Deutsche sind Merkwürdig

We all know that Germans love David Hasselhoff, but Slate highlights another German quirk -- their New Year's Eve obsession with an old British comedy sketch, "Dinner for One", known as "Der 90 Geburtstag" in zany Deutschland ("The 90th Birthday"):

Every New Year's Eve, half of all Germans plunk down in front of their televisions to watch a 1963 English comedy sketch called Dinner for One. Walk into any bar in Bavaria and shout the film's refrain: "The same procedure as last year, madam?" The whole crowd will shout back in automatic, if stilted, English: "The same procedure as every year, James." Even though Dinner for One is, according to the Guinness Book of World Records, the most frequently repeated TV program ever, it has never been aired in the United Kingdom or the United States, and most of the English-speaking world is ignorant of its existence. When Der Spiegel probed the mystery last New Year's, it found that the BBC had not only never contemplated broadcasting this veddy British nugget in the United Kingdom, the BBC's spokesperson had never even heard of it.

Dinner for One . . . has rattled around the cabaret circuit for decades. Written by British author Lauri Wylie in the 1920s, it presents a morbidly funny story in miniature—(just 11 minutes on TV): Elderly Miss Sophie throws her birthday party every year, setting the table for her friends Sir Toby, Mr. Pommeroy, Mr. Winterbottom, and Adm. von Schneider, while conveniently ignoring the fact that they've all been dead for a quarter-century. [ ] Her butler James manfully takes up the slack by playacting all of them. He serves both drinks and food while quaffing toasts on behalf of each "guest," a bevy of soused British noblemen and von Schneider, who toasts Miss Sophie with a heel-click and a throaty "Skål!" [ ] James waddles to and fro, trips repeatedly over the head of a tiger-pelt rug, declaims each guest's pleasantries boozily, spray-fires the table with mispoured drinks, and downs a little water from a flower vase. Each course begins with the signature refrain: "The same procedure as last year, madam?" "The same procedure as every year, James." The sketch ends with James' final "procedure": bedding the old lady himself.

. . . .

The show's popularity spread to Scandinavia, where it is typically watched on December 23, as well as Switzerland, Austria, South Africa, Australia, and Latvia. The show has been broadcast more than 230 times. You can watch it dubbed in Plattdeutsch, a northern German dialect (with or without a German introduction), ponder its scholarly depths in a Latin translation, take in live Dinner for One supper theater, cook up Miss Sophie's traditional meal, or just drink briskly along with the actors, and the rest of northern Europe.

TGIS: Thank God It's Schadenfreude! (46)

This week's joy in the misfortune of others comes courtesy of the Financial Times, via Daniel Drezner (from Wednesday, December 28; link good at time of posting):

Spain’s Socialist government on Tuesday officially abolished the siesta, the extended lunch break.

A new law decrees that lunch breaks will be limited to one hour to allow civil servants to clock off at 6pm.

. . . .

[Minister for Public Administration Jordi] Sevilla said he wanted civil servants to “achieve the same amount of work in less time”.

. . . .

Still, change will not be easy. “The lunch is the main way personal relationships are established,” says Alejandra Moore, a communications consultant.

“I cannot imagine achieving anything meaningful over a 45-minute lunch.”

[Previous TGIS]

You Can't Spell Sedition Without I, D, I, O, T, and S

How Appealing points out an interesting Chicago Tribune article about the efforts of several University of Montana law students to clear the names of individuals jailed during World War I under Montana's sedition law:

After Montana enacted its Sedition Act in 1918, an array of ranchers, farmers, loggers, butchers, cooks, and bartenders--people scratching out a living in fierce winters and scorching summers of the rugged West--was convicted of making anti-government statements. Some of the remarks were little more than profanity-laced tirades uttered in saloons.

For example, [attorney, journalism professor, and author Clemens] Work unearthed the case of Adam Steck, a 53-year-old German immigrant bartender in the Trocadero Saloon in Helena who was sent to prison for calling the American flag a "dirty rag" and saying that "this damned country is bankrupt already and do they expect to lick Germany? No, they never did and they never will."

. . . .

"Montana's law was the broadest, most repressive anti-speech law passed by a state in the history of the country," Work said. Three months later, Congress passed a national sedition law, "largely due to the influence of Montana politicians and legislative leaders," he said.

Except for three words, the federal law was a copy of Montana's law. About 2,000 men and women would be convicted under the national Espionage and Sedition Acts, including Eugene V. Debs, who organized the American Railway Union, the nation's first industrial union, in Chicago.

It is not lost on those involved in the clemency effort that much of today's unpatriotic speech from the anti-war Left would have been severely punished under the World War I-era sedition statutes. As one of the Montana law students noted, "If [Montana's sedition] law was around now, I probably would be in jail myself--relating to Iraq". Indeed, when one compares them to the Bush-as-Hitler/Stalin/Satan vitriol produced on a daily basis by left-leaning blogs, the seditious statements for which Montanans were jailed in 1918 seem quaint: "These damn fools still think they can lick Germany, but all they get is a good licking in France every day." "I would sooner fight for the Kaiser than I would for the United States." "Americans are no good, and I hope that Germany will win."

I'm proud that we're more politically enlightened than our forebears; the criminal punishment of unpatriotic speech is abhorrent and, despite our present circumstances, we have not made any meaningful effort to criminalize or substantially curtail anti-administration or anti-war speech. Montana Governor Brian Schweitzer's comments are, I believe, representative of the sentiments of the overwhelming majority of politicians from both parties: "I will defend our right to call a politician a son-of-a-bitch at any time, even when they are calling me a son-of-a-bitch."

There is a difference, however, between having a legal right to loudly denounce your country and it being acceptable or advisable to do so. Those Americans who criticized our war against the German Empire in 1918 should not have been imprisoned for their speech; neither should anti-war speakers today, however belligerent, be jailed when their speech does not constitute treason. Notwithstanding, Adam Steck and his fellow pro-Kaiser Montanans would have been well-advised to pipe down once our doughboys went "over there". It's never too late for those Americans who favor our enemies to learn from Steck's lack of common sense, even when there is nothing resembling a federal sedition law to teach them.

As an American, you have the right to root against your own nation in time of war, but doing so does not make you a good American.

You Can't Win Them All

Although I reveled in yesterday's Blawg Review Awards news, Wired has brought me back down to Earth today -- I was not listed amongst "2005's 10 Sexiest Geeks". While some might be discouraged by an 11th place showing, I take this as a worthy challenge for the new year. I resolve to be both more sexy and more geeky in 2006!

Infamy or Praise -- Now With 231% More Ego!

Infamy or Praise's Dante-themed Blawg Review #35 has been recognized as the Blawg Review of the Year 2005 in the inaugural Blawg Review Awards. Nevertheless, to protest Blawg Review's lack of regular coverage of Native American legal issues, Sacheen Littlefeather will decline the award on my behalf. No, of course that won't happen; actually, I'm going to have "Blawg Review of the Year 2005" tattooed on my forehead and, from this point forward, introduce myself as "Colin Samuels, Blawg Review of the Year 2005 winner. Damn glad to meet you."

This is no time to rest on our laurels, however. Next week, things get back to normal as Evan Schaeffer hosts the thirty-eighth edition of Blawg Review at his Legal Underground; start the new year off right by reviewing the submission guidelines and recommending the best legal blogging you see during the coming week.

The Infamous and the Praiseworthy

. . . wish you a Merry Christmas and a Happy Hannukah.

TGIS: Thank God It's Schadenfreude! (45) . . . The Sequel's Sequel!

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

Florida's attorney general has spearheaded an aggressive campaign against unsolicited e-mails, or spam. But as a candidate for governor, he appears to be generating some unwanted Internet clutter himself.

