The Great Change: Turning Cathy into a Lawyer

The other night I went to a social for graduate students where I met a med student. We compared our respective curricula, and as a classmate and I were telling him about our law courses, our attentions turned to our torts class. We tried to impress him by telling him how some of the cases we read are frequently graphic in their descriptions of various bodily injuries.

The first case we read in the class was Vosburg v. Putney. This was a case from 1891. Apparently there were two boys in a classroom. The younger boy, about 11, reached his leg over and with his foot lightly touched the shin of the other boy, about 14. At first there was no reaction, possibily because the touch was so slight. Then the elder boy suddenly shouted out in pain. The next day he was sick, and over the next few days got sicker to the point of vomiting. A doctor came to lance the now swollen leg and release the pus and pieces of bone that had accumulated.

The reason many in our class, including me, found the case so revolting was not just because of the description of the symptoms, but because the court found the 11 year old liable for damages to 14 year old. We started marvelling to each other about how inadvertantly touching someone could make their arm fall off. Medically it seemed so far fetched, and the legally the case also seemed equally facetious.

The med student, as we were describing the symptoms, nodded knowingly. "Bone sepsis," he said. The case indicated that the boy had sustained an injury to the same location a few weeks earlier from a sledding accident. The med student surmised that as a result of the injury, bacteria had probably managed to find its way to the inside of the bone. Bone interiors don't have substantial immune systems, which makes sense since they are sealed and rarely exposed to anything, so the infection was able to grow and fester and essentially rot away the bone. When the younger boy tapped him, the med student thought, the fragile bone must have given way and allowed the festering interior to suddenly hit his system and put him in septic shock.

The med student was amazed that the boy didn't die, but he was even more flabbergasted that the 11 year old was held liable. It was just a matter of time before the bone gave way and the elder boy would have suffered the same injury. Surely that inevitability should have exonerated the 11 year old?

I think what we are supposed to take away from this case is that the definition of battery includes any unwanted touching. That maybe the leg would have collapsed anyway, either next week or the next day or the next minute, but that the 14 year old would have had that much more time to enjoy his body in an untraumatized state. Forcing him, against his will, to suffer the septic shock at that time took away his control over his own body, and that was the wrong that needed legal redress.

I imagine my understanding of these issues will improve as the semester goes on, but it's clear that I'm already hard at work transforming my world view to incorporate these concepts.* It has to change, because I can't learn the law if I'm trying to pretend it's something else. But I think it is worth remembering the righteous indignation I've felt upon discovering some of these legal realities. It does seem unreasonable for people to be exposed to liabilities for such innocuous, innocently-intended, and common acts. Maybe someday the law can change to something more reasonable, but only if enough people who'd know how to do it remember why they'd want to bother.

* When I was demonstrating for the med student the lightness of the kick, I turned to my classmate and asked explicitly if I had his consent to kick him (for demonstration purposes, of course) because consent is a defense for battery. And I wanted to make sure I was covered just in case his leg fell off.

What has become of me? I find myself reading 60+ page legal decisions for fun...

Yesterday the 9th Circuit Court of Appeals handed down a decision which would appear to delay the California recall election, ostensibly until March. The decision read as synposis of everything I've learned in the first few weeks of my civil procedure class, plus a few things that we'll cover eventually.

In the first few weeks of the semester our professor had us read cases like Goldberg v. Kelly and Mathews v. Eldridge to get a feel for how the courts work: what kinds of cases go to federal court? What legal claims get addressed? How do the courts balance various interests?

In the California election case the plaintiffs (the Southwest Voter Registration Education Project, the NAACP, et. al.) sued the Secretary of State of California for scheduling the recall election on October 7. The crux of their complaint stemmed from the fact that polling places in some of the most populous counties used antiquated and now discredited punchcard voting technology (the technology that introduced the word "chad" into everyone's vocabulary in 2000). This technology is so suspect that votes cast this way are several times more likely to not be counted at all or to be counted incorrectly. In fact, the Secretary of State has decertified the technology, disallowing its use in future elections. However, not forseeing the need for an October 7 election, the Secretary of State had established a March 2004 deadline for upgrading the voting technology. Some counties have finished upgrading, but some have not. This dichotomy, the court reasoned, would mean that the votes of certain counties would be subject to different counting methodology, which the U.S. Supreme Court in 2000's infamous Bush v. Gore determined violated citizens' right to equal protection (all votes should be counted by the same means lest some be given greater weight than others). The variances caused by some voters having to use the more unreliable technology could in effect potentially disenfranchise thousands of voters including, it noted, the sitting governor himself who lives in one of the counties with the suspect voting technology.

However, as we learned from Goldberg and Mathews, the mere existence of a violation of a legal right such as equal protection does not automatically require a direct remedy to reverse the situation. The court wouldn't simply order a new date for the election with no thought to the cost, the benefit, and any other compelling interests. In fact, the court's opinion included a substantial analysis on the relative merits of delaying the election. In doing so it noted that a typical reservation about delaying an election, in that it might jeopardize the workings of government or leave important seats vacant, didn't apply here because the governorship is currently occupied, and not for longer than would have been otherwise legally proscribed.

The court also made an important distinction about the balancing of the public interest by separating it from state interest. The lower court had presumed the public interest to be represented by the state's interest, in this case expressed by the Secretary of State's desire to follow explicitly California election law requiring the election to be held on October 7. However, the appeals court noted that it's the spirit of the election law, not necessarily the letter, that should be considered. To simply defer to the strict rules of election law in the face of such infringement on the rights of the people (the voters) would be to subjugate the public's interest to state interest, something that the 14th Amendment tries to prevent.

Posted 9/20, mostly written earlier.

54 F.R.D. 282.

Plaintiff sued Satan for violation of his civil rights under various United States statutes, including 42 U.S.C. § 1983, which we've been studying in civil procedure.

Plaintiff allaged that "Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and caused the plaintiff's downfall..." and that by doing so, Satan has deprived him of his civil rights.

The court denied his claim. In delivering his opinion Judge Weber questioned whether plaintiff had a cause of action upon which relief could be granted by the court. Indeed, in civil procedure we learned that 42 U.S.C. § 1983 allows a cause of action against a party acting in violation of one's constitutional rights under the auspices of a state or territory. It can be inferred from the court's opinion that plaintiff failed to prove how Satan was acting as an agent of a state.

In the opinion Judge Weber further wrote, "We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district."

And, "If such action were to be allowed we would also face the question of whether it may be maintained as a class action. It appears to meet the requirements of Fed.R. of Civ.P. 23 that the class is so numerous that joinder of all members is impractical... We cannot now determine if the representative party will fairly protect the interests of the class."

And finally, "We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshall for directions as to service of process."

How did I encounter this case, you ask? As part of our legal research and writing course we had a scavenger hunt of sorts to learn to look up cases in the library. We were given the cite above and told to go find the case and report back who the parties were.

