up to it, but why should the mistake even stand? Why isn't there instant replay for extremely close calls, especially when fans get to watch those replays, in some cases over-and-over again? And especially when the person who made the mistake clearly would have corrected it had he been able?

Some might argue that instant replay would extend the time of already-too-long games. That is probably true, but if managers were limited to two or three replay challenges per game, presumably the impact on the time would not be too significant. Also, isn't accuracy and the fairness it promotes more important than whether games are five minutes longer?

Others place value in the tradition -- umpires haven't been able to use instant replay for calls and we should honor that tradition. First off, that isn't true, as in 2008, MLB umpires allowed for umpires to use instant replay to review whether fly balls are foul or home runs. But more important, who cares about a tradition if contemporary technology offers a better and fairer system? After-all, if instant replay technology had been around when baseball was created and developed, isn't there a good chance that it would have been adopted?

Donald Layden agreed with McCann that unswerving adherence to tradition is not always in the game's best interests; he further suggested that what we're witnessing in the Galarraga matter is not honoring tradition but dogmatically sticking to past practices:

Holding fast to past practice is not the same as holding on to tradition. I hope that Commissioner Selig is able to distinguish between the two. Baseball tradition was honored by the way that Armando Galarraga has accepted the decision of the umpire and the rules under which the game is played. He is a class act. Baseball tradition was honored by the way that Jim Joyce accepted that he is human and acknowledged his mistake. Baseball is bigger than the egos of either one.

Now it is time for the Commissioner to get over his misconceived notions of clinging to the past and accept that baseball should be able to adjust to the times and use technology to review calls like the one last night at first base. No fan would object to the delay and no player or umpire would object to the review. Indeed, in a case like last night the focus would be on getting it right.

Jonathan Adler noted that Joyce's was not the only blown call in an event of major importance for society that night; in the Stanley Cup Finals game between Chicago and Philadelphia, a hard-fought series tied 1-1 at that point and led by Chicago 3-2 going into tonight's game six, a questionable goal was reviewed without disruption to the game, providing some guidance (perhaps) for baseball in the future:

The game was tied 1–1– and the Flyers were on a power play, and it appeared Scott Hartnell deflected Chris Pronger’s shot past Blackhawk netminder Antti Neimi. The siren sounded, but no call was made, and play continued — for another minute-and-a-half. Yet at the next stoppage, the refs asked the video booth to review the call. The video was unmistakable, and the call was corrected. Score a goal for the Flyers, reset the clock, and pick up the game as if the proper call had been made in the first place.

Professional hockey, like most professional sports, uses instant replay to help ensure that game-changing calls are made correctly. Accommodations are made to maintain the integrity of the game — such as waiting until a natural stoppage before reviewing the tape — but instant replay is still used to make sure saves are saves and goals are goals, and it works. Indeed, during overtime there was another close call, a shot that could have been called a goal as the puck skated along the line. This, too, was reviewed, and properly ruled a save. And so the Flyers would have to take more shots before finally winning the game.

The outcome of the game should turn on the performance of the players, not the performance of the referees. Not every call is reviewable, and some amount of human error is inevitable, but instant replay can reduce the scope of potential error and help ensure the proper outcome. And, as last night’s hockey game shows, it need not come at the expense of the game.

Alan Milstein also noted the hockey review and reversal, but wondered whether such precision is appropriate in baseball:

I was thrilled that the right call was made in the hockey game. Playoff hockey is such a brutal game and the players seem to give more of themselves in that sport than in any other, well past the point of exhaustion, performing feats on ice that on solid ground would be remarkable.

But baseball is the most human of games. Players don’t commit penalties or make turnovers, they commit errors. The best hitters fail two thirds of the time. It is a sport that reflects the wonder of human frailty. As the biblical texts teach us, even the angels were jealous of humans because their free will allowed them to make wrong decisions, which made the right ones so much richer.

The way Gallarraga and Joyce have conducted themselves since the one hitter shows how perfect human beings, and baseball, can be.

David Post responded to Jonathan Adler's hockey post and wrote that the precision of hockey is entirely wrong for baseball; instead, he argued, soccer's imprecision-by-design is a better model for the national pastime:

[P]art of the appeal of [soccer is that] the refs are actually a part of the game, and their performance gives you more to be angry about or amused by, and more to talk or argue about after the game is over. Nick Hornby had it right, in his wonderful novel “Fever Pitch”: one of the necessary ingredients of a truly great soccer game is that the ref makes a horrendous call against your team — a penalty against you, say, awarded on the basis of a patently-obvious flop inside the box — but you win anyway! Not something a football fan is likely ever to experience.

Adler’s claim really goes to the question of what games are about, and why we love them. Soccer is like life. It can be terribly, brutally unfair; if you have any Irish friends, ask them how they feel about the blatant handball that enabled France to defeat Ireland and make it to the World Cup finals. It’s full of error and mistake. We (soccer fans) don’t like it when refs blow calls, any more than we like the fact that life deals out tragedy seemingly at random, or that good and virtuous people don’t always get their just desserts. But it’s part of the game, and part of what we respond to in the game, part of why we care so passionately about it. Football and hockey and the rest of them try to eliminate that element from the game — good luck with that, by the way. Nothing a priori better or worse about either approach, I suppose — but when one starts to talk about what sports should or should not have, perhaps the principle of vox populi, vox dei should inform our judgments.

If anyone's left reading this post at this point, after all this talk about baseball and soccer in Biblical terms and in Latin, let me reward you by bringing things back around to the law. Yes, there were a few legal bloggers this week who managed to put aside their deep and abiding reverence for sport and relate the games we play and watch to more weighty matters.

Maxwell Kennerly considered, amongst all the discussion about reversing Joyce's call, whether there was much significance in the Supreme Court's reversal this term of seven decisions made by the Sixth Circuit. With the Court's control over its own docket (picking-and-choosing the cases it wishes to hear), the complexity of habeas law in particular, and the law of averages, we can't conclude too much, he suggested:

There's obviously room for debate [about Joyce's call], and we're only talking about a simple safe-or-out call in baseball, where everybody agrees on the rules.