. . . .

[A] report in Thursday's St. Petersburg Times said [Attorney General Charlie] Crist, a Republican gubernatorial candidate, had annoyed some residents of the state by sending them unwanted e-mails promoting his candidacy and soliciting campaign donations.

Joe Spooner, a 41-year-old investment adviser, told the newspaper he had no idea how the Crist campaign got his e-mail address but repeatedly tried to unsubscribe.

After his fifth request to be removed, Spooner sent the Crist campaign an e-mail of his own. He accused Crist of hypocrisy because of the way he seemed to have forgotten all about his vocal crackdown on spammers.

'Do I need to file a complaint with the attorney general's office?" Spooner wrote.

. . . .

[Vivian Myrtetus, Crist's spokeswoman, said] "The attorney general does not consider this spam and is, as you know, at the forefront of protecting citizens against that."

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (45) . . . The Sequel!

This week's bonus joy in the misfortune of others comes courtesy of WFMY in Greensboro, North Carolina (from Friday, December 23; link good at time of posting):

Police in Scarborough [Maine] say they caught a burglar who had just broken into a home on Broadturn Road, because the thief couldn't get his car out of the burgled home's driveway.

Police say Shawn Tarr, 29, was spinning his wheels on the ice in the driveway when the owners came home at about 11:45 pm Thursday night. Tarr told them he pulled into the driveway to turn around, and got stuck on the ice. The homeowner agreed to try to help him get the car moving, but when she saw her laptop in the car's backseat, she took it, and went in the house. That left Tarr outside, frantically trying to move the car.

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (45)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Wednesday, December 21; link good at time of posting):

The mayor of Arnold Schwarzenegger's Austrian hometown on Tuesday begged the California governor to reconsider his decision to cut ties to the city after locals assailed him for his death penalty stance.

Siegfried Nagl, mayor of the southern city of Graz, said he wrote Schwarzenegger pleading with him not to return a ring of honor bestowed on him by officials in his birthplace in 1999 and reassuring him that most residents still admire him.

"I hope that very soon we'll hear you say, 'I'll be back,'" Nagl told the actor-turned-politician, one of Austria's most famous sons.

On Monday, Schwarzenegger caused a stir by turning the tables on Austrians who criticized the governor's refusal to block the executions of convicted killers. He sent Graz officials a letter asking them to remove his name from a soccer stadium and stop using it to promote the city, and said he was giving back the ring because it "has lost its meaning and value to me."

His demands effectively pre-empted a drive launched by opponents in Austria who already were gathering signatures on a petition calling for the 15,300-seat arena in Graz, about 120 miles south of Vienna, to be renamed.

[Previous TGIS]

Cool Hand Saddam

Saddam Hussein reports that he's been tortured by his American captors during his imprisonment. Sadly though, this may turn out not to be true. Although Hussein is indisputably one of the world's leading authorities on torture, his reputation for veracity has often been a bit shaky; moreover, I read this in The New York Times, so it could just be a figment of someone's imagination.

If true, however, I would have to concede that this pattern of abuse clearly demonstrates that the United States cannot be trusted to maintain Saddam in a humane manner. Since he claims to still be their president, let's give the Kurds a chance to care for him.

CrackBerry Jam (Second Update)

In an op-ed piece in today's Wall Street Journal, Jim Balsillie, the Chairman and Co-CEO of Research in Motion, discusses the RIM-NTP flap (subscription required) and concludes that NTP was right all along. Oops, my mistake -- he describes the matter as "one of the most flagrant abuses of the patent system". Apparently he's not seen the "Scented doll with the appearance of an aged person" (United States Patent 6,805,607).

Who are we? Wire we here?

The Wired GC hosts the thirty-seventh edition of Blawg Review. Unlike the unfortunate Admiral Stockdale in his Vice-Presidential debate performance, The Wired GC is able to answer the above questions -- we're here to be immortalized in poetry! It would take a truly irredemable grinch not to feel his or her heart grow three sizes upon reading this instant holiday classic.

Next week's issue of Blawg Review is a special edition -- the first Blawg Review Awards -- so I don't feel the need to harrangue you all to review the submission guidelines and recommend the best legal blogging you see this week; in fact, I'm telling you to just take the week off to rest up for the awards issue. The Wired GC is sure to be in the running for several Blawg Review Awards (can we start calling them the "Eddies"?), as will be "Brokeback Mountain", since the last taboo in American culture is to not nominate a gay cowboy movie for any available award.

Feed Me, Seymour

Coincidentally on the day when I added the 200th feed to my news aggregator (The Pocket Part and NewsGator Online respectively, if you're keeping score at home), I see this comment from Andrew Raff of IPTAblog in a post about feed hijacking:

Full-text RSS/Atom feeds are wonderful for information addicts. A newsreader brings new articles and posts in from around the web and makes it possible to skim through hundreds of sites very quickly. Well, the upper limit is probably around 200 where reading blogs is not one's full-time vocation.

CrackBerry Jam (Update)

A couple of people have e-mailed me concerning yesterday's post; these correspondents touched on a topic which The Economist's article discussed, but which I did not quote -- namely, the "worthiness" of NTP's position. As the article noted:

RIM is generally regarded as the victim of an injustice. Founded 21 years ago by two engineering students who still help run it, the company is being held for ransom by a “patent troll”. The monster emerging from under the bridge is an entity called NTP, which doesn't actually make or sell anything—it doesn't even have a website, for goodness sake. But it has hired a handful of lawyers to enforce its patents and in settlement talks this week, it was demanding almost 6% of RIM's sales in America until 2012 when its patents expire—about $1 billion. NTP's threat of a legal injunction to shut down BlackBerry unless it pays up is viewed as little short of extortion.

I agree with the article's conclusions that the validity and the "justice" of NTP's claims are separate issues. If I could digress for the second time this week into a tortured analogy, let's suppose that a particular town has a property law on the books to the effect that a homeowner may charge a fee to anyone who stops in front of his house. We can debate whether this is a good law: Are these fees deterring desirable public freedom of movement? Would the local real estate market be crippled if prospective homebuyers knew they could not collect these fees? We also can debate whether homeowners given this opportunity to charge fees should do so, but unless the law is changed or abolished, there is a definite right which could be enforced.

Again assuming that this hypothetical law is valid, a court considering a claim for fees should apply the law without considering extraneous matters. It should be immaterial, to mention a few examples, whether a particular homeowner-claimant is personally bothered by people stopping outside his house or is just looking for a quick buck, whether that claimant worked hard to raise the purchase money for the house or simply inherited it without working a day in his life, or whether the person assessed the fee knew of the town's peculiar law or the identity of the homeowner before whose house he stopped. The relative personal qualities of the homeowner-claimant and the person assessed the fee are similarly irrelevant; if the law is valid, it must be evenly-applied to all.

Granted, there are some lingering questions pending before the Patent and Trademark Office, concerning the validity of NTP's particular patent claims; not at issue (at least not yet) is the general validity of the patent system vis-á-vis the types of claims made by the NTP patents or the enforceability of valid patent rights against parties who infringe those rights.

[SECOND UPDATE]

TGIS: Thank God It's Schadenfreude! (44)

This week's joy in the misfortune of others comes courtesy of The Register (from Wednesday, December 14; link good at time of posting):

A love-struck Frenchman wooed the online girl of his dreams for six months - only to discover at their first meeting that he had in fact been chatting up his own mother, Yahoo! reports.

This nightmare scenario (for Daniel Anceneaux that is - as far as we're concerned Xmas has come early) began when the Marseilles X-Ray technician came across a fellow internet lurv-seeker called Sweet Juliette.