All this goes to show that law school instructors are not without a sense of humor.

The recent topic in Torts class has been res ipsa loquitur, which literally means "the thing speaks for itself." The gist of this legal notion is that a harm's occurrence is itself evidence that some sort of negligent behavior must have also occurred to have allowed the harm to happen.

The reason to allow this type of claim in a tort action is because some plaintiffs might know there has been an injury but not also have sufficient evidence at the outset to submit to a court enough evidence to substantiate their claim of negligence when seeking redress for that injury. Such information might become available later in the trial, but the claim might get dismissed for lack of evidence before that time. So res ipsa loquitur allows the court to assume proof of negligence so that legitimate claims of tortious injuries will be able to proceed to trial.

The logic of this was more apparent in a case we read, Byrne v. Boadle. 159 Eng. Rep. 299 (Ex. 1863). The plaintiff was passing in front of the defendant's premises when a barrel of flour fell on him, causing injury. The plaintiff knew that the injury was caused by the barrel, but he didn't necessarily know the details of the specific negligent behavior of the defendant that presumably had transpired in order to permit this accident to have happened. The court reasoned that barrels do not fall on people without some negligence having occurred relating to their possession (e.g., faulty storage or transportation). So the court agreed that the plummeting of the barrel could constitute evidence of the negligence itself, lest the defendant be able to explain some other circumstances which caused its falling without there having been any negligence on his part.

Another case we read, however, applied res ipsa loquitur in a scope beyond the previous example. In Colmenares Vivas v. Sun Alliance Insurance Co. [807 F.2d 1102 (1st Cir. 1986)] the plaintiffs were injured when an escalator malfunctioned. The court allowed the evidence of the malfunction to be evidence of the negligence, but I am inclined to agree with the dissent where Judge Torruella wrote:

"...solely because the handrail stopped and [plaintiff] fell, without further evidence as to why or how the handrail malfunctioned, does not give rise to an inference of negligence by [defendant]...

"The malfunctioning of an escalator presents an even stronger argument against the raising of an inference of negligence without additional proof as to the cause of the malfunction. Although a court can take notice that an escalator is a complicated piece of machinery, it has no basis of common knowledge for inferring that its malfunction is the result of the [defendant's] negligence..." [emphasis original.]

I think the dissent's warning on not to assume negligence as the cause of the malfunction should be well taken, particularly with regards to the workings of an escalator where any number of complex inner workings could fail for any number of reasons. But I think a similar reluctance to accept such an inference could apply to the case of the falling flour or something else similarly mundane.

Barring reckless and obviously dangerous behavior, an accident victim will become injured only due to unfortunate luck. This is not to say that negligence can't play an operative role in the injury, but negligence could just as easily cause a victimless accident as it could an injury. The flour barrel could have fallen safely to the ground, injuring no one on its way. The haplessness of the plaintiff to have been injured is grievous and deserving of pursuing a remedy. But to presume an entitlement to the remedy I think goes too far.

Because what if the barrel's fall was entirely due to an accident in the truest sense? The court may not be able to conceive of such a possibility where its cause could not have been negligently caused by mortal man, but this inability could be due more to the limits of the court's imagination or experience than a limit to the physical laws of the universe. A shifting of soil and the settling of the building, otherwise undetected, or the fault of another party unknown to either plaintiff or defendant could just as easily been responsible for the injury. At the time of the injury only the plaintiff bore the burden of their unlucky timing to have been underneath the barrel as it fell. But the res ipsa loquitur doctrine allows the plaintiff to use the law as a lever to shift the burden of the misfortune onto the defendant. Granted the defendant may have the opportunity to craft a defense, but if the cause of the accident was due to some force of circumstance unknowable to the plaintiff, it may also be unknowable to the defendant. Yet unless the defendant can somehow come to know it, he will be liable for the damages. Thus the number of otherwise innocent yet hapless victims doubles from one to two.

Perhaps the flour example appears facetious in its believability. The court scratched its figurative head and could not think of any opportunity for the forces of nature to have conspired in such a way to make the barrel fall without any negligence on the defendant's part. If all the examples of successful use of res ipsa loquitur applied to similar situations where only the basic laws of physics needed to be overcome in order to trigger the accident then perhaps I would have less quarrel with the doctrine. But for the escalator example, more than mere gravity was at the root of the problem. Assigning the burden of proof to the defendant to explain the actual cause because of the presumption that he *must* have been negligent seems to take far too much for granted to be fair to the interests of the defendant. Even if the presumptions are disputable, the defendant should not have to do it. The stakes are too high because failure of him to do so adds him to the tally of victim, whereas for a plaintiff to fail to prove the negligence even in the face of there actually being some, while unfortunate, leaves the number of victims the same as happenstance had originally created.

I met with my professor to talk about some of my blog entries on torts. The first one we reviewed was the one on Vosburg v. Putney. Although that case is good law, were it to be decided again today my professor wasn't sure which way it would come out. On one hand, he said, tort feasors (someone who commits a tortious wrong) "take their victims as they are." In other words, just because the younger kid committed battery against someone with a disproportionate reaction (e.g., rather than no reaction or a minor bruise the older kid's leg nearly fell off...), the disproportionate nature of the reaction doesn't excuse the act of the battery itself (in this case the younger boy kicking the older one.)

On the other hand, causation is a factor in deciding torts cases (we've just begun to cover that type of issue in class.) If the defense, with today's available medical knowledge could show that the magnitude of the injury suffered by the older boy was caused by the original injury and not the younger boy's kick, then the younger one may have not been judged liable.

I'm not sure I feel any better about any of this though, and I stand by one of my earliest posts on the subject:

"Torts also bothers me for some of those macro reasons. The sense I've gotten so far is that one should never leave the house. Nearly everything you might do could be a tort and someone could sue you. To a layman I think there's some sense that the tort liability system may be out of control. As part of this Great Change I'm learning that it's not actually out of control - it actually seems fairly normalized and regimented - but it's nonetheless fairly insane and potentially socially destructive. As a society, do we want liabilities to be so easily applied? Yes we don't want people to be able to do bad things, but innocuously bad things seem to generate as great a liability as maliciously bad things. The effect of this would appear to be that we have a society which has no incentive to forgive culprits for their accidents."

We turned our attention next to the post on res ipsa loquitur which also bothered me on the same meta level. Nearly everything seems to be a tort. Everything. Egregious conduct, and innocent ordinary conduct. In theory you could sue anybody for anything. You could BE sued by anybody for anything. I'm finding it hard to find an upside for society with this arrangement, not because I'd want to deprive innocent victims of their opportunity for legal redress to a significant wrong but because the torts themselves don't seem to differentiate the incidental from the glaring in terms of transgressions.