The same can't be said for law, where lawyers and judges often disagree on what the rules even are, much less how those disputed rules apply to a given situation.

Throw in decades of vague, sometimes contradictory Supreme Court precedent on the rights afforded to criminal defendants and it's not too hard to image the Sixth Circuit getting "out-of-step with existing Supreme Court precedent on habeas." There's precious few "steps" to follow.

Unlike the Sixth Circuit — which has to hear every appeal filed with it — the Supreme Court gets to cherry-pick the vast majority of the cases on its docket, and so could spend all of next year doing nothing more than cherry-picking habeas cases in which it could reverse the Sixth Circuit. It could do that for any circuit, and for any legal issue. It could spend a whole decade doing nothing but affirming appeals of cases initially filed in the United States District Court for the District of Guam.

This year, it chose a handful of cases from the Sixth Circuit to reverse; given the sheer volume of habeas petitions out there, and the diversity of holdings in those cases, the Supreme Court could have chosen cases from any of the circuits to make its point.

Seven reversals is thus no indication of the Sixth Circuit's reasoning or fidelity to precedent; it's little more than the Supreme Court holding up a candle in the middle of the dense fog they and Congress created.

Brian Tannebaum took the opportunity to note the imperfections in another game — the criminal justice system — and our similar reluctance to overturn bad decisions there:

Any criminal defense lawyer who felt his client was wrongly convicted, has stood at sentencing and heard the judge and prosecutor say over and over again "but the jury found him guilty." Yes, a group of people looked at the evidence and made a judgement call. Human beings came together to decide whether someone committed a crime. Most of the time it's easy. There's a confession, along with witnesses, along with physical or scientific evidence, and the combination of all of it is proof beyond a reasonable doubt

But it's the cases like the missed call that resulted in a "non"-perfect game, cases where there is one witness, who may have gotten it wrong.

....

Today the country is crying foul - a man pitched a perfect game and the law prevents us from doing anything about it. It's wrong. It's not fair. But my friend is right - we in this country love law & order so much, that we can say with a straight face that Bud Selig did the right thing. Sometimes life sucks and you get screwed. You don't go back and change things.

And nobody will, regardless of the truth.

Mirriam Seddiq also wrote about the parallels between the imperfect game of baseball and the imperfect criminal justice system:

Law is not baseball.

Criminal defense lawyers aim for a perfect game every time we go to court. We've practiced, set up our strategy, know who our players are and the other side's weaknesses and strengths. We go out ready to play, ready to win. And, there are times when we are on top of it, we are pitching a perfect game. But we only have so much control over how the game plays out. We, too, have umpires who make lousy calls. And, when our umpires make bad calls, they don't acknowledge and they certainly don't apologize.

When our games go awry, people go to prison. They lose liberty and sometimes they lose life. We have the benefit of instant replay, transcripts of what was said, precedent to rely on, but despite all of that, our umpires are people who make mistakes. They are human. But when they screw up, we don't all hug and go home.

....

Law is not baseball. But if only it was.

Daniel Schwartz noted that Galarraga's and Joyce's experiences and their relevance in the workplace:

[N]o one debates that the umpire just made a mistake. A big one. So big that it deprived a pitcher one of the crowning achievements in baseball and a spot in the history books. But the umpire is powerless to reverse it.

Sometime, a mistake of this proportion (or bigger) is going to happen in your workplace too. A supervisor or a member of your human resources staff is just going to make a big ol' mistake. Maybe they won't ruin a "perfect" game, but within your workplace it may be just as big.

....

Not all mistakes are fixable. And some mistakes by employees warrant disciplinary action. But sometimes mistakes are just lapses in judgment or oversights.

We all know mistakes happen. How your workplace responds to a mistake may ultimately define your workplace more than the mistake itself.

Scott Greenfield, whose posts on criminal law, social media, and other matters great and small generally form the backbone of my Round Tuit posts each week, is deservedly one of the most-trafficked, honored, and linked legal bloggers around. Though he's spoken from time-to-time about his blogging philosophy, I don't recall a more pointed or personal discussion than this week's post, "Simple Justice: Through the Eyes of Scott Greenfield". He discussed a number of behind-the-scenes concerns and, in passing, a particularly troubling one:

A couple of weeks ago, an email came in about how the writer had googled my name and found some insane, vile posts about me on the second page. My psycho stalker is still working hard through the night trying to get his inane nonsense on the first page of google. You haven't made it as a blawger until you have a psycho stalker. Psychos, by definition, don't go away. I assume that people who aren't totally nuts realize that these attacks are the work of a psycho. I could be wrong, but I have no plans on spending my time worrying about it.

By putting my name in the title of this post, it's likely to appear on the first page of google. It will push the insane posts down the list by one. It would be really great if everyone did a nice post about me and used my name in the title, so that the insane posts could be pushed back to page 28. I don't expect anyone will think it worth their effort to do so, unfortunately.

Though Greenfield's often right, in this instance he couldn't have been more wrong. Over the next few days, many legal bloggers wrote as he'd requested and a grass-roots "Scott Greenfield Day" was born. Eric Turkewitz called Greenfield a super lawyer and super blogger:

A human can only pump out consistently high quality posts — his take as little as 10 minutes — by being able to:

• Think imaginatively about issues;
• Organize those thoughts in the head;
• Write creatively;
• Type fast as hell.

Greenfield has that rare combination of qualities, making him a virtual one-stop shop for legal issues that confront us in New York or around the nation. If he isn’t in your RSS feed, you’re missing a continuing treat. If I were forced at gunpoint to pick just one blog to read from the hundreds in my RSS feed, his would be it.