A shaken Anceneaux takes up the story: "Mum called herself Sweet Juliette and I called myself The Prince of Pleasure, and unfortunately, neither one of us had any idea who the other was. The conversations even got a little racy a couple of times.

. . . .

Anceneaux continued: "I walked out on that dark beach thinking I was going to hook up with the girl of my dreams. And there she was, wearing white shorts and a pink tank top, just like she'd said she would.

"But when I got close, she turned around - and we both got the shock of our lives. I mean, I didn't know what to say. All I could think was, 'Oh my God! it's Mama!'."

It gets better. A policeman then turned up and "cited them for visiting a restricted beach after dark". Mum Nicole confessed: "Danny and I were so flustered, we blurted out the whole story to the cop."

Nicole said: "The policeman wrote a report, a local TV station got hold of it - and the next thing we knew, our picture and our story was all over the 6 o'clock news. People started pointing and laughing at us on the street - and they haven't stopped laughing since."

[Previous TGIS]

CrackBerry Jam

The Economist offers a cool-headed and correct assessment (subscription required) of the Research in Motion (RIM)/NTP patent saga:

The easy conclusion is that the patent system is being cynically used to wreck the livelihoods of honest folks who are the true innovators. That's wrong. The chief lesson of the BlackBerry saga is that patents are there to be protected. If the system is to have any meaning, its integrity must be upheld for the sake of the businesses that rely on it and the public that benefits from innovation.

. . . .

Distressed BlackBerry users argue that too many of the world's workers rely on the device for the service to be shut down. But many of their jobs depend on the principle at stake in this case—that the courts should protect intellectual property because it rewards inventors by conferring a real title to an intangible asset. Business requires confidence that intellectual property will be respected and infringers brought to justice, regardless of whether the litigant is using the patent or not. Only with that security will firms patent and license their inventions, thus allowing others to use their ideas.

[UPDATE]

AdNonSense

Chris Anderson of The Long Tail believes that he's "hacked" Google's AdSense/AdWords online advertising system:

Google ads are pay-per-click. They're based on an auction model, so for each keyword/phrase the best performing ads (some combination of those that generate the most clicks and those who will pay the most for those clicks) rise to the top, displacing others. For popular keywords, I'm sure that's an efficient, highly-optimized model.

But I chose a bunch of very obscure terms to advertise against. And my ad sucks (see above) and nobody ever clicks on it. The result is that I get hundreds (sometimes thousands) of impressions a day for free. Every now and then Google notices that my ad isn't performing, so I have to raise the price I'll pay for each click (I'm now at $0.40). But since I get no clicks it doesn't matter.

Anderson thinks that the value of this free advertising is "at most a couple bucks a day" and his takeaway is "probably close to zero"; a few commenters on his post doubt that he's receiving even that much value. One writes, "At best, the value received for this is zero. At worst, hes [sic] doing himself some brand damage." Another characterizes Anderson as "one more unsuccessful Google advertiser".

This is all quite interesting, but what's more intriguing is something Anderson requests of his audience at the end of his post (emphasis in original): "[I]f anyone were to actually click on the ads, I'd quickly lose whatever gains I've made (if you do happen to see my ad out in the wild, please don't click on it)."

California law, which, according to the AdWords Program Terms, applies to Anderson's transaction with Google, implies a covenant of good faith and fair dealing in all contracts between parties entered into in the State of California. Does Anderson's request violate this implied covenant?

Suppose Able and Baker enter into an arrangement whereby Baker agrees that, if he fails to sell the prior day's freshly-baked bread, Able can have these loaves at no charge and Able agrees that, to the extent that his bread needs on a particular day are not satisfied by Baker's freebies, he will buy bread exclusively from Baker at an above-market rate. So far, so good -- Baker has a reasonable expectation that his bargain will make him some dough -- but if Able proceeds to stand in front of Baker's shop asking potential customers not to buy any bread from Baker, so as to create a surplus of unsold loaves that day for his gratis consumption the next . . . well, we can suppose that Able will get a rise out of Baker, to say the yeast. The upshot of all this is that one implication of Able and Baker's bargain is that Able will not manipulate the details of the transaction to deny its benefits to Baker; in other words, it is not contemplated under the parties' agreement that Able will actively impede Baker's flow of customers -- he's expected to loaf.

Just as Baker accepts that a certain number of freebies will pass Able's way, Google accepts that advertisers like Anderson will get a certain number of free ad impressions -- those appearances of the ad which do not generate a click-though by a viewer. However, just as Able wasn't permitted to drive business away from Baker's shop to reap more freebies for himself, I think Anderson's on shaky legal ground driving prospective ad-clickers away from his ads and denying Google their reasonably-anticipated AdWords revenues from him.

So, if my guess is correct and Anderson's in breach of his implied covenant of good faith and fair dealing with Google, what's his liability? Since this is Google and not Microsoft with which he's dealing, it's unlikely that Anderson will be half-hung, drawn and quartered. The Program Terms disclaim "consequential, special, indirect, exemplary, punitive and other damages" and provide that Anderson's probable liability would be measured by Google's lost per-click values. As Anderson cheerfully admits, his ad "sucks"; Google's losses due to his passing interference with his audience's natural ad-clicking tendencies are almost certainly negligible. A measure of damages more to Google's liking might be that suggested in a comment to Anderson's post: "Chris, how much will you pay us not to click on your ad?"

Most likely, Google will not notice Anderson's transgression (although titling his post "Cheating Google 101" was a good way to increase his chances of getting some attention from Mountain View). If noticed, a law firm nasty gram and a cancelled agreement would probably be the extent of his legal woes. Still, considering that this is a transaction where the "actual benefit . . . is probably close to zero", it wouldn't take much legal woe to create an actual detriment somewhere south of zero.

UPDATE: Chris Anderson writes, "Read the whole post . . . . I think he's joking."

Wrestling with the Difficult Legal Issues of the Day

When Chief Justice John Roberts remarked during his recent confirmation hearings that "judges are like umpires", most of us thought his comment was just a simile. A few litigious souls in New York, however, thought he was speaking literally and asked a state court to reverse a call made by a high school wrestling referee:

On March 5, Frank C. Rodriguez and Paul Florio were competing for the state title in the 135-pound division. At the end of the match, Rodriguez, then in 12th grade, was ahead by a score of 7-6. In celebration, he threw his headgear into the air before the official handshake signaled the end of the match.

After declaring Rodriguez the champion and having the combatants shake hands, the referee learned from an assistant referee that the headgear had been thrown and that the athlete had to be punished for unsportsmanlike conduct. The referee assessed Rodriguez a two-point penalty and declared Florio the victor.

Rodriguez appealed to the protest committee to no avail, so he took his gripe to court in the form of an Article 78 petition.

In this instance, the court declined to get involved; its decision, of course, is not binding on other courts.

Frankly, I think this is an area ripe for litigation, especially in the lucrative worlds of professional and intercollegiate sports. By allowing the use of replay footage to overturn referees' and umpires' decisions, several leagues have all but invited such litigation -- never show weakness by admitting that you're sometimes wrong! The HowStuffWorks website notes in its article on the use of the instant replay in the National Football League that "Officials are not always 100 percent correct, but their well-trained eyes allow them to be correct the majority of the time." Not good enough! It'll be zebra season for the plaintiff's bar!

In a few weeks, dozens of websites will chime in with their Super Bowl predictions, but I can't wait that long. Infamy or Praise's Super Bowl XL prediction: Seattle Seahawks 10, Indianapolis Colts 7 when the game is halted by litigation in the second quarter.

Safety in Numbers?