What my professor basically said, echoing what we've also been learning in Civil Procedure, is that tort litigiousness boils down to the economics of using the court system. In Civil Procedure we've done some analysis on where the burdens of pleading, proof, and persuasion need to be in order to maximize the number of correct outcomes and minimize the numer of false ones.

(Actually, that's not entirely correctly stated. What we are trying to eliminate is error cost. So 100 incorrect verdicts that cost $1 each may be more desireable than one incorrect verdict that costs $1000.)

Cost analysis enters into the thinking of any trial lawyer. What will it cost to sue? What can be hoped to gain? Frivilous suits get filed because plaintiffs calculate that it will be cheaper for the defendant to pay off in a settlement than go all the way to trial. On the other hand, lots and lots of torts suits DON'T apparently get filed because even though the tort claim may be easy to prevail on, the possible payoff is dwarfed by the cost of pursuing it.

What my torts professor suggested is that the reason we don't all necessarily have to fear excessive amounts of lawsuits is because it's not economically viable for that many to be pursued.

But I still don't feel good about this. The fact that it's not cost-effective to pursue a tort claim doesn't make the claim go away. What concerns me is that there are so many plausible claims out there, and people are vulnerable to them. The fact that economic realities may effectively prevent excessive amounts of suing does not provide nearly as a reliable societal defense to them as it would if the tort claims didn't even exist at all.

Edit: this really applied to 10/15 so I changed the date.

Last Friday I appeared in court in both Pasadena, California and Boston, Massachusetts.

No jetsetting was involved, the first appearance was by phone. I had filed an appeal on an unemployment claim and Friday was my chance for a hearing before an administrative law judge. Even though it was over the phone I was sworn in before giving testimony and an official transcript was being recorded.

In Civil Procedure one of the first cases we read was Goldberg v. Kelly, a case that emphasized the importance of hearings when public assistance benefits might be denied. One of the aspects we discussed in class in considering their importance was the dignity value one gains by being able to directly participate in the process to preserve their benefits.

I had to miss my Criminal Law class in order to "attend" the hearing, which might seem like a waste given the relatively small amount of money involved, but I think it was worth it. I didn't get run over by the process, I got to participate in it directly. The sense of empowerment I got from the exercise instilled in me a strange sort of high for the rest of the day. I think that high was the dignity.

Dignity was a recurring theme for me throughout that day, a day that ended with a trip to the Federal Courthouse in Boston. The law school had arranged a "Courtroom as a Classroom" session, held in the courtroom for the en banc First Circuit Court of Appeals. A federal magistrate, district judge, bankrupcy judge, and prosecutor presented for about two hours about on what they do, the paths their careers took to get them there, and other particularities about their legal vocations. It was a generous use of their time and enlightening to get some sense of legal life after law school.

Also impressive was the courtroom itself. The entire building in fact is a sight to behold. Relatively new it stands on the water with sweeping vistas of the harbor. The courtroom inspires a sort of revery. Although its modern touches lend the room some sense of comfort, the arrangement of the room with the gallery pews and judicial bench prompts a sense of awe, driven home by the great seal mounted above and behind the bench. A courtroom is a temple, I realized, where we are humbled before, and celebrate, the power of our humanity.

Edit 11/1: Just got notice in the mail, I won my appeal.

Today a friend of mine at school looked up over the lid of his laptop and announced, "Do you know that there are only six federal cases that use both the terms 'explosions' and 'ninjas'?" thereby causing my other friend to exclaim, "Are you googlewhacking in Lexis-Nexis??!!"

My googlewhacking friend was also the one who went to our criminal law professor's office hours to discuss with him whether the villagers in American Werewolf in London would be subject to any criminal liability for knowingly allowing (or at least not stopping) a person who turned into a violent werewolf on a regular basis from going to London to wreak his havoc. Apparently the answer is no, because in neither criminal law nor in tort is there any duty to rescue. In other words, the villagers had no duty to keep a dangerous person from exposing his dangerousness to others. They might have had some accomplice liability had they purchased the train ticket to help send him off to London, but apparently they didn't do that. Not that I ever saw the movie; I'm pretty much taking my friend's word for this.

I also didn't see 28 Days which raised another criminal liability question. Apparently some activists break into a lab and free some monkeys who happen to be carrying a deadly virus. Consequently the liberated monkeys end up exposing all of England to the illness, from which the entire population inevitably dies. The activists could have potentially faced 10 million (or so) counts of felony murder for the deaths having occurred as a direct result of their burglary (of the monkeys) were it not for the fact that they all die too. Or so my friend tells me.

Both hypotheticals involve superimposing American jurisprudence onto crimes in England. Normally I'd doubt that such an imposition would be kosher, but then again, in the movies anything's possible. I mean, if you can imagine something as farfetched as having a werewolf running around eating people why not also imagine something as equally farfetched as America violating another country's sovereignity.

Wait a minute...

Suddenly worried about werewolves...

Recently I've gotten together with some classmates to begin reviewing our notes in preparation for finals in a few weeks. We've so far reviewed half of what we learned in Contracts and about 2/3 of what we've covered so far in Criminal Law.

At the study session yesterday our conversation briefly turned to what we've learned in Civil Procedure. We'd just studied two cases regarding summary judgment: Adickes v. S.H. Kress & Co. and Celotex Corp. v. Catrett. The decisions are seemingly quixotic: under Adickes the U.S. Supreme Court seems willing to be charitable towards the plaintiff in weighing her evidence before ruling on the defendant's motion for summary judgment. In Celotex the Court seems to hold the plaintiff to a stricter evidence standard.

In class our professor asked us to speculate on what could justify the distinction. Language in the subsequent Celotex decision made it clear that the latter merely finessed the rule from Adickes rather than overruled it, so we needed to understand the distinction in order to understand how the summary judgment rule may have been reshaped. One of my classmates, who was also in the study group, thought the distinction had to do with the type of claim being raised in each case. Adickes was a civil rights claim whereas Celotex concerned a tort claim for death due to asbestos exposure. I, on the other hand, suggested that a better comparison could be drawn if one compared the aggregate evidence in each case. In other words, rather than focusing on the moving party's evidence separately from the non-moving party's, look to see how the entire pile of evidence matched up against the pile from the other case. Arguably, in Adickes there was a larger aggregate pile, even though it wasn't entirely generated by the non-moving party.