John Kindley wrote that, "Love him or hate him, or love him and hate him, there’s no denying that Scott H. Greenfield at Simple Justice has contributed more substance to the criminal defense practical blawgosphere than any other individual." One of those love-and/or-hate-Greenfielders is Norm Pattis:

Scott over at Simple Justice and I have been in a pissing match of late. He calls me a self-indulgent whiner; I snipe that he is an anti-social network marketing social network marketer. On and on it goes, where is stops, who the fuck knows. Or cares. I've wearied of his "I am not worthy" cynicism and have decided to move on to other blogs and writers. Even so, I respect anyone who puts their name on an opinion piece and then hits the send key. Inviting critics to step into the virtual forum takes anatomy.

The Blawg Review Editor also paid his respects:

We sometimes disagree, but he's never disagreeable. Scott Greenfield is not perfect; his blog isn't meant to be. It's one of the best, that's all. Simple Justice is a great law blog because Scott Greenfield is a natural blogger. He is generous with link-love and that makes him a great host of Blawg Review. He gets it. It's not all about him. Scott Greenfield plays the curmudgeon in the blawgosphere but, in real life, he's a nice guy. He will deny it, but it's true.

Mark Bennett rounded-up the more than a dozen tributes posted for "Scott Greenfield Day" and offered some insights into the lack of character displayed by Wayne Conley, Greenfield's stalker and an individual who's darkened the virtual doorsteps of several legal bloggers recently:

Conley is... seriously batshit insane. So however people respond to his stalking, in the real world or online, he sees it as vindication. Ignore him, and he thinks you're afraid of him; engage him, and he thinks he's "winning." Caring what he thinks is like mainlining madness. .... Conley's rants are paranoid, delusional, racist, and antisemitic. He is so patently a whackjob that even the most feebleminded of readers recognizes how goofy he is. Nobody who matters is going to take seriously his diatribes. I've had people hire me not despite his impotent attacks, but because of them. So those of you who, writing about Scott Greenfield today, have attracted Conley's attention, rejoice: the worst thing Wayne Conley can possibly do for a lawyer's reputation is to praise her.

When Google and the City of Los Angeles agreed this spring to replace key portions of the City's existing information technology infrastructure with cloud-based Google Apps, the arrangement was unprecedented in size and complexity. The details of the arrangement were recently published and David Navetta undertook a detailed analysis of this important contract; this week, Navetta concluded that review. The terms are surprising in places and the structure of the arrangement is certain to provide a model to many cloud-computing vendors going forward, particularly those who deal with large organizations and governments. After starting this post with the discouraging Berghuis decision, I'd like to end it with a bit of Glee. For those who enjoy the musical dramedy Glee as I do, it's a weekly dose of pure entertainment; I enjoy its superficiality, though others are able to find some deeper meaning in Glee and the phenomenal following it's attracted. Unlike your police procedurals and courtroom dramas, there don't seem to be many legal issues in and around Glee, but Christina Mulligan noted one in a very worthwhile post concerning the mixed-messages the program sends about the current state of copyright law:

The fictional high school chorus at the center of Fox’s Glee has a huge problem — nearly a million dollars in potential legal liability. For a show that regularly tackles thorny issues like teen pregnancy and alcohol abuse, it’s surprising that a million dollars worth of lawbreaking would go unmentioned. But it does, and week after week, those zany Glee kids rack up the potential to pay higher and higher fines. In one recent episode, the AV Club helps cheerleading coach Sue Sylvester film a near-exact copy of Madonna’s Vogue music video (the real-life fine for copying Madonna’s original? up to $150,000). Just a few episodes later, a video of Sue dancing to Olivia Newton-John’s 1981 hit Physical is posted online (damages for recording the entirety of Physical on Sue’s camcorder: up to $300,000). And let’s not forget the glee club’s many mash-ups — songs created by mixing together two other musical pieces. Each mash-up is a “preparation of a derivative work” of the original two songs’ compositions – an action for which there is no compulsory license available, meaning (in plain English) that if the Glee kids were a real group of teenagers, they could not feasibly ask for — or hope to get — the copyright permissions they would need to make their songs, and their actions, legal under copyright law. Punishment for making each mash-up? Up to another $150,000 — times two. The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered. .... The Constitution allows Congress to pass copyright laws to “promote the progress of science” — a word often used in the 18th century to mean “knowledge”. The stated purpose of the original 1790 copyright statute was to encourage learning. So you tell me — what promotes knowledge and learning: letting people rearrange music and learn to use a video camera, or threatening new artists with $150,000 fines? Defenders of modern copyright law will argue Congress has struck “the right balance” between copyright holders’ interests and the public good. They’ll suggest the current law is an appropriate compromise among interest groups. But by claiming the law strikes “the right balance,” what they’re really saying is that the Glee kids deserve to be on the losing side of a lawsuit. Does that sound like the right balance to you?

Though he admits that he's no "Gleek", Mike Masnick recommended Mulligan's analysis and offered a few thoughts of his own:

[W]hat I find interesting is that Mulligan doesn't even touch on the fact that these mixed messages are coming from the same place. The same folks who produce, distribute and broadcast Glee are the folks who insist copyright is property and that the current laws are just and good. But, even they must know, conceptually, that there's a mismatch between what the law says today and what people actually do.

In-show, the kids were unexpectedly given another year together by the group's nemesis, cheerleading coach Sue Sylvester; in the real world, having just concluded a very successful first season, the show has been renewed for another two by the Fox network, so at least the Glee kids will have a bit of cash-in-pocket when the copyright lawyers come calling. Whether Kurt will have enough left over to afford next season's fabulous wardrobe remains to be seen. Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., http://utopia.duth.gr/~nikobeis/, USA Today, and Paris Odds n Ends Thrift Store.

A Round Tuit (32)

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.

I've written a few times before about American Needle v. National Football League, wherein manufacturer American Needle alleged that the NFL's exclusive apparel licensing deal with Reebok violated antitrust rules. The antitrust allegations made by American Needle and the NFL's counter-arguments raise interesting, if not monumentally important, legal issues and deserve some consideration. Mostly though, these Round Tuit posts reflect my own whims and I enjoy it when legal issues arise in sports and don't involve an overpaid crybaby getting into trouble in a nightclub.