Cryptography and security guru Bruce Schneier reports that there's a measure of security in mass insecurity:

A new study suggests consumers whose credit cards are lost or stolen or whose personal information is accidentally compromised face little risk of becoming victims of identity theft.

The analysis, released on Wednesday, also found that even in the most dangerous data breaches--where thieves access social security numbers and other sensitive information on consumers they have deliberately targeted--only about 1 in 1,000 victims had their identities stolen.

The reason is that thieves are stealing far more identities than they need. Two years ago, if someone asked me about protecting against identity theft, I would tell them to shred their trash and be careful giving information over the Internet. Today, that advice is obsolete. Criminals are not stealing identity information in ones and twos; they're stealing identity information in blocks of hundreds of thousands and even millions.

If a criminal ring wants a dozen identities for some fraud scam, and they steal a database with 500,000 identities, then -- as a percentage -- almost none of those identities will ever be the victims of fraud.

Well, I feel better -- what about you?

When phenomena are exceedingly rare -- whether natural phenomena, such as lightning strikes, or man-made ones, such as terrorist attacks -- an odds-based argument can be valuable in tempering a natural tendency to panic. However, where the phenomenon in question is prevalent, this kind of analysis is essentially uninformative; the underlying message is not "it probably won't happen to you" but is instead "it will probably happen to you, but probably not today".

I for one cannot believe that the modern electronic economy is sustainable in the longer term unless the overall prevalence of fraud is minimized. Think of a bricks-and-mortar store where thieves wander about freely, stealing merchandise and robbing customers. If the proprietors and patrons of the shop are either unable or unwilling to prevent the thefts, the overall effect of the rampant thievery will be to depress the economy within the store.

This effect will occur whether the costs of the theft are initially or ultimately borne by the shopkeeper or his customers: A shopkeeper absorbing high theft losses will find it unprofitable to continue in business; if the proprietor passes along his losses to his customers, those customers will spend less overall; if customers develop an expectation that they will be robbed in the shop -- perhaps not this visit, but eventually -- they will either avoid coming at all or will minimize their potential losses by risking less.

The cumulative effect of prevalent thievery goes well beyond the losses directly attributable to the individual criminal acts; once consumer confidence is grievously shaken, the economy will fail.

You Bet Your Life

Benjamin Franklin famously quipped that "In this world nothing can be said to be certain, except death and taxes." What isn't certain is what people will do to adapt. In that vein, here's what passes for life insurance in Britain:

A 91-year-old British man who staked a 500-pound bet that he would be dead by the end of the first week in December lost his stake by staying alive, a bookmaker said Saturday.

Arthur King-Robinson said he put the bet on at odds of 6/1 at the start of the year because his wife would have faced an inheritance tax bill of 3000 pounds had he died in the intervening period.

. . . .

"I lost my 500 pounds -- but it gave me peace of mind," he said.

Baby, You Can Drive My Blog

E.L. Eversman hosts the thirty-sixth issue of Blawg Review at the AutoMuse blog. It looks like it's firing on all cylinders, as Instapundit comments on his hybrid Toyota Highlander, Professor Bainbridge goes shopping for a BMW M3, and others tackle the key legal issues of the past week. Next week's edition will be hosted by The WiredGC. Be a part of it -- review the Submission Guidelines and offer up the best legal blogging you see over the coming week; the deadline for next Monday's issue is this coming Saturday evening.

Wuzzemployed

In the most auspicious professional debut since Maurice Clarett's, WuzzaDem is now a professional blogger. By linking to his debut post, I believe I have now become his new Chief Marketing Officer.

TGIS: Thank God It's Schadenfreude! (43)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Tuesday, December 6; link good at time of posting):

Downtown Harare was hit by widespread outages minutes before state-run radio and television were scheduled to broadcast Mugabe's speech live from Parliament. The television station ran cartoons until power was restored about half an hour into the traditionally hour-long speech.

Mugabe promised to reinvigorate a program aimed at identifying new energy sources, including extracting oil from coal deposits and the biological production of fuels. Zimbabwe imports more than 30 percent of its electricity from neighboring countries.

Power and water outages have become routine in Zimbabwe, which is caught in its worst economic crisis since independence from Britain in 1980.

[Previous TGIS]

Playing "The Price Is Right" in Korea, Afghanistan, and Iraq

Dave Price, writing at the Dean's World blog, asked an uncomfortable but worthwhile question -- "Is A Free South Korea Worth 53,000 Dead Americans?"

I have a particular soft spot for South Korea and the Korean people, having lived there for a time during my adolescent years; even without that personal connection, however, I would recognize the Koreans' economic, political, and social achievements during the half-century since the cessation of Korean War hostilities as nothing short of incredible.

I've read little about the War and don't know whether the United States' participation in the conflict was just to prevent a "domino" nation falling to communist aggression or whether we had higher aspirations for Korea. If the former, the democratic and capitalist achievements of the Koreans are gravy; if the latter, I'd suspect that the Koreans have exceeded anyone's wildest hopes for them. Either way, things have worked out well, especially when you judge South Korea against its neighbor to the north.

The significance of the "was it worth it" question is, of course, the impact of its answer on the current debate about the wars in Afghanistan and Iraq. Price wrote:

Given that those opposing the war believe the much smaller price paid so far in Iraq is already too high, it's reasonable to assume they certainly don't believe Iraqi freedom and democracy is worth 53,000 American casualties and 3 million lives overall. So, assuming they don't think Iraqis somehow deserve freedom less than Koreans, do they think (all else being equal) we should have allowed S Korea to fall to the North, and saved the vast majority of those lives lost in the war to keep the South free?

I think two conclusions can be drawn from this exercise: First, fighting for your own nation's freedom requires no deep thought or justification -- there is no price too high to pay -- whereas fighting for another nation's or people's freedom requires some degree of justification and cost-benefit analysis. Second, staggering historical costs are easier to stomach than modest current ones; only the objectivity which elapsed time can allow us will definitively establish whether the benefits yielded justified the costs incurred.

In large measure, the results of this balancing will be determined by the freed Afghani and Iraqi peoples. Will they be as productive with their freedom as the Koreans have been? There's considerable reason to be optimistic that they will be. Speaking this past Monday, Defense Secretary Donald Rumsfeld highlighted some of these developments in Iraq and contrasted the Iraqis' optimism with the pessimistic, limited perspective of the American media:

[T]he Iraqi people see things somewhat differently [than the mainstream media]: They can compare as it is Iraq today, to what it was three years ago--a brutal dictatorship where the secret police would murder or mutilate a family member sometimes in front of their children, and where hundreds of thousands disappeared into Saddam's mass graves. From that perspective, Iraq today is on a vastly different, and a greatly improved path.

. . . .

Consider this: You couldn't tell the full story of Iwo Jima simply by listing the nearly 26,000 American casualties over about 40 days; or explain the importance of Grant's push to Virginia just by noting the savagery of the battles. So too, in Iraq, it is appropriate to note not only how many Americans have been killed--and may God bless them and their families--but what they died for--or more accurately, what they lived for.

So I suggest to editors and reporters--whose good intentions I take for granted--to do some soul searching. To ask: how will history judge--if it does--the reporting decades from now when Iraq's path is settled?

The results of an ABC News poll, released to the public yesterday, indicates similar resolve and optimism amongst Afghans:

Four years after the fall of the Taliban, Afghans express both vast support for the changes that have shaken their country and remarkable optimism for the future, despite the deep challenges they face in economic opportunity, security and basic services alike.