What disturbed me about my classmate's theory was that it was impossible to look at the decisions and derive any sort of guidance about what kind of standard future cases should be held to. First of all, there was no language in either decision to suggest that the type of claim directly influenced the interpretation of Rule 56 of the Federal Rules of Civil Procedure (which controls the applicability summary judgment motions). Nor is there any language in the Rules themselves suggesting that different standards should be applied to different types of cases. In rare instances the Rules do make differentiations with regard to the topic of a case. An example would be Rule 9 which in general requires pleadings to maintain a mimimum notice standard except, as subpart (b) proscribes, in instances alleging fraud or misrepresentation.* These exceptions seem minimal, and with good reason. The Rules set standards to allow for efficient jurisprudence across all types of civil cases. If nuanced exceptions were allowed, judicial efficiency would be compromised. No fan of the school of thought on law and economics could want such a setup because it would add a level of complexity to an already complex and nuanced process. Not only would every trial have to contend with the usual batch of motions but it would also need to endure separate arguments on which category of rules each other motion would be considered under.

In talking later during the study group, my classmate reiterated her belief that the Court allowed for differentiations due to type of case and made it clear that she thought such a move would be a good use of the Court's discretion. For her it seems to boil down to a desire to permit and encourage judicial activism. I understand where she's coming from, to an extent. When I think back to some of the most pivotal socially progressive dictates from the Government in the last century, many of them have come from the U.S. Supreme Court: Brown v. Board of Education, Roe v. Wade, etc. An individual who has welcomed the enhanced definition and protection of civil liberties that cases like these have afforded can come to regard the Court as a social savior. My classmate seems to see the Court that way, but my views have become tempered.

In one way they've become tempered because the Court does not seem to be protecting ideals of civil liberties with anything near the voraciousness that they have in decades past. Sometimes I think the Court does very little to uphold them at all, and even tends to undermine them. One of the problems of bestowing a lot of power on the Court (or courts in general) to set social policy is that you have to be ok with the result if it exercises that power in a way you don't like. The same social institution that decided Brown v. Board of Education also decided Dredd Scott, for instance. A hero-like worship of the U.S. Supreme Court as Supreme Protector of Liberty is bound to bring about grave disappointment.

And my views have also become tempered in listening to the complaints of people whose preferences for public policy are different than mine. Sometimes the differences in preference are substantive, in that the policies they advocate for would, I believe, undermine other people's liberties. In those instances I hope for any governmental institution to use whatever leverage it has to stave off these incursions. But sometimes it's harder to tell which position involves the greater incursion. And sometimes the problem is not in agreeing about what the overall policy should be but on how it should be arrived at. People who hope that the government will do what's right can substantiate that hope only when they can have faith in that process. Such a worthy process would need to be clear, articulated, and equally applied. If we encourage the Court to become an active proponent of certain interests it can exercise discretion in such an arbitrary way that it will be difficult for anyone to have faith in the results, even people who might otherwise welcome them.

In a pinch I don't think it's inappropriate for the Court to exercise discretion. The Court is an important component of the system of checks and balances and I don't think it need humble itself to the legislative and executive branch. When those branches abdicate their responsibility in promoting liberty-protecting social policy the Court can and must step in. But getting back to the example at hand, that scenario is not what we are contending with. Redefining the Rules for Civil Procedure to coddle certain types of claims seems far beyond the realm of any believably necessary use of judicial power. Especially since the legislative branch can choose to handicap or favor certain types of claims when it establishes the remedial rights entitling aggrieved parties to sue. Only if the other two branches are capricious or clearly unjust in such delineations would it be acceptable for the Court to compensate accordingly.

* IBM recently filed a motion to strike three of SCO's defenses as defective.

"Under Rule 12(f), the Court 'may order stricken from any pleading any insufficient defense'. Fed. R. Civ. P. 12(f). Rule 9(b), in turn, requires that, '[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.'

"As detailed in IBM's Memorandum in Support of Motion to Strike Affirmative Defenses, SCO's Fifth, Fifteenth and Nineteenth affirmative defenses -- which allege fraud and inequitable conduct -- are improperly pleaded under Rule 9(b) and thus should be stricken. Specifically, SCO fails to allege any facts concerning the fraud that IBM is alleged to have committed. Under any interpretation of Rule 9(b)'s requirements, therefore, SCO's affirmative defenses are defective."

(You may want to read yesterday's post first.)

We have read three cases regarding summary judgment. Below is the analogy I've drawn to distinguish the different results. (Work in progress. May be edited subsequent to posting.)

In any trial, at least one party submits a sample of dough. The party with the burden of proof at trial needs to make sure that there are enough nuts and raisins in the dough somewhere to lead to a ruling in its favor.

When one party submits a motion for summary judgment, the dough of the non-moving party is rolled out. Under a simple reading of Rule 56, the moving party asserts the claim that the non-moving party could not possibly have enough nuts and raisins in its dough to justify a verdict in its favor. The court will look at the dough and maybe pat it a bit. It will not tear into the dough to look for the nuts and raisins, nor will it try to count them, but if the dough appears a bit lumpy the court may presume that a jury could find sufficient nuts and raisins. If the jury could find them, the jury could then count them and determine if there are enough to justify a verdict in favor of the non-moving party.

In Adickes v. S.H. Kress & Co. [398 U.S. 144], the Adickes dough sample was thick and gooey, making it difficult to ascertain the population of nuts and raisins. While it was likely that there wouldn't be enough nuts and raisins, it was hard to be sure at that stage of trial. But because the moving party, the defense, couldn't foreclose the possibility that a jury would find enough nuts and raisins to decide in favor of the plaintiff, it was left to the jury to poke around the dough to find and count them.

With the Celotex Corp. v. Catrett case [477 U.S. 317], the Supreme Court applied a more complicated analysis to the nuts and raisins question. The Court first said that the moving party, the defendant Celotex, could try to point out that the dough clearly contained no nuts and raisins, leaving it to the plaintiff Catrett to note that there were in fact nut-like lumps in the dough. The Court then remanded to the Appeals Court to determine if the lumps were suggestive of sufficient nuts and raisins for a jury to find and evaluate, or if the plaintiff's claim was still essentially a nut-less doughy pleading only.

Anderson v. Liberty Lobby, Inc. [477 U.S. 242] posed a different problem. Whereas in most claims a mere preponderance of the evidence is required, in certain types of claims such as libel there needs to be a clear and convincing determination of proof. The plaintiff rolled out its dough, and indeed there were suggestive lumps throughout. But the Anderson Court took the language of the law providing the remedial right and superimposed a cookie cutter on the dough sample. While there may have been evidentiary lumps throughout the sample, the jury could only find and count the lumps that were contained within the boundary of the cookie cutter. After applying the cookie cutter the Court patted down the sample, ignoring the outlying lumps, and determined that there weren't enough lumps within the cutter's focus that could lead the jury to find in the plaintiff's favor.

Technically this was posted 11/18, so pretend this was posted 11/17 as intended.

Edit 12/3 - some tweaks throughout, and Celotex section rewritten.

Today I'm mired in my moot court draft covering whether there's an interspousal exemption implied in the law that prohibits wiretapping. (It doesn't appear that there really is.)