About the modern NFL, analysts often talk about the parity amongst teams in the league. Constructs like the salary cap and draft structure have been carefully designed by the league to ensure that fan interest across the country is not damaged by the dominance of a few large-market teams over their smaller-market brethren. They've been largely successful at this, as the NFL's staggering television and merchandising revenues attest. In terms of play, the game has never been stronger; while there are a few perennial losers, the talent is distributed across the league such that on any given Sunday (or Monday or Thursday or Saturday or whenever someone will pay to broadcast a game), even an underdog can prevail. Unless it's Seattle.

Against the NFL, American Needle was an underdog. As Ashby Jones reported, however, they not only won but won big:

American Needle clobbered the league, in a unanimous 9-0 decision penned by Justice John Paul Stevens. We had no dissents and no concurrences. This was an unadulterated blowout. This was the 1940 NFL Championship game; the 1986 Super Bowl.

....

American Needle, which had individual licensing deals with NFL teams, sued, arguing the NFL’s exclusive deal with Reebok violated antitrust rules. The NFL argued that it is a single entity with 32 teams that compete with each other in football but not in business, where the teams collectively compete with other sports and forms of entertainment. American Needle countered by arguing that the league was actually a collection of 32 independent entities — i.e., all the teams.

....

The Supreme Court on Monday essentially ruled that the NFL is composed of 32 separate business entities.

....

Therefore, the Court ruled that Section 1 of the Sherman Antitrust Act applies to the NFL, and ruled that any unilateral decision made by the NFL that affect all the teams shall be viewed under the so-called “Rule of Reason” for antitrust purposes. Under the “Rule of Reason,” a lower court has to examine all of the circumstances to determine whether and to what degree the action is anticompetitive.

Lyle Denniston also noted the decision and that the adverse result for the NFL contrasts with the favored treatment allowed to Major League Baseball:

Rejecting the National Football League’s claim that it has across-the-board immunity to antitrust law when its teams join in a commercial activity, the Supreme Court unanimously cleared the way Monday for trial of a lawsuit against the joint marketing of the right to use the teams’ logos and trademarks on consumer goods. The ruling applied only to that specific joint venture, and did not cover any other collective action that the NFL — or any other pro sports league — might carry out. The Court also did not decide whether the NFL did in fact act illegally in this specific marketing effort; that will be decided at a trial, with the legality weighed under a “rule of reason” standard.

....

Although major league baseball has been exempt from the antitrust laws since 1922, under a Supreme Court decision that year, the other pro leagues have not shared that immunity, and Monday’s ruling in the NFL case re-opened them to court challenge on at least some of their collective commercial efforts. The Court, however, sought to ease the anxiety that its ruling might create, saying “Football teams that need to cooperate are not trapped by antitrust law.” In an opinion by Justice John Paul Stevens, the Court went on to say that pro teams “share an interest in making the entire league successful and profitable,” and in pursuing that they may need to make “a host of collective decisions” that would be beyond antitrust challenge. The particular activity at issue, though, is “concerted activity” of the kind that is subject to challenge under the Sherman Act’s Section 1, the Court concluded.

In a second post, Denniston explained that the lopsided victory for American Needle is tempered by the limited nature of Justice Stevens' majority opinion:

While the American Needle case always had the potential to produce a significant new statement from the Court on the Sherman Act’s application to commercial “joint ventures” in general, in the end it did not do so. Much of Justice Stevens’ opinion is simply a reiteration of past rulings on such collective activity, and, indeed, did not mark any deviation from the main precedent on the subject....

Despite those limitations, Marc Edelman cited the decision as an important one within the somewhat narrow scope of litigation against professional sports leagues:

Today’s ruling in favor of American Needle is hugely important to any plaintiff seeking to challenge sports leagues; conduct under Section 1 of the Sherman Act because it preserves the opportunity for the court to review league-wide conduct on its merits.

Today’s ruling also is important from a broader antitrust perspective because it confirms that a collection of separate businesses that function as a cartel cannot “avoid antitrust law simply by creating a joint venture to serve as the exclusive seller of their competing products.”

However, whether American Needle will ultimately prevail on the merits remains far from settled.

Ted Frank disagreed:

American Needle v. National Football League isn't a tenth as important as everyone is going to be telling you over the next few days. Not only does it solely affect three or four sports entities, but nothing prevents those sports entities from reorganizing their structures to avoid the antitrust implications of this particular decision. For example, American Needle is suing the NFL because the latter (as it has done since 1963) pooled the 32 separate trademarks, owned by separate teams, into a single licensing deal. The NFL will face annoying litigation in the interim to defend this arrangement under the "Rule of Reason," but nothing prevents it from requiring teams from transferring ownership of team trademarks to the league as a condition of the franchise, and achieving the same economic result....

That said, it's a bad decision, albeit one consistent with earlier bad Supreme Court decisions on the subject of sports. Why not have a bright-line rule permitting sports leagues to act as one entity rather than expensive case-by-case determination? The odd judicially-created antitrust exemption for baseball hasn't protected that sport from the ravages of competition from other forms of entertainment.

So now that American Needle's in the record books, where can I turn next for my sports law fix? Sadly, I won't get to see Bill Belicheat frog-marched from one courtroom to another in the Tri-State Area. As Mark Conrad reported, the Third Circuit has rejected Jets season ticket holders' claims that the Patriots' unpatriotic videotaping of their opponents' defensive calls violated an abstract duty of honesty:

A group of New York Jets' season ticketholders lost their attempt to claim damages for the New England Patriots secret videotaping of the Jet's defensive calls during the 8 games played at Giants' Stadium from 2000-2007. Citing the fact that "honesty" is not a cause of action for a ticketholder who merely has a license to "enter" the stadium attend a game, the U.S. Court of Appeals for the Third Circuit, dismissed the claim, affirming the ruling of a lower court....

The ruling in Mayer v. Belichick is not surprising, but the legal analysis provides some interesting insights. Although the panel, in a unanimous opinion by Judge Robert E. Cowan, ultimately concluded that no damages can be ascertained from the suit, the discussion focuses far more on the nature of a ticket license, rather than damages.