An ABC News poll in Afghanistan -- the first national survey there sponsored by a news organization -- underscores those challenges in a unique portrait of the lives of ordinary Afghans. Poverty is deep, medical care and other basic services lacking, and infrastructure minimal. Nearly six in 10 have no electricity in their homes, and just 3 percent have it around the clock. Seven in 10 Afghan adults have no more than an elementary education; half have no schooling whatsoever. Half have household incomes under $500 a year.

Yet despite these and other deprivations, 77 percent of Afghans say their country is headed in the right direction -- compared with 30 percent in the vastly better-off United States. Ninety-one percent prefer the current Afghan government to the Taliban regime, and 87 percent call the U.S.-led overthrow of the Taliban good for their country. Osama bin Laden, for his part, is as unpopular as the Taliban; nine in 10 view him unfavorably.

Within relatively short periods of time after formal military actions ceased in each nation, periods marked in each area by frequent bloodshed and material privations, both Afghans and Iraqis have expressed appreciation for the freedoms they had been offered, determination to build productive societies, and optimism that they would succeed in the longer-term. History will confirm for the skeptics amongst us that the wars in Afghanistan and Iraq were not another Vietnam -- these were another Korea

Just for the Hell of It

Thank you to the following sites and individuals who abandoned all hope and publicized Blawg Review #35 this week (presented in alphabetical order):

• Sheryl Schelin of The Airport Lawyer;
• Denise Howell of the Bag and Baggage blog;
• The Ever-Mysterious and Inscrutable Editor of Blawg Review;
• Pejman Yousefzadeh of A Chequer-Board of Nights and Days;
• Monica Bay of The Common Scold;
• Robert Williamson of the Construction Owners & Builders Law Blog;
  
• Mike Cernovich of the Crime & Federalism blog;
• Connie Crosby;
• Kevin A. Thompson of the CyberLaw Central blog;
• Evan Schaeffer of Evan Schaeffer's Legal Underground;
• David Giacalone of the f/k/a . . . . blog;
• Howard Bashman of the How Appealing blog;
• Lisa Stone of Inside Opinions: Legal Blogs;
• Professor Glenn Reynolds of the InstaPundit blog;
• The Kierkegaard Lives blog;
• Ron Coleman of the Likelihood of Confusion blog;
• Carolyn Elefant of the My Shingle blog;
• Sean Sirrine of the Objective Justice blog;
• Diane Levin of the Online Guide to Meditation blog;
• Stephen Albainy-Jenei of the Patent Baristas blog;
• Douglas Sorocco of the PHOSITA blog;
• Walter Olson of the Point of Law blog;
• Professor Stephen Bainbridge of the ProfessorBainbridge.com blog;
• The RiskProf blog; and
• Kevin J. Heller of the Tech Law Advisor blog.

To paraphrase Sally Field, "You link me . . . you really link me!"

Thank you again to all of the Blawg Review editors for their invaluable assistance in preparing and refining this week's edition of the carnival.

Finally, to all who contributed to, commented on, and read Blawg Review #35 this week, thanks for going through Hell with me.

Pearl Harbor Day Trivia

In the United States, today is Pearl Harbor Day, the 64th anniversary of the surprise attack by the Empire of Japan which precipitated America's entry into the Second World War. December 7, 1941 was immortalized the next day in a speech by President Franklin D. Roosevelt as "a date which will live in infamy".

What is not well-known, however, is that this memorable phrase was not the President's initial choice. In an earlier draft of his speech, he referred to the day as "our generation's 9/11", but this did not play well with confused test audiences. The phrase was changed and the rest, as they say, is history.

It's true . . . I read it in Wikipedia.

[Update]
[Second Update]

Model Finance in America

Well, at least our Brazilian friend had the true goods and high aspirations for his prospective ill-gotten gains. This pathetic woman 1) mistook a block of white cheese for cocaine; 2) solicited an undercover policeman to kill the owners of the cheese; and 3) confessed to police that the entire multiple murder and cheese-napping scheme was concocted to raise money to pay her modeling agency.

At least she managed to be caught on tape directing the undercover cop to kill any underage bystanders old enough to testify; her concern for pre-verbal infants should entice the court to go easy on her at sentencing.

Campaign Finance in Brazil

This report from Reuters makes all the McCain-Feingold blather over "soft money" seem somewhat quaint:

A would-be Brazilian mayor was in custody on Tuesday for international drug trafficking on charges of importing 500 kilograms (1,100 lb) of cocaine on a plane that took off from Colombia, federal police in Brasilia said.

Misilvan Chavier dos Santos denied police claims that he planned to use money from drug sales to finance a pending bid for political office.

. . . .

Chavier dos Santos was expelled from the centrist Social Democracy Party last week after he used a motorcycle to flee from another plane loaded with cocaine just as federal police arrived at a clandestine airstrip.

In that case, he abruptly landed his plane, which had taken off in the Amazon, after realizing he was being followed by a Brazilian Air Force jet.

Perhaps domestic concerns about the undue influence big contributors could have on elected candidates would be alleviated if we embraced this kind of can-do, entrepreneurial spirit that this self-financing candidate shows. Who needs a PAC when you have crack?

RELATED: Model Finance in America

Still Bogged Down

Professor Orin Kerr of The Volokh Conspiracy addresses a topic which was highlighted in yesterday's Blawg Review #35 -- Circuit Judge Boggs' concurring opinion discussing probable cause standards. Professor Kerr writes:

I think Judge Boggs is wrong, and that his hypothetical is based on a simple analytical error. Judge Boggs assumes that the "place to be searched" for the purposes of a warrant to search for evidence in a car must be an individual vehicle. In his hypothetical, the drug dealer has three cars in a garage, and there is evidence in only one of the three cars. Boggs concludes that probable cause must be a low probability because the chances that the evidence is in any one car are only 1 in 3, and yet the warrant in that case obviously would be issued.

The problem with Boggs' hypothetical is that the "place to be searched" in this hypothetical wouldn't be an individual car, or even the garage itself; the "place to be searched" normally would be the entire property that contained the garage and all of the cars inside it. The chances that evidence would be found in the place to be searched are 100%, not 1 in 3, as we know that the evidence will be found in one of the cars.

Blawg Review #35

Before we begin, I'd like to thank the editors for allowing me to host the carnival on December 5, the day which is considered by most right-thinking people the foremost holiday within a month of holidays; I refer of course to the annual Day of the Ninja.

Can't stand to wear that wretched Christmas sweater again this year? You can make your own ninja mask from a black t-shirt! Are you still suffering from a repetitive stress injury from spinning the dreidel last Chanukah? You can make your own paper throwing star (Shuriken) in 22 easy steps! Do you enjoy the Festivus Airing of Grievances but hate having to speak to your relatives? If you follow the way of the Ninja, you can work out your grievances silently.

But I digress . . . .


Abandon all hope, ye who enter the thirty-fifth Blawg Review!

As the Editor's preview post noted, this blog's title is derived from Canto III of Dante's Inferno, wherein Dante and the poet Virgil, his guide, pass through a kind of suburb of Hell populated by souls of people who were utterly inconsequential in life -- people who earned neither infamy or praise -- and who are thus undeserving of even a place in Hell:

And I, who had my head with horror bound,
Said: "Master, what is this which now I hear?
What folk is this, which seems by pain so vanquished?"

And he to me: "This miserable mode
Maintain the melancholy souls of those
Who lived withouten infamy or praise.

Dante quickly comes to realize that those "melancholy souls" are disdained by both the forces of good and of evil -- they are "[h]ateful to God and to his enemies". Even Virgil cannot bear to remain for long amongst them; he says:

"I will tell thee very briefly.

These have no longer any hope of death;
And this blind life of theirs is so debased,
They envious are of every other fate.

No fame of them the world permits to be;
Misericord and Justice both disdain them.
Let us not speak of them, but look, and pass."