One of the authoritative cases is Glazner v. Glazner [347 F.3d 1212, 1223 (11th Cir. 2003)] which abandons an earlier decision [Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974)] that had allowed for such an exemption. In the concurring opinion Judge Carnes wrote the following in response to Chief Judge Edmondson's dissent:

"... [W]e are told that some people may have chosen to live in the Eleventh Circuit because the Simpson decision allowed them to covertly wiretap their spouses. It actually says (and all the emphasis is in the original): "I am not trying to be facetious; but before today, some spouses might have chosen to live in the Eleventh Circuit because they could wiretap their own telephone without being liable under federal law." Dissenting op. of Edmondson, C.J., at n. 13.

I suppose, then, a conversation between a couple sitting around their breakfast table in, oh say, Colorado (the Tenth Circuit having rejected Simpson years ago) might have gone something like this:

Jim: Honey, I've been thinking, we ought to move to Alabama.

Liz: But Sweetheart, I thought you liked living in Colorado.

Jim: I do, Sugar, but there's a problem.

Liz: What's troubling you, Sweetie?

Jim: Well, Punkin', Colorado is in the Tenth Circuit, and its federal appeals court has held that if I wiretap your private conversations without your knowledge and consent, I may have to pay you damages if you find out and sue me in federal court. But if we move to Alabama, which is in the Eleventh Circuit, its Simpson decision will allow me to invade your privacy electronically without having to worry about your having a civil claim against me in federal court.

Liz: But Honeybun, doesn't Alabama's criminal eavesdropping statute make it a crime to covertly record conversations without the consent of at least one of the parties to the conversation?

Jim: It does, Snookums, but all I'm worried about is the potential civil cause of action in federal court, not having to serve time in the state slammer.

Liz: You'll look so good in jailhouse stripes, my Love. When do we move?"

Part of the reason I'm lukewarm to Boston University is because my heart has already been given to another university. Going to UC Berkeley [Cal] was the best decision I've ever made. It's a decision that has paid dividends over the years in so many ways, and with no signs of stopping. As my undergraduate years fade further into the past I'm becoming increasingly cognizant of the value I got in my education. Cal is often criticized as being large and faceless, with large impersonal lecture classes. There were large lecture classes, that part is true, but impersonal they were not. Each large class also had smaller sections led by capable teaching assistants. And the professors who taught the lectures were by no means aloof or unapproachable.

Last week I got an alumni mailing referring to a lecture series at Harvard. I recognized the name of the speaker, Leon Litwack, as my former professor from freshman year. He taught History 7B, an American history survey course. It was popular because it satisfied several prerequisites, so it was taught in the 800-seat Wheeler Auditorium.

In a sense it's a shame. I've often noted that my education was unconducive to my education. The undergraduate experience can be stressful and daunting, and sometimes it can be hard to appreciate the quality of one's education while caught in the throes of it. Consequently I don't remember the course perfectly, but I do remember certain things about it. We had to write a major research paper. Unlike high school papers where it was acceptable to read a bunch of materials that discussed a topic and then write a synthesis of what we learned, in this class we were required to access primary sources as much as possible. I wrote a paper on the support structure for Jewish immigrants on the Lower East Side and in the process got an appointment to do research in the archives of Ellis Island. I was allowed to drive over the temporary bridge from New Jersey where I was met by a park ranger who gave me a tour of the island, including areas that had not been renovated and opened to the public. As I walked through the hallways that I'm sure my relatives must have walked through decades earlier it was a near spiritual experience getting so closely in touch with history so personal to me.

Though as an undergraduate courses were seen as something to simply get through, these glimpses of relevance were inspiring. Similarly, a few semesters after the class, I was reading a magazine in the newspaper when I saw an article referencing Professor Litwack. Again I was struck by the lightning bolt of significance as I exclaimed, "I know that guy!" As others deemed his contributions important I came to appreciate how lucky I was that I'd been taught by him.

So when I saw the mailing mentioning his speech I decided I needed to go. I was only able to arrange attending the first installment, but I'm glad I did. Professor Litwack has done extensive work on Black History in America, which was the topic of his talk. He mostly spoke of the atrocities towards blacks in the South during the late 19th- early 20th centuries. "Race riots were what journalists called them," he said. "They were really massacres." Again, the primary sources are crucial to his scholarship. Rather than expound on his own analysis, although he did provide some of that too, he let the primary sources speak through him, as he quoted many of the people who lived through the period.

In my Constitutional Law class we had recently discussed affirmative action and how race-based laws were treated under constitutional analysis. "Is the Constitution a colorblind document?" my professor asked. The question reverberated in my head during the talk. I was left with the sense that the Constitution was not so much colorblind as just blind. If it's true to say it articulates acceptable bounds of civic behavior, it certainly in no way compels it. Defective behaviors, spawned independently in the hearts of its citizens and agents, who were obviously not colorblind themselves, acted unchecked by any heroic intervention of our founding document. That years later the hearts and minds of its citizens and agents might choose to undo the damage inflicted (e.g., through policies of affirmative action or other race-based preferences) should be able to withstand some sort of Constitutional scrutiny. If the Constitution could not step in to stop the damage how can it be constitutional to step in to stop the repair?

During the lecture Professor Litwack commented that this is not an easy history to assimilate, so Americans use selective amnesia on what they choose to remember. During our class discussions that amnesia was evidenced, as the merits of race-based policies were discussed in a vacuum as if there was no reason for them in the first place. Even court decisions read with the same naivety. A truly colorblind society is a fine goal to aim for but it's not achievable without reconciling society's past utter failures which we all need. The horrific chapter in American history of treatment towards its black citizens did not just happen to those people, it is a history personal to all of us.

This was really posted on 3/9, but I've got a backlog of ideas so I decided to backdate it to keep the posts spread out. Most of it was at least mentally composed a week or so before it was actually posted anyway.

I really like my civil procedure class. It's just so RELEVANT. I was telling my professor the other day, every time we turn another page in our casebook, there's SCO somehow involving that topic of procedure. SCO now has 5 lawsuits going (that I know about): 4 are fights they picked, against IBM, Novell, AutoZone, and Daimler Chrysler, and one is against Red Hat who sued them for a declaratory judgment regarding SCO's copyright assertions. Ultimately those copyright assertions are of critical importance to most, if not all, of the other cases.

Earlier this semester we learned about subject matter jurisdiction and whether cases could be heard in federal court. Roughly speaking if there's an issue of federal law, the case would be heard in federal court. I say roughly because the rules could never be quite that simple. Sometimes it also can be difficult to ascertain whether there is an issue of federal law at hand. It's not like these cases always sort themselves out cleanly, and the parties often disagree about the merits of having cases tried in federal court. State courts can tend to favor one party or the other, either with its common law or local juries. Litigants will therefore jostle over the question of jurisdiction in efforts to get the case heard in the court they prefer. Though ultimately it's not a question of their preference. A federal court cannot adjudicate where it does not have jurisdiction and at any time, including mid-trial, can step in on its own accord to refuse to hear the case even if both parties wanted it to.