....

That raises the question of the lawsuit's viability if the license was more open-ended. Say, it permitted entry to the facility and provided a "a professionally-played match" (of course, a team would never do this, but worth a thought). But what about legislation? What if a state passed a "Sportsticketholder Protection Act" prohibiting "unduly" limited licenses on tickets as unconscionable and mandates that the event must be of "reasonable quality commensurate in the sport." That would make some plaintiffs' lawyers salivate.

Perhaps I'll get to see some litigation over a few stolen baseball signs? Probably not. Paul Kennedy noted the long but remarkably litigation-free history of sign-stealing:

It's an unwritten rule (and there are probably more unwritten rules in baseball than those of the written variety) that a batter better not turn around to see where the catcher is lining up -- unless he wants a fastball way up and in. However, it has been a longstanding tradition in baseball for a runner at second to try to steal the catcher's signs -- but he best be careful in how he tips the batter lest someone catch a hummer by the earhole.

In 1951, Bobby Thomson of the New York Giants hit one of the most famous homers in baseball history -- The Shot Heart 'Round the World and the radio announcer, Russ Hodges, placed himself in baseball lure with his dramatic cry "The Giants win the pennant! The Giants win the pennant!"

But there was more to the story. As it turns out, the Giants, who overcame a 13 game deficit with but ten weeks to go in the season, had a very sophisticated system in place to steal signs during the second half of the season.

....

As I've said before, I don't understand the angst of baseball fans when it comes to stealing signs or injecting steroids -- baseball has always been about cheating and not getting caught.

If cheating and not getting caught is an intrinsic part of baseball, why that just makes it even more American! True, baseball has declined somewhat in popularity in recent decades; where it was once our most popular sport, it's now third on the list behind football and litigation. Notwithstanding, Major League Baseball is poised for a comeback, as the involvement of the league in the Texas Rangers' high-profile bankruptcy promises to make the game more personal for millions of Americans ("Hey, folks, we're just like y'all — bankrupt! Yee haw!") and give millions more what they want to see more than anything — Alex Rodriguez screwed out of millions of dollars in deferred compensation. Matthew Futterman gave us the pre-game:

The battle over the Texas Rangers baseball franchise escalated to an all-out war Monday, with the team filing for Chapter 11 bankruptcy protection in a pre-packaged effort to force a sale to Hall of Fame pitcher Nolan Ryan and his partner, Pittsburgh attorney Chuck Greenberg, after a months-long fight over the fate of the franchise.

....

According to court filings those liabilities include almost $25 million that the team owes slugger Alex Rodriguez in deferred compensation and almost $13 million it owes pitcher Kevin Millwood. Neither player is with the team anymore.

The deal received the blessing of Major League Baseball CommissionerAllan Bud Selig, even though people involved with the process say two other groups bid more for the franchise.

...

During the past two months the dispute became a high-stakes game of chicken between Major League Baseball, which threatened to seize the franchise and use Mr. Selig's powers to act "in the best interests of baseball" to force the sale, and the creditors, who threatened to force the team into an involuntary bankruptcy proceeding.

Behind the bluster, lawyers and bankers representing both sides continued to try to negotiate a settlement. According to a member of the creditor's group, the two sides were about $10 million to $20 million apart at the end of last week but couldn't bridge the gap.

With prospects dimming for a negotiated deal that would hand the team to the Greenberg-Ryan group, lawyers for the baseball team and Major League Baseball decided to bring the pre-packaged bankruptcy to court Monday in an attempt to maintain control of the process and pre-empt any efforts by creditors to force a sale to another bidder.

If this doesn't work out, I'll add some advertising to these Round Tuits to raise a bit of cash for a rival bid for the team. If I'm successful, I'll immediately move the Rangers to Seattle; I love that town and they deserve to have a professional ball club of their own.

Government tends to fill our lives until we refuse to allow it to do so any longer. To justify its own existence and continue its growth, government seeks to do more and more, to be more proactive and more comprehensive, to take care of us until we're unable to care for ourselves, and always to do for us and to us what it believes to be right. This is the character of government. Don't cite those instances where government has exercised restraint or diminished its role despite opportunities to enlarge it; these are the exceptions which prove the rule.

Government is not necessarily evil, nor need it be a "necessary evil". We deserve the government we demand. What has appalled me of late is our collective tendency to demand more rather than less intrusive, controlling government. It's odd, really — in business, every company no matter its size, industry, or the quality of its workforce and leadership has (even if it cannot readily identify) a few core competencies; companies expand beyond those core competencies at their peril. Why do we expect government to be different, able to competently perform every task it takes on? Those who favor very limited government should realize that there are nonetheless certain core competencies where government can and should perform well; those who favor much broader government should realize that expansion into areas beyond government's core competencies generally produces little value at great cost. Unlike businesses, when government expands beyond its core competencies, it does so at our peril.

We've drifted very far from the fundamental concept of freedom so eloquently described by Justice Brandeis in his Olmstead dissent:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.

Have we abdicated our responsibility to do for ourselves, trading our liberty — our right to be let alone, as Brandeis termed it — for the childish freedom of irresponsibility and the expectation that government can and should address every ill? I hope we haven't, but these days I see as many threats from those who act for us, often with the best intentions, as I see from those who would do us harm with the worst intentions. There were a number of outstanding posts this past week which touched on issues of liberty and the right to be let alone.

David Rittgers related his experience at a White House-sponsored conference:

First, they came for the sex offenders. I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress.

....

Next, they will come for suspected terrorists.

....

I attended a scholars meeting with the Obama administration’s Detention Policy Task Force.... I gave my views on where detention policy should go, as did a conference room full of experts on the laws of armed conflict and criminal justice (who shall remain anonymous, as this meeting was off the record). I was dismayed to hear a law professor from a prestigious university propose a system of preventive detention as the logical solution to countering terrorism. Worse yet, to make this law less provocative, the professor further proposed that preventive detention should be applied in other criminal contexts, so that the department of pre-crime would not be seen as unfairly targeting only enemy combatants overseas. This professor had taught many of the Department of Justice staffers in the room, and I looked around to see heads nodding at the suggestion.