Much of the imagery and poetry in Inferno and in the other two canticles of The Divine Comedy, Purgatorio and Paradiso, is memorable, but nothing has remained with me more vividly than that concept of a hell unworthy of Hell filled with those who, as Dante observes, "made through cowardice the great refusal". Few things can be more fundamental motivations than the desire to be of consequence; to be one of the inconsequential souls -- those whom Dante noted in passing as "[t]hese miscreants, who were never alive" -- is in many ways more damning than to exist in any of the nine circles of Hell through which Dante and Virgil subsequently journey.

In addition to the fact that it provided the name of your host's blog, Dante's masterwork is an appropriate basis for this week's Blawg Review for another reason (and no, I wasn't going to say that all lawyers belong in Hell). Prior to Dante's work in the early years of the 14th century, the divisions in poetry between those with "high" topics and language and those with "low" topics and language was quite strict. Wikipedia provides a good characterization of Dante's impact on this status quo:

Low poems had happy endings and were of everyday or vulgar subjects, while High poems were for more serious matters. Dante was one of the first in the Middle Ages to write of a serious subject, the Redemption of man, in the low and vulgar language of Italian, not Latin as one might expect for such a serious topic.

I cannot think of a better analogue to legal blogging! What are legal blogging generally and Blawg Review specifically if not the discussion of serious subjects in more accessible forums and in more accessible language?

And lo! towards us coming in a boat
An old man, hoary with the hair of eld,
Crying: "Woe unto you, ye souls depraved!

Hope nevermore to look upon the heavens;
I come to lead you to the other shore,
To the eternal shades in heat and frost.

And so we begin . . . .


Circle I: Limbo

The first circle of Hell comprises the souls of people who did not commit evil acts but who were not baptised and therefore cannot enter Heaven (several translators refer to these as the "Virtuous Pagans", which I've always thought would be an excellent name for a goth rock band); Virgil notes that he is counted amongst these persons, as are other ancients. Numerous virtuous bloggers find themselves in the Inferno this week:

Ross Runkel, Professor Emeritus of Willamette University College of Law, founder of LawMemo, and your host's Labor Law professor during his Willamette days, announces that his Ross' Employment Law Blog will offer a series of approximately sixty short essays concerning various employment law topics; the series, titled "Employment Law 101", will be published Mondays, Wednesdays, and Fridays. Professor Runkel will discuss "hot topics like sexual harassment and genetic testing, plus some boring (yet crucial) topics like statutes of limitations and remedies."

Our mothers always told us to remember to say the "magic word" when we ask for something; in a series of three posts, Sheryl Schelin of The Airport Lawyer reminds us of that and provides some additional sage advice for anyone seeking information from local government agencies under state Freedom of Information Acts (FOIAs). It may be worth your while; she writes, "I know there's a faddish tendency to mistrust "the government" - mistrust the government all you want, but don't lose sight of the fact that what you're really mistrusting is individual workers, and call me Anne Frank but I truly believe most of us are trying to do the right thing."

Bruce MacEwen of the Adam Smith, Esq. blog passes along some words of wisdom from author Michael Lewis (Liar's Poker, The New New Thing, Moneyball) and offers some words of hope of his own concerning "what makes it all worthwhile". Lewis opines that, "As for happiness, it comes from thinking your job has a purpose. The scarcest resource in the world is purpose. People who have purpose, other than money or social position, tend to be much happier." Adam Smith of the Bruce MacEwen, Esq. blog disagrees and argues that money is everything.

Appellate Law and Practice gives us its "Top Ten Worthless Pieces of Appellate Advice", including "Make your point clearly" and "Don't misstate the law"; fortunately for myself, I work in an in-house legal department, and so these are not requirements for me.

Jim Calloway's Law Practice Tips Blog highlights a website devoted to the somewhat arcane topic of conflicts of interests rules. As Calloway points out, "If you've ever done legal research on ethical conflicts, then you know that once you get past the easy and obvious rules, the law becomes complex rather quickly." His recommended site is Freivogel on Conflicts.

"Law Librarian/Info Diva" Connie Crosby took one for the team and attended the recent KM World and Intranets 2005 seminars so you didn't have to. Back at the end of October, Crosby warned us that she would be away at the conference but that she was "anticipating some good blogging from there"; she didn't disappoint -- what a virtuous pagan!

Professor Lawrence Lessig provides an update (with helpful diagrams!) on efforts within Creative Commons to harmonize the legal effects of various flavors of free public licenses (FPLs) and "to facilitate interoperability among sufficiently compatible license types". He explains that "Even if all the creative work you want to remix is licensed under a copyleft license, because those licenses are different licenses, you can't take creative work from one, and remix it in another . . . . We're going to fix this. Or at least, we're going to try." Andrew Raff of IPTAblog discusses Lessig's post and other FPL-related developments.

Neil Squillante of TechnoLawyer Blog announces that BlawgWorld 2006: Capital of Big Ideas is now available free of charge to TechnoLawyer members (membership is also free of charge). The eBook comprises "best of" essays "designed to take you on a journey through 51 of the most influential legal blogs". As this blog is not included amongst those 51, the book seems to have some credibility. Nonetheless, the Editor of Blawg Review is skeptical in his/her/its review: "The concept of putting a previously published blog post, hand-picked by a writer selected by a publisher, on a pdf and making it available behind password registration on the publisher's website, seems overly self-interested." Kevin O'Keefe tends to agree: "It would be a heck of a lot better to put the posts in a blog, if anywhere."

Finally, in his Illinois Trial Practice Weblog, Evan Schaeffer points us to a worthy effort at the Washington and Lee School of Law "to make law journals more accessible online".



Circle II: The Wanton

The Second Circle contains the souls of the lustful. In the National Review, columnist John Derbyshire recently wrote that it is a "very unfair truth that a woman's salad days are shorter than a man's -- really . . . only from about 15 to 20". "Federalist blogwench" Amber Taylor of the Prettier Than Napoleon blog discusses why Derbyshire's confession that he likes 'em young "skeeved me out".

For as long as I've been reading legal blogs, I've heard New Orleans attorney Ernest Svenson, of Ernie the Attorney fame, described in glowing terms, but never as "wanton". Instead, his post this week informing us that "People in New Orleans are tired of politicians" lands him in the Second Circle for another reason -- his recent weather-related experiences. In Canto V, Dante describes the eternal Katrina which torments the inhabitants of this circle of Hell:

The infernal hurricane that never rests
Hurtles the spirits onward in its rapine;
Whirling them round, and smiting, it molests them.

Svenson writes that, "I'm ready to cast my vote. I don't know who I'm voting for, but in most cases, I know who I'm voting against."



Circle III: The Gluttonous

Those who feast away their lives find themselves face-down in the mud and gnawed by Cerberus for all eternity. Micha Ghertner at Catallarchy reports that Thanksgiving, that most gluttonous of holidays, has prompted some to reconsider the questionable immigration status of those who landed at Plymouth Rock.

David Gulbransen of the Preaching to the Perverted blog caters to the gluttonous considering law school by boiling 1L down to a few bullet points. My own favorite is Torts: "Accidents happen, but someone's gonna have to pay for that." If only I'd had Torts explained as well to me a dozen years ago or so, I might be qualified to chase ambulances today.