Such maneuvering is present in the suit against Novell. SCO's plan to sue half the planet is dependent on it owning the copyrights it says it does. However, Novell has come out publicly to say that it, not SCO, actually owns the copyrights in question. Consequently SCO brought the state-created claim for slander of title against Novell in Utah state court.

Section 204(a) of the Copyright Act says that copyrights can only be transferred by a writing. You can't just tell someone that they now own your copyrights, you have to note it in writing with a certain degree of clarity. How much clarity has been for courts to decide. The question the parties are currently skirmishing over is which court is going to decide this: the Utah state court, or the Federal District Court in Utah.

Novell, in its notice to remove to federal court, said that an affirmative defense to slander of title is the truth of its assertion. There was a 1995 document, an Asset Purchase Agreement, between the two companies (actually, not the current SCO group but its corporate predecessor) that may (as SCO claims) or may not (as Novell does) have transferred the copyrights in question. Novell argues that because the issue in question is whether the document qualifies as a transfer of copyrights as required by Section 204(a) it is a matter of interpretation of federal law and belongs in federal court. SCO meanwhile argues that interpretation of the Asset Purchase Agreement is a contractual issue and in the purview of state courts. Both parties cite Jasper v. Bovina Music, Inc., 314 F.3d 42 (2d Cir.2002), which basically says that yes, if it's just a matter of interpretation of a contract it belongs in state court, but if it's a question of whether the document conforms with 204(a) it belongs in federal court. The Jasper court notes that since it's possible to construe almost anything as a 204(a) issue, as a result, the bias should be to construe these types of conflicts as contractual issues. However, exceptions exist and in certain instances a 204(a) analysis is proper. Unhelpfully, the court doesn't do much to articulate how the exceptions should be drawn.

So which is it in this case? Novell has yet to respond to SCO's motion so we'll have to see if it raises other arguments and which ones the court will accept.

The court documents can be found here:
Novell - Notice of Removal.
SCO - Plaintiff's Memorandum in Support of Motion to Remand.

Edit 3/11/04: I took a second crack at writing this entry. The title changed, as did some of the paragraphs. Just in case you blinked and couldn't figure out what was different.

Edit 3/30/04: Warning. Below is a tantrum. It is not written in my normal calm, articulate demeanor. It is shrill. It is petty. But it accurately reflects my level of pique wrought by the whole mess. I really did not have the spare time required to wade through this morass. I only wanted a pair of jeans, after all. I didn't expect it to be this hard...

It all started with my Presidents' Day Weekend getaway, the one where I drove 7 hours before remembering to pack my suitcase in the car. This gaffe required that I make a quick shopping trip to reconstitute my wardrobe, since I was going to be seen in public and didn't think it polite to wear the same clothes for the next three days running.

I ended up at a local mall where there was a Gap. I like Gap jeans because with their petite ("ankle") sizing their pants actually end where my feet begin, a rare feat apparently since most other pants I've tried on don't. I figured I could always use a new pair so I stopped in, where I discovered that they were running a promotion that if I bought a certain value's worth of clothing I would get a $15 dollar on the spot discount.

Here's where the trouble began. I tried on a pair of jeans and liked how they fit, but not the darker color. So I asked if they had my size in a lighter color. They said they didn't have them in stock, but if I paid for them now, they'd have Headquarters send out the right size. This meant that with the other pair of pants I wanted to buy I would be able to lock in the discount. It was very nice of them to go out of their way to make sure I could take advantage of the promotion, and also very smart. They didn't know quite how desperate I was for clothing at that particular moment. For all they knew I could have left the store making no purchases at all if I weren't able to get the benefit of the promotion simply because they didn't happen to have garment I wanted in the correct size.

But they are still entitled to some criticism. Apparently the pants in the lighter color are not the same. They are a different material and cut differently, cost more, and ultimately are not suited for my needs. But because they didn't have my size in stock to try on, and because they also never mentioned the difference, I didn't find this out until the pair was mailed to me. When I finally tried them on I discovered that I didn't get what I had asked for, apparently because what I had asked for didn't actually exist. OK, this was annoying but not unforgivable in itself. The clerks should have told me, but the mistake was probably innocent.

What is unacceptable is the ordeal I had to go through to get the situation fixed. I decided that I'd settle for the darker color, which had a better fit. It turns out that these jeans are $10 cheaper. So I went to a Gap in Cambridge last week to swap the bad jeans for the right jeans and get back the $10 difference. Sounds simple, right? I thought so, but apparently the Gap didn't concur.

No, regardless of the fact that I had to make this extra errand to because of their bad advice, the Cambridge Gap would not fix the situation without making me give up a portion of the $15 discount from the in-store instant rebate. How much of the discount was unclear, as the operators at the poorly-named "customer service" hotline could not explain by any reasonable rationale how much discount was apparently attached to the jeans that I had originally purchased. Was the $15 to be pro-rated over the two pairs of pants? Was it to be allocated based on the relative cost of each item? The receipt didn't indicate any discount had been particularly applied to the jeans, and, furthermore, the original Gap representatives had assured me, in response to my meticulous questions (including, "Is there any way that I might regret making this transaction in this way?"), that I would have no problem making any necessary returns or exchanges if the pants that arrived were unacceptable for any reason.

Already stunned that what should have been so simple - a return with a straightforward price-adjustment - had reached such Byzantine proportions because the clerks couldn't figure out how to press the right buttons on the cash register to make this happen, I was even more infuriated by the conversation I had with the so-called "customer service" agents who refused to instruct the clerks how to do it. According to them I was bound to the terms of an unarticulated "policy", whereas they could refuse to be bound by their explicitly-made agreements. After wasting a fruitless hour of my life, I left, unsatisfied and angry and ready to never set foot in another Gap ever again, nice fitting jeans be damned.

The next day I had a long conversation with my extremely wonderful contracts professor about the legalities of the situation. It was quite educational and a good review of the course. It was also a textbook lesson about the importance of reading numbers. She looked at my receipt, the one that wasn't quite clear about how the $15 had been applied. The Gap customer alienation agents had insisted that some of the $15 had been applied to the jeans. But the receipt said no such thing outright, and only had this weird line saying that $15 was 38% off. Off of what? None of the Gap clerks knew, but my professor looked at the relative prices of the jeans and the other pants I was not returning and realized that the $15 was 38% of that other pair. Therefore NO DISCOUNT, in fact, had been applied to the jeans. The Gap would therefore not have been entitled to make me forfeit any of the $15 to exchange the jeans under any circumstances, even if I hadn't had to make the exchange in order to clean up the mess THEY HAD MADE.