I responded forcefully that such a system is antithetical to American traditions of due process.... One of the reasons that few people turn to political violence in the United States is that the Bill of Rights bars the government from telling the citizenry how to worship, what to think, and what they can say. Generally speaking, you have to actually be a criminal to get charged as one.

....

Unfortunately, there are more than a few people in favor of such a system. Jack Goldsmith and Neal Katyal (now the acting Solicitor General) propose a terrorism court. Sens. McCain and Lieberman want to treat all terrorism suspects as enemy combatants. Sens. Lieberman and Brown want to strip the citizenship of terrorism suspects and try them by military commission. Sens. Graham and McCain plan to close Guantanamo by creating a preventive detention court. Take a conservative plan to deal with enemy combatants captured on the other side of the world, strap on some liberal angst over tea parties and militia groups, and you’ve got a bipartisan plan for wholesale degradation of everyone’s liberties.

And when the proposal comes, the first thing they’ll say is that this is how we already deal with sex offenders.

Scott Greenfield writes frequently and compellingly about the erosion of rights generally and in criminal law particularly; he commented on Rittgers' post:

Once we break through the wall once, however, it becomes increasingly easy to do so again. Evil isn't limited to sex offenders. Or terrorists. Or drunk drivers. Or gangbangers. Or drug dealers. Or jaywalkers. People like me, who speak up for people I despise, are dismissed as clueless. We can't appreciate what it means to lose a child. How would we feel if our daughter was brutally raped and murdered?

The answer is simple, that I would want to kill the person who touched my child, rip him limb from limb, induce excruciating pain and stare into his eyes until the life flowed out. I'm no less feeling than anyone else, and all my visceral reactions are intact. But in the quiet moments when I'm not filled with anger and hatred about the evil that exists in the world, I'm capable of reflecting on why visceral reactions don't make for sound public policy.

Visceral reactions have been codified time and again, however, and Radley Balko has diligently catalogued some of the more distressing examples; this week, he described another example in which community fears and unbounded police authority translated into a "perfectly lawful" evisceration of Constitutional rights:

To hear them tell it, the officers who apprehended 39-year-old David Pyles on March 8 thwarted a mass murder. The cops “were able to successfully take a potentially volatile male subject into protective custody for a mental evaluation,” the Medford, Oregon, police department announced in a press release. The subject had been placed on administrative leave from his job not long before, was “very disgruntled,” and had recently purchased several firearms. “Local Law Enforcement agencies were extremely concerned that the subject was planning retaliation against his employers,” the press release said. Fortunately, Pyles “voluntarily” turned himself over to police custody, and his legally purchased firearms “were seized for safekeeping.”

....

“They woke me up with a phone call at about 5:50 in the morning,” Pyles says. “I looked out the window and saw the SWAT team pointing their guns at my house. The officer on the phone told me to turn myself in. I told them I would, on three conditions. I would not be handcuffed. I would not be taken off my property. And I would not be forced to get a mental health evaluation. He agreed. The second I stepped outside, they jumped me. Then they handcuffed me, took me off my property, and took me to get a mental health evaluation.”

By noon, Pyles had already been released from the Rogue Valley Medical Center with a clean bill of mental health. Four days later the Medford Police Department returned Pyles’ guns, despite telling him earlier in the week—falsely—that he would need to undergo a second background check before he could get them back. The Medford Police Department then put out a second press release, this time announcing that it had returned the “disgruntled” worker’s guns and “now considers this matter closed.”

....

Joseph Bloom, a psychiatrist at Oregon Health and Science University and an expert on civil commitment law, says the police who apprehended and detained Pyles likely were acting within the state’s laws. Bloom says the police are permitted to decide on their own to take someone in for an evaluation, and that there’s no requirement that they first consult with a judge or a mental health professional.

Bloom believes this is a wise policy. “It’s important to remember that this is a civil process,” he says. “There’s no arrest. These people aren’t being taken to jail. It’s not a criminal action.”

SWAT teams, guns, and handcuffs …but not a criminal action? And what if Pyles had refused to “voluntarily” surrender to the police? “Well, yes,” Bloom says. “I guess then it would become a criminal matter.”

If what happened to Pyles is legal in Oregon or elsewhere, we need to take a second look at the civil commitment power. Even setting aside the SWAT overkill in Medford, there’s something discomfiting about granting the government the power to yank someone from his home based only on a series of actions that were perfectly lawful.

Rick Horowitz wrote a tremendous post this week about the destruction of personal rights in the course of our failed "War on Drugs". If you read just one post this week, Horowitz' should be that one:

The Constitution was meant to place limitations on what governments could do. The rights — actually we called them “powers” — of government were limited. The rights — we actually called them rights! — of human beings were not. Except to the extent that it was necessary to give some up in order to give those rights — now called “powers” — to government.

The idea was to give up just enough of our rights to allow a government to do the most basic of tasks: keep us safe from people — like Kings, or maybe dictators, foreign countries, or maybe despots within our own country — who would try to reduce the rest of our rights. The ones we kept.

....

Where we previously thought the Constitution limited the rights (remember, we called them “powers”) of the government, our government began to promulgate the theory that the limitation was actually on our rights (remember, we called them “rights”; actually, sometimes we referred to them as “freedoms”).

So it came to be that today people mistakenly believe that the Constitution limits the rights of individuals. And if a right claimed by a person is not “in the Constitution,” then it doesn’t exist.