Circle IV: The Avaricious and the Prodigal

There's just no satisfying some deities. If you have money and spend it too freely, you're condemned to the Fourth Circle; if you have money and don't spend it, you're headed for the Fourth Circle anyhow. The only solution is to have no money, so that you're only in hell until you die. And don't even think about muttering "I'm damned if I do and damned if I don't" or you'll find your mouth washed out with brimstone. An unsurprising number of posts this week concerned the almighty dollar:

Stephen Albainy-Jenei of the Patent Baristas blog reports that "the tide has turned" for Pfizer's patent efforts relating to its $10 Billion-per-year Lipitor statin (cholesterol) drug: "On Nov. 23, 2005, the Examiner issued a Notice of Intent to Issue Ex Parte Re-Examination Certificate. Included in the allowed claims are 21 of the original claims, 13 amended claims and 73 newly presented claims!"

Bruce MacEwen finds his soul divided this week between the First and Fourth Circles when he analyzes the results of the annual survey of AmLaw 200 managing partners. His verdict? "[W]hile the news is almost overwhelmingly good (at least if you're a partner in the AmLaw 200, and not a client of them), there's what may be a storm front on the distant horizon." One thumb up and one thumb down -- how lawyerly! It's par for the course here in this Circle, however, where the condemned push boulders in opposite directions for eternity. Anita Campbell of the Small Business Trends blog has our backs, though. She reassures us that small businesses still love us -- "A recent survey by the National Federation of Independent Businesses (NFIB) found that small business owners in the United States rely on their lawyers for help — and generally seem satisfied with the help they get." Rob Hyndman suspects that MacEwen's "storm front" may just blow over the heads of the smaller players, thanks to more nimble technology. Says Hyndman, "I simply can’t imagine what it would be like to be as tech-disabled as large enterprises now are - biglaw or big-anything else, really."

The Dark Goddess of Replevin is pleased to report that her blog persona's credit limit has been bumped-up by $4,000. It is, as she puts it, "Not bad for an imaginary playmate." Professor Rebecca Tushnet of 43(b)log points out that life hasn't been so sweet for those without the strong credit rating of an imaginary persona. New York Attorney General Eliot Spitzer has secured an injunction against Applied Card Systems, Inc., a company which, it is alleged by the State, deceived consumers about how much credit would be available to them under the terms of their card agreements, trapped them in "a downward spiral of interest, late fees and over-limit penalties", and enforced their oppressive terms in a harassing and abusive manner. Professor Tushnet analyzes a preemption issue raised by the case.

The Whisper Brand Strategy blog takes lawyers to task, telling them that they are "practicing branding negligence". Whisper argues that "To be successful, law firm branding, as is true for any professional services firm, must evolve beyond a mindset that thinks short and snappy by itself is branding." In all fairness, however, it seems that there's only so much a firm can do to distinguish itself in the marketplace. Will Hornsby examines the Supreme Court of Florida's recent decision to sanction lawyers for using images of pit bulls in their advertising and wonders, "Are Cute Puppies Okay?" Hornsby's post also pulls together the uniformly negative reaction to the case from across the blawgosphere and from "civilian" editorialists.

Norm Pattis of the Crime & Federalism blog takes the profession (or at least our brethren in New York) to task for their miserly ways. A modest pro bono commitment was requested from larger Manhattan firms, but "[o]nly 30 of the 55 firms approached signed on, meaning that more than two dozen firms would rather grab cash than do public service". Uh, I gave at the office? On a completely unrelated note, today is International Volunteer Day.



Circle V: The Irascible and the Sullen

The Appelate Law & Practice blog points out some lazy jurisprudence in the Sixth Circuit. Judge Boggs first criticizes a probable cause standard which relies upon an arbitrary percentage chance of success and then establishes a new standard which does essentially the same thing. The lazy and sullen are condemned to the Fifth Circle, which means that the Judge will spend eternity (or at least this week's Blawg Review) surrounded by those who died as teenagers.

How lazy is the Supreme Court? Well, it depends who you ask. Justin Mazzone, guest blogging at the Concurring Opinions blog, notes that "Last term, the Supreme Court issued opinions in just 74 cases. That’s pretty pathetic." He wants to know "Why does the Supreme Court accomplish so little?" He has a few words of advice for the new Chief Justice: "double the number of cases the Court decides (it decided 123 the term Roberts clerked for Rehnquist), halve the length of opinions, make unanimity the goal, and discourage separate concurrences." Professor Orin Kerr of the Volokh Conspiracy blog comes to the Court's defense -- sort of -- and doesn't agree that more is better: "I think it's probably wrong to think that more Supreme Court decisions means more settled law. If anything, I think the opposite is probably true: lots of new Supreme Court cases in a field probably tends to unsettle the law rather than settle it." So, how lazy is the Supreme Court? It's so lazy that even its marble façade is falling down on the job! Thank you, I'll be here all week! Remember to tip your editors!

Along with the lazy and sullen, this circle contains those who are combative and intemperate -- pretty much every litigator, it would seem. If this seems like a strange mixture, perhaps it's just divine wisdom -- it would be difficult to find two groups could annoy one another more consistently when thrown together. Nevertheless, they are somewhat separated; the wrathful fight one another whilst partially submerged in the River Styx, whereas the slothful are completely underwater, like stock options.

There was a good deal of discussion this week concerning Seventh Circuit Judge Posner's rejection of attorney fees claimed by Budget Rent a Car in its ongoing litigation with Consolidated Equity: Ted Frank at PointofLaw.com Forum led the way by criticizing the Seventh Circuit, which rejected Budget's claimed fees as "exorbitant": "The opinion exhibits a fundamental problem with much of the judiciary: a complete lack of understanding of how much litigation actually costs clients." Frank's follow-on post pulls together several other blogged opinions on the decision, including one by Will Baude, guest blogging at PrawfsBlawg. The dispute centers around the amount of time spent by junior associates to prepare routine filings; Baude suggests that "The reason to give this work to a younger lawyer who will take longer is that this is how he or she gets experience and becomes a better lawyer. But Posner, I think, wonders why Budget's lawyers should be doing this on somebody else's dime."

J. Craig Williams of the May It Please The Court blog is just feeling generally ornery about rumors that class action suits will be filed against Coca-Cola concerning its high-calorie sodas and their alleged contribution to childhood obesity. Williams concludes that "Maybe we need long physical education classes and more sports in school, and less time in the courtroom."



Circle VI: The Heretical

The chief type of heresy is questioning the established church . . . questioning the established church and seeking to subvert the status quo with new technology. The two types of heresy are questioning the established church and seeking to subvert the status quo with new technology. And ruthless efficiency. Amongst the types of heresy are such elements as . . . oh, nevermind; I'll come in again.

David Giacalone of the f/k/a . . . . blog is questioning the established church this week. Giacalone notes the Vatican's recent expansion of its ban on homosexuals in the priesthood and wonders where this leaves Catholic Legal Theory: "I submit that the Vatican's Instruction on gay priests tells us a lot about how the Church views 'human flourishing,' 'authentic freedom,' and 'the nature of the human person.' And, no matter how it is viewed within the Church's hierarchy and membership, what it says should be ignored by American law schools, its legal scholars and broader legal community." Welcome to the Sixth Circle, David!

The WiredGC discusses Web 2.0 technologies and their potential to disrupt the status quo for handling and providing legal information; it also provides a succinct description of Web 2.0 for those of you who just said, "Huh?" The WiredGC posits that "This could have all sorts of ramifications as to what law firms are really selling (information or insight), how they are organized (partner/associate) and how they are valued (finders over minders over grinders). It may also mean that a corporate legal department lets more work be done by clients themselves."



Circle VII: The Violent

Dante viewed most forms of violence as essentially equivalent to one another; in the Seventh Circle of Inferno are the souls of a variety of "violent" people sent here without much regard to the objects of their violence -- be these other people, themselves, God, nature, or art.