The Gap's refusal to make things right also made no sense at all by any measure. All I wanted was a pair of jeans and $10 that I had a reasonable – if not also absolutely correct – claim to. What sense did it make to nickel and dime me into the frustrated resolve to boycott them forever? Hoping that perhaps somewhere in the Universe there was a Gap representative with more sense than the idiots on the phone, today I went to a different Gap to try again. This time I asked to speak directly with a manager and was armed with the information about how the discount was applied. The manager was initially reluctant to do what I asked, but I think she didn't understand what I was asking for. "You can only have the jeans and the $10," she admonished me. Um, great, that's all I want. So the transaction was processed, very simply it turned out by one of the regular clerks with no omnipotent manager intervention required, and I was on my way with the $10 and the right jeans.

I'm not sure where that leaves me though. I'm so disgusted by the way I was treated in the previous attempt to rectify the situation. It was a situation brought about initially by very good customer service that unfortunately subsequently wrought some appallingly bad – if not downright dishonest – customer service. When you deal with a merchant the resulting transaction is its own contract, governed by the same rules of performance and breach that any other more formal contract would have. The Gap was essentially refusing to honor the bargain it had struck with me that original day in order to induce me to buy anything at the store. Consequently I'm not sure if the company can be trusted to honor any future agreements, at least not without me potentially needing going through a tremendous effort to hold them to their word. I'm therefore inclined to steer clear of them both on principle and lest I be vulnerable to their future arbitrary whims. It's not about the $10, especially since I ultimately got it back. It's about refusing to reward powerful parties who somehow feel immune to honor their legal obligations to the less powerful.

If only I were taller this would be much less of a sacrifice.

And I still hate shopping.

Edit 3/28/03: Date fixed to reflect when this should have been posted.

This entry might seem very poorly timed with respect to yesterday's post given its fairly morbid overtones, but I think Beth would find it amusing in that it's both a silly story about fish, and also somewhat reminiscent of the Monty Python Dead Parrot Sketch.

As I mentioned in reference to the Gap, my contracts professor is very generous in helping us work through contractual analysis of all sorts of obscure real-life fact patterns. Last semester she helped me process what kinds of damages I could pursue if, after waiting for my friends after school in reliance of their promise to take the train line I preferred home with me, they did not do so. (Answer: apparently not much.) Similarly, my friend Megan recently recounted to our professor the following tale of her defective fish as well:

"... I had a long argument with the man at the fish store [at the mall] the other day. The sign says 'exchange within 14 days with the original content and packaging'. So I tried to exchange my fish. He insisted that it wasn't the original fish, because the original fish was alive when he sold it. He said I can change fish, if I don't like the color. I said I didn't like that it was dead. I finally paid the 2.50 as a policy matter, because he was making a scene and getting very upset, going on about how expensive it is to run a kiosk."

Our professor emailed her back and said that she'd once gotten a fish for free under similar circumstances. In her case it was easier to prove that the fish was defective because the shop had lost other fish due to illness around the same time. But normally it's very difficult to prove whether premature fish death would be because of poor health at time of purchase or some neglect on the part of the buyer. "Because of this uncertainty, I think the UCC rule makes sense. The risk of loss stays with the buyer after delivery. To shift it onto the seller, you would have to prove that the fish was defective to begin with. An autopsy, perhaps? :)"

She probably thinks she's joking...

BU law professor Randy Barnett will be arguing before the Supreme Court on Monday in Ashcroft v. Raich over the legality of medical marijuana. (See this CNN/AP article for an overview*, and for a very readable explanation about the issues in this case, see this blog entry at Salon.) I haven't had a class with Professor Barnett, but I met him last year to discuss a curriculum issue. I found him approachable and passionate about what he believes in. Although from what I gather he leans more libertarian than I do, when it comes to civil liberties he and I might likely agree in many instances.

But like many cases that topically seem like civil liberties cases, although this one focuses on the ability for a patient to use medical marijuana, the actual legal argument has little to do with that liberty. The argument he will make focuses on whether the Federal government has the ability to regulate (in this case to ban) activity that takes place entirely within a state, with no implication of interstate commerce. His argument has support even from states disinclined to permit medical marijuana usage because the Federal government's argument, should it prevail, could negatively affect other states' rights issues. The Salon blog article is worth reading for more detail. Comments by Professor Barnett and another professor can also be found at the Volokh Conspiracy (a law professor blog), and a Harvard Law student posted a summary of the practice argument he made there recently.

I'm personally in favor of medical marijuana, in no small part because US drug policy as a whole is so completely dysfunctional. Its dysfunctionality is manifest in so many ways: disproportionately high sentences for non-violent but possessory offenses; a puritan self-righteousness that demands to regulate private behavior; the foreign policy (and with it, the domestic security) negatively affected by drug laws; the arbitrary choices between what is forbidden and what is not; the suppression of critical thinking in any anti-drug education... And for medical marijuana in particular the decision to forbid it seems incredibly unmerciful, ignoring substantial evidence that its usage can be indispensable to the health and well-being for some seriously ill citizens, often in a way that no "legal" substitute can. That local populations, via the states, can recognize this need and choose to permit the drug's use in this context is a triumph of self-government, and not one that should be overturned by a more distant federal one.

Of course, I say all the above with absolutely no desire to take drugs myself, and a tacit disrespect for those who (for no medical reason) would choose to. But I see no reason to use the weight of the government to perpetuate my personal judgment on the point, at least not in the indiscriminate, inequitable, unjust, and counter-productive way it currently does.

I also don't generally have a problem with federal power. I think it can be handy. I think it can be handy in ways that many states-righters would disagree about. But I don't think refusing the will of Californians to permit its people from seeking relief this way is in any way "handy" at all.

* In the small world department, I've been in Dr. Lucido's practice (the doctor mentioned in the linked CNN article who had prescribed the marijuana). In my experience he's an extremely enlightened practitioner, amenable to alternative homeopathic remedies when the standard treatments are ineffective. This is not to say he eschews conventional treatments. On the contrary, he pursues them, but he seems to recognize that if they aren't resulting in wellness there's no point in sticking with them, certainly not just because they are the conventional treatments. In my case I had a recurrent case of strept throat that I could not shake. Course after course of antibiotics resulted in nothing but my homeostasis feeling like it was dissolving. I asked for something else instead, since I clearly wasn't getting better under the usual regimen, which was just making me feel worse. So he took me off the conventional drugs and recommended Echinacea and large doses of vitamin C. It worked. I'm grateful. Not only that it worked but that he was so responsive to his patient's needs. A truly effective physician indeed.

Edit 11/29: Professor Barnett gave his argument today. By all accounts it sounded like a tough row to hoe, but the bits of transcripts (as opposed to the newspaper summaries) suggest he held his own. For what it's worth, yes 100,000 people is a lot of people who may need medical marijuana (Bush administration estimates) but in a population of 34 million, it's not all that many at all.