The pervasiveness of our non-war "Wars" — on Poverty, on Crime, on Drugs, on Terror — has conditioned in us not only a diminished sense of our own rights but also a tendency to eagerly bargain these away for whatever new cure government proposes for whatever ails us that that moment. Sometimes we forget that liberties lost are seldom regained; sometimes we don't appreciate those losses, as each one seems benign in isolation and the larger picture is difficult to see; sometimes we know precisely what we're doing and what consequences may follow and we simply make a bet that the price will be paid by another. As Scott Greenfield wrote recently on this last point:

There is a law or regulation covering essentially every aspect of human existence. Over time, lawmakers with too little to do create the rules that keep us from bumping into one another by telling us to keep to the right. They protect us from ourselves by telling us to wear seat belts and helmets, and eat less salt. They appease grieving parents and outraged communities by crafting laws named after dead children that duplicate, triplicate, existing laws with minute additional requirements. In isolation, some people applaud these laws as serving a good function. Proponents are always well intentioned, but they become part of the vast mass of laws regulating us.

For every regulation, there must be a consequence for its violation.... [A]s a society, we seek the elimination of crime and encourage and support the police in their efforts to enforce our laws. We do not, however, think much about the scope of our laws that render each of us a criminal, to some greater or lesser extent.

If there was a machine that would detect every violation of law, we would all be found guilty of something. Granted, most of us would be prosecuted for petty, stupid offenses, but they are offenses nonetheless. If they are so petty and stupid, and if we wouldn't want to be prosecuted ourselves for them, why do we support their existence, enforcement and prosecution for others? Largely because we don't think it will ever happen to us. We don't mind unfairness to others anywhere near as much as we hate it when it happens to us.

When I was a child, I was taught that if I was one of the good guys who obeyed the law I had nothing to fear from the police; I understand now that there is a difference between "the law" and "the laws" and that the latter are so broken and conflicted that one cannot obey each and every one. More disturbing, however, is the realization that the police do not see us as good guys and bad guys. We are all suspects to them, and law enforcement has become little more than an exercise in their personal authority. Mirriam Seddiq noted that fear of law enforcement is not the same as respect for the law:

My pop brought us to the U.S. in search of the American dream and good beer. Yet, he snickers when people say "this is a free country." He reminds me of the fact that if I am in eastbejesus Idaho at midnight and there is not a soul in sight and a stop sign on the corner, I will stop and look both ways before I go forth on my journey. Why, he asks? Is it because we respect the law? Because we, as opposed to the uncivilized wretches in other countries where no one waits in line for the bus, are first world, first class and have an inherent and innate love of order? No, he says. It's because we are afraid. There could be a cop around that corner, behind the bush. Maybe, now, there is a camera tracking that road. To think its a love for the order the laws bring is just silliness.

....

I wonder at what point we will stop and say enough already. Sheesh. I think I can figure some stuff out myself and don't need the powers that be legislating my every single move. I think Mr. Greenfield is correct, though, that unless those folks who say "never me" spend a few hours in a jail cell, things won't get any better.

I don't want to lose my respect for the law, but as for the laws and those charged with their promulgation and enforcement... well, there oughta be a law.

It's no secret that I've been about as fascinated as a Yank can be with Britain's general election and the coalition government it produced. I've followed news and opinion closely and when my interest often outstripped my understanding, I stretched Charon QC's and Carl Gardner's admirable patience with my questions. One of the more remarkable policy objectives announced by the coalition government is their proposal to extend anonymity in rape cases to the accused as well as the alleged victim.

The proposal has been criticized by womens' groups, which have suggested that it "gave the impression that women frequently lie about rape and could put them off coming forward"; as one advocate put it, "If a guy gets off it does not necessarily mean he didn't do it. The underlying, subtle message of this is that women tell lies and we must protect men from that. Women will pick that up and as a result some will not report rape."

Well, let's be grown-ups here; a not-insubstantial number of criminal complaints are fabricated, and rape allegations are no exception. How many false complaints of rape would it take to justify the proposed anonymity policy? If, as the policymakers suggest, the stigma of a rape accusation is such that anonymity for the accused is warranted prior to conviction, how stigmatizing do other crimes need to be before anonymity would be needed there as well? If anonymity for accusers encourages the (true) reporting of crimes which have occurred, should all complainants be protected as rape complainants are?

Gardner suggested that questions like these are beside the point:

It’s true of course that a man’s life can be ruined by an allegation of rape, even if he’s acquitted in the end. Maybe that’s a worse problem than it is for those acquitted on other charges because of the sensational interest there can be in rape cases. But there’s a strong case against the change. I doubt very much that anonymity will much affect women’s likelihood to report rape cases overall, or the conviction rate. What it will do though is reduce the chance of publicity about one rape case triggering reports from women that the man accused attacked them in the past, and identifications by women who have reported a rape, but believe they now recognise their attacker having seen him in connection with another case.

The law of rape is a fraught area. The presumption of innocence must not simply be thrown out of the window in pursuit of convictions at all cost; but nor should wrong-headed extensions of the scope of the presumption be used as a barrier to investigating rape cases. The presumption of innocence does not require anonymity, and I’m not persuaded we should grant it.

In a subsequent post, Gardner makes the case that not only does justice not require anonymity, but anonymity can prevent justice being done:

It’s of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. So said Lord Chief Justice Lord Hewart in 1923, quashing a guilty verdict arrived at by magistrates in private with their legal adviser, who had a conflict of interest.

The principle has two aspects. First, the justice system must be visibly free of bias. But second, and more fundamentally, the workings of justice must be seen in the first place. Only if justice is carried out publicly can we know it’s being done fairly.

....

It’s sometimes argued that naming rape defendants means they’re not treated as innocent until proved guilty. That, though, is a misunderstanding of the presumption of innocence. It’s a vital principle, preventing the state from punishing anyone, for instance by imprisonment, unless a court is satisfied of their guilt. But it doesn’t mean, and never has meant, that nothing adverse should happen to you if you’re suspected of a crime.

....

I’m content that there be limited restrictions on public justice, in order to protect lives, to ensure trials are fair, to protect children and to protect rape victims. But public justice is too precious to make any more exceptions than are absolutely necessary.

Perhaps the solution to the problem of false rape allegations is not protecting the identities of the accused but more aggressively prosecuting false complainants, trusting that such prosecutions will not deter victims from reporting true crimes.