On Friday, Holly Manges Jones of the University of Pittsburgh School of Law's Jurist reported the execution of the 1,000th person since capital punishment was reinstated in 1976. Kenneth Lee Boyd was put to death by the State of North Carolina for the killings of his wife and father-in-law; Boyd did not deny his crimes. Also on Friday, The Legal Reader blog reported another execution half a world away in Singapore. Nguyen Tuong Van, an Australian, had been convicted of drug trafficking; although his guilt does not appear to have been questioned by those in his homeland, his looming execution date had raised diplomatic tensions between Australia and Singapore.

Not all capital cases are as clear-cut, however, as my fellow viewers of the Prison Break television series know all too well. (Free Lincoln Burrows! Despite his wooden acting!) Both Legal Blog Watch and Mike Cernovich of the Crime & Federalism blog noted a Slate article by Professor Dan Markel, of PrawfsBlawg fame, examining the case of Ruben Cantu:

According to the [Houston] Chronicle, Cantu should never even have been convicted—a fact on which the prosecutor, defense attorney, sole eyewitness, and the head juror involved with the case all agree. They now attribute Cantu's fate to two causes: first, the extraordinary police pressure exerted on immigrant Juan Moreno—the crime's sole surviving witness—to finger Cantu in testimony; and second, the failure of Cantu's co-defendant, David Garza, to speak up earlier to clear Cantu's name. (Garza and Moreno have since cleared Cantu, saying someone else actually committed the crime.)

Scott Hansen of the Grits for Breakfast blog argues that probable injustice in the Cantu case might have been averted had corroboration for the eyewitness testimony been required. Hansen points out that several biblical passages, in the Books of Numbers, Leviticus, Matthew, 2 Corinthians, and 1 Timothy, establish a Christian tradition requiring such corroboration in criminal matters generally and for capital crimes specifically; at one time, American criminal statutes were modified to conform to these biblical standards.

The blawgosphere this week also offered examples of violence to the arts: Kevin A. Thompson of the Cyberlaw Central blog notes a case of RSS hijacking and concludes that "alleging copyright infringement should work, at least for purposes of a cease and desist letter". Thompson points us to a post from Colette Vogele, who explains the mechanics of RSS hijacking. In a comment to Thompson's post, Rob Hyndman informs us that "The first known case of podcast theft has occurred".

Opinionista seems to be doing some violence to herself in her quest to put in enough "Face Time" to satisfy her law firm overlords: "I've made a concentrated effort to remove myself from the game, but still I can't help feeling like I've landed on Park Place and gone broke every time I pass a partner at 7 p.m. on my way to the elevator. In the battle between logical reason and blind herd-adherence, it's clear which is winning." In response, The Listless Lawyer tells her that "We make our own prisons" and advises her that "life really is better out here in the Midwest".

Finally, when it comes to the violence we do to ourselves, The Greatest American Lawyer worries about something else -- "the Destructive Six-Minute Increment": "I have said this before and I will say it again hourly billing is just not healthy. It is destructive to the lawyers who are subjected to it."



Circle VIII: The Fraudulent and the Malicious

The Eighth Circle is subdivided into a number of "bolgias" or ditches, each specific to a particular type of fraudulent or malicious sinner.

The first of these contains the seducers and panders, those smooth operators who cajole others into doing their bidding, usually against those others' own best interests. Professor Gordon Smith of the Conglomerate blog points out that, for many entrepreneurs, franchising is a nightmare: "The perception that a franchised business is a 'sure thing' is enhanced by the disclosure that accompanies franchise sales . . . . The law reporters bear testimony of failed dreams. Franchise disputes are common, despite elaborate contracts." In the First Bolgia, Dante encountered Jason. If Jason were around today, he probably wouldn't bother with the voyage to Colchis; he would have just franchised Argos and rolled the proceeds into an offshore Golden Fleece holding company.

Dennis Kennedy, in a reposted article, offers us seven quick negotiating tips from another smooth talker, Columbo. There must have been a method to his madness for him to have successfully solved so many complex cases in just an hour or two, and now Kennedy has discovered it for our benefit.

The Fifth Bolgia contains corrupt politicians. The White Collar Crime Prof Blog discusses the ramifications of prosecuting campaign contributions as bribes and concludes that prosecutors going this route would have a tough row to hoe: "If prosecutors decide to pursue charges against members of Congress, the standard for proving a bribe will be high if the payments are identified as campaign contributions."

Professor Bainbridge sheds a little light on legal academia's "dirty little secret" -- that, despite their lip service to "diversity", elite law schools have done a poor job of diversifying the points-of-view within their ranks. Two articles to which the Professor links suggest that this may be slowly changing, but for now, those elite schools find themselves deposited into the Sixth Bolgia along with the other hypocrites.

Academic hiring also drew the attention of Jason Mazzone, another divided soul this week, splits his time between the Fifth Circle and the Eighth. He points to another aspect of academic hiring and reports that "Nepotism is at work in the legal academy": "Do good work, we tell ourselves and we tell our students, and you will go far. There are special reasons to question nepotism in the legal academy."

As we tiptoe through the Eighth Circle of Hell this week, our last stop is the Eighth Bolgia, final destination for fraudulent advisors and evil counsellors. Our first example this week is provided by Tom McKenna at the CrimLaw blog. McKenna passes along the story of a Tennessee attorney who found himself on the wrong end of a perjury prosecution after advising his client to lie under oath, and putting that advice in writing in an e-mail. The attorney wrote, in part, that "I've never seen them charge anyone with perjury, and everybody lies in criminal cases". McKenna's assessment? "Ouch." As another eminent Tennesseean might say, "Indeed."

Last but certainly not least in this circle of Hell is a man who is perhaps the archetype of the "evil counsellor" -- Anonymous Lawyer. This week alone, Anonymous has solicited suggestions from his readers on how to best torture his associates, he's run over a cat ("People should control their pets better."), and he's lamented that none of his associates failed this past summer's bar exam.



Circle IX: The Traitorous

In the Ninth Circle are the souls of traitors -- to their families, their countries, their friends, and their lords and benefactors. This week, Lyle Denniston of SCOTUSblog reported on the latest developments in the prosecution of terrorism suspect José Padilla, an alleged-for-now traitor to his country: "In a surprise order, responding to a Department motion last week that Padilla's lawyers had not opposed, the Circuit Court ordered new briefing from both sides on whether it should vacate its Sept. 9 ruling upholding Padilla's detention as an 'enemy combatant.' If the Court were to do that, it would remove a major precedent in favor of presidential power during the war on terrorism."

Inferno concludes:

The Guide and I into that hidden road
Now entered, to return to the bright world;
And without care of having any rest

We mounted up, he first and I the second,
Till I beheld through a round aperture
Some of the beauteous things that Heaven doth bear;

Thence we came forth to rebehold the stars.

Thus ends the thirty-fifth edition of Blawg Review.

For those of you who wondered, the engravings which accompanied each of the sections of this week's issue are by Gustave Doré and are from the illustrated edition of The Divine Comedy published in the 19th Century. A larger version of each image is available by clicking on the image. The complete illustrated edition (translated by Henry Francis Cary) and Henry Wadsworth Longfellow's Translation (not illustrated), from which I quoted, are both available online through Project Gutenberg.

In closing, I'd like to offer my gratitude to the editors, my own Virgils this week: Kevin J. Heller of Tech Law Advisor, Evan Schaeffer of Evan Schaeffer's Legal Underground, Mike Cernovich of Crime & Federalism, and the anonymous Editor 'n' Chef of, well, everywhere and nowhere. Next week, E.L. Eversman will lead us toward Paradiso when the AutoMuse blog hosts the thirty-sixth issue of Blawg Review.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

[Update]