One of my favorite programs, Lost, ended this week. In its early episodes, it was an engrossing mystery; in its later ones, it was nothing more than escapist television, but I loved it throughout. I can honestly say that I never learned anything from Lost which was pertinent to my legal practice, but others (no pun intended) did find a few legal lessons on Craphole Island. Victoria Pynchon was one; she described the survivors' progress as negotiators from the first episode to the final one:

If the negotiated resolution of disputes is all about values; personal narratives; and, collaborative problem solving, the televised-negotiated-resolution-Bible is Lost, which ended a six-year run last night in a series of spiritual awakenings for each of the major characters.

....

As I became more and more involved in the complexities of the Lost narrative, the through line for me was always the Prisoner's Dilemma. The survivors lied about their motives. They betrayed one another. They remained silent when speaking might have saved them. They demonized "the others" only to find that demons inhabited their own hearts as well. When the squabbling amongst them threatened to pull them apart, another threat from "the others" or the wild boars or the deadly black smoke or the hydrogen bomb, drew them back together. And over time, they became kin.

Though the island's economics were a bit primitive, Daniel Schwartz and Alan King and Tony Kessler pointed-out examples relevant in employment and HR matters. Schwartz wrote, "Another theme that the show continually relied upon: If you can't live together, you'll die alone. It's a good lesson in team dynamics; companies that have employees that work well together, thrive." King and Kessler identified no fewer than five lessons Lost taught about hiring, safety, and other workplace issues. All well and good, but I still just really want a spin-off series wherein Detectives Ford and Straum solve crimes with the assistance of "Number One" Hurley and "Number Two" Ben and Desmond pops in once a week to call someone "brother".

Price was an object for several legal bloggers this past week. Jordan Furlong acknowledged the conventional wisdom that the legal profession shouldn't seek to compete on price and then encouraged lawyers in troubled and competitive practice areas to disregard it:

[I]t’s both sensible and logical to tell lawyers not to compete on price. Yet for all that, I’ve come to believe that it’s not good advice anymore. I think we need to learn, as a profession, how to compete on price in ways that sustain our businesses.

It’s fine, in the abstract, for a lawyer to refuse to match or beat a rival’s lower price for a given product or service. The first few times a lawyer loses a client that way, she can content herself that she held the line against the devaluation of her services and that a client who only cares about price will be a difficult client throughout. But what happens when she loses the fifth client, or the tenth, or the fiftieth, because of price? What happens when clients start to consistently say, “I can get these services at a substantially lower price down the street,” or “I like working with you, but I can’t justify the premium that you charge”?

....

But you don’t need to compete on price if you can go one better: compete on cost. Reduce the inefficiencies in your practice, streamline your processes, systematize where feasible, outsource if possible, reallocate resources to match the appropriate level of talent to the appropriate sophistication of tasks. This isn’t about freezing salaries or eliminating positions or taking away free coffee or all the other myopic expense-reduction steps many law firms took during the financial crisis. This is about restructuring your business in smart ways that reduce waste, cut down on system leakage, fine-tune your engines and upgrade your capacity.

Jay Shepherd suggested that when price aligns with value, lawyers should hold firm; moreover, even in the present economic climate, when value justifies it, lawyers shouldn't avoid raising their prices:

It's oversimplifying things to say that value pricing is about saving clients money. Instead, and much more importantly, it's about aligning your prices with the value the clients place on your services. Without that alignment, there is enormous waste and client frustration. Plus, the perverse incentives and unintended consequences of hourly billing artificially inflate client costs. So yes, you can raise prices for premium service and still save clients money.

Bottom line: clients will pay for value. If you're constantly discounting your fees, what does that say about the value you provide?

Norm Pattis has practiced criminal defense long enough to know how to set a flat fee, and he explained that such fees such fees should be avoided in criminal matters for their great potential to harm the attorney-client relationship:

A flat fee places a premium on efficiency. If you expect a case to take 40 hours of time to resolve, you know what to charge to cover your time.

But suppose a black hole opens up in the middle of the case? Suddenly you learn that the case is far from typical.

....

Discontent lurks at the periphery of every flat fee case once a black hole opens up, sucking time out of the world as if there were an infinite amount of it to be had.

A far better course is to charge an hourly rate. Negotiate a rate that reflects the complexity of the case, your experience and what the market bears in your area. In that case, a client is forced to consider the benefit of each additional increment of cost.

....

There is no good way to charge for legal services, I am persuaded. Clients come in need. They are afraid and angry. They want a hero, a savior, a warrior. You offer them what you can. Most often it is enough. But sometimes it is not. A client grows disenchanted, angry, they want what you cannot give. It is a risky thing to agree to represent a person in crisis. You cannot tell where people will turn in the dark of night. What to charge for this work is a topic about which I am not at peace.

Jamison Koehler commented on Pattis' position:

For me, without Pattis’ vast experience, the jury is still out. Yes, the hourly rate does offer many advantages. It assures that the lawyer is compensated for every hour he or she spends working on the case. And it prevents the client from paying for hours the lawyer has not devoted to the case.

At the same time, based on what I know now, I still prefer the flat fee, at least for the type of cases I currently handle. The flat fee allows the client and me to deal with the money issues upfront and then to put them behind us, without the continuing distraction. The client pays me the fee. I put the funds into a bank account held in trust for the client. And then I start to work on the case. There is no need to track my hours or to justify the time I spend on the case. I never need to worry that I may be wasting the client’s money by pursuing deadends. And there are no uncomfortable discussions about replenishing the trust account when funds get low.

....

Norm Pattis concludes, and I agree, that there are no clear answers with respect to charging for legal services. Even after many years, Pattis says, he himself is still not comfortable with how to charge and what to charge. The relationship shouldn’t be about money at all, he says. And yet there it is.

I think that once again, Lost may have the answer. In uncertain territory, open-ended fees do not ensure success and without hope for a timely rescue, flat fees carry great risks; the solution, my friends, is that we work for fish biscuits. Namaste.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Counterfeit Chic, Wikipedia (Design Patent for Statue of Liberty), and Paris Odds n Ends Thrift Store.