Edit 11/30: I just read this longer transcript. A comment by Scalia stood out:

Scalia: But isn’t it true that among the users of medical cannabis are whole communes with lots of people in them smoking marijuana.

The comment may have been facetious, but it reminded me of a bias I've noticed having lived on both coasts, that people living east of the Rockies tend to think of Californians as nothing but a bunch of hippy stoners living in communes (or movie stars). Of course the stereotype hardly holds true for the majority of the population. But Scalia's comment made me wonder if that subtle bias might reveal itself in the outcome of the case. Would the Justices be inclined to rule any differently if the state in question was Nebraska? How about New Jersey? In other words, might the perception of the state affect how the legitimacy of its local law is perceived? Or what about, if the state in question, standing alone, is the 5th largest economy in the world, might that change the analysis too?

Exams approach. First one up is Evidence next Tuesday. I've enjoyed the course. I like the material and the professor's great. Also it's nice that watching Law and Order episodes can constitute legitimate study time.

My professor invites the students to write songs on the course material, which he then offers to sing. Some classmates recommended I write one, but I couldn't do it until the very end because I didn't have all the material to work with before then.

True to my Huey Lewis and the News fan cred, I wrote my song based on their "I Want a New Drug." The professor performed it today during the review session. Some of it's a bit clunky, and the relative humor depends on knowing Evidence, but in case it doesn't completely suck I will share it here. Enjoy...

I want a new judge
One that knows what to do
One that knows 'bout relevance
And rule four hundred two

I want a new judge
One with no doubt
If it would make me look too bad
He'd have to throw it out

I'm feeling really nervous
He just can't let it in
He just can't admit evidence of the possible plea bargain
The possible plea bargain

I want a new judge
One that won't choke
One that don't think all them
Fed'ral rules are all a joke

I want a new judge
One who can surely see
Just 'cause I'd done it once
Doesn't mean this time was me

He really makes me nervous
I wonder what he'll do
I wonder if he will admit that thing I once told you
What I once told you
I told you once baby

I want a new judge
One who's read Daubert
One who knows this guy's a quack
He ain't no big expert

I want a new judge
One that does what he should
One who knows that privilege
Makes the evidence just no good

One that won't make me nervous
One that knows his stuff
This one partied hard in school and didn't study enough
Didn't study enough

Gavel solo and fade...

A woman who's being evicted from her apartment is quite upset with the judge involved with the case. So upset that she posted an ad on eBay, "Judge for Sale." The judge in question is not amused. There's talk of legal action being taken against her.

In one of the articles about the fracas, the reporter contacted a partner at a large law firm, a first amendment specialist apparently. The partner was quoted as saying, somewhat authoritatively, that the woman would have no defense. The quote gave the impression that this area of the law is cut and dry.

I'm not (yet) a First Amendment expert and can't speak to the doctrinal tenets this case might touch. But what I have learned is that the law is never so simple. In fact, we've been explicitly taught how, when presented with a position to defend for which precedent might not seem to support, to find a way to differentiate the matter at hand from those previous, to find a way to use the basic building blocks of the law so that justice can be done.

The law is a malleable thing, and it does lay citizens a disservice to build up the false perception, so often held, that it's anything more precise.

Posted 12/16 but backdated closer to when the thought struck me. In fact, I met a judge the other night (a different judge) and related my concern to him. He validated my sense of things: if presented with a compelling argument, which the spirit of justice would seem to support, he would do his part as a judge to make sure the law as he rendered it suited the circumstances appropriately.

Damn the television remote. And damn PBS for only showing the first installment of the new Masterpiece Theater so that I had a half-hour to waste before Monarch of the Glen came on, forcing me to flip channels in the interim and risk exposing myself to the frightening dreck that is Boston Legal.

It's impossible not to get sucked in, it sucks so much. The cast is good, but it was painful to hear Rene Auberjonois say "12(b)(6) motion" like he's never heard of one before (most likely because he hasn't) and as if none of his colleages had either. Of course, it appears that none of them (nor the judge in the hearing) remembered what one was from first-year civil procedure. Their client was trying to survive a 12(b)(6) motion to dismiss for failure to state a claim. But instead of drafting a persuasive brief, or actually arguing the point of law, they instead gave an ad hoc courtroom presentation full of philosophical pontificating on foreign policy, and when they actually alluded to matters of law ended up arguing for jurisdiction, which would have been a different motion.

From this little observation I'm not quite sure if series creator David E. Kelley is really doing his alma mater proud... (Although maybe this is what the CivPro final should be: watching an episode of Boston Legal and spotting the flaws...)

Edited 1/10.

Edit 1/11: (Of course, speaking of final exams, the issue that was argued was awfully similar to the one from my International Law Process course last semester.)

Edit 1/15: (Another law student review is here. A comment attached seems to think they did actually argue the 12(b)(6) part, eventually, but there is nonetheless some consensus that Real Life and Boston Legal may occupy separate universes.)

This afternoon will be the first meeting of my law and ethics class. It's a requirement: all law students need to take a course that satisfies the professional responsibility mandate of the ABA.

It's fairly striking how meticulous the law school has been in driving home ethical requirements generally. I've never been in an environment before where ethical duties were so consciously addressed. For instance, in one of my previous classes there was a system for signing up to get called upon. If you were prepared for class, you would circle your name. If you had 15 circles through the semester, you'd get an automatic bump up in your grade. But the professor was very clear - if you circled your name you had an ethical responsibility to be prepared if called upon. In another course the professor assigned students a date to be on call. He spoke gravely about how it would be a breach of ethics to not be present that day.

It's not that I see anything unreasonable with these requirements. Not being available or prepared would result in taking an unjust advantage. What struck me was the specific language used to make clear such behavior would be forbidden, and the apparently perceived need to clearly address it at all. It's almost like we aren't trusted, and the only way we might recognize our ethical responsibilities is if they were spelled out so clearly in those terms.

Without having taken the course yet I see ethical awareness as taking two forms: One, to be able to choose between a good option or bad the good one, even if it means subordinating self-interest if the other option would have caused some sort of harm or unfairness. I get the impression that law students are not regarded as necessarily capable of making the proper choice in such situations, perhaps because they are more likely to be blinded by the temptations or pressures of their circumstance.

I'm not sure better judgment can really be taught: I think it's a matter of personal philosophy if you are inclined to act in your self interest even if it might be to the detriment of others or simply unfair. Personally I prefer not to - I see causing unfairness as being too high a cost that my own personal gain wouldn't be worth. But for other people maybe it's necessary to propose a different cost, like disbarment or some other punitive sanction, in order to provide the incentive to make better choices.

The other form of ethical awareness is the ability to identify a choice as being either ethical or not in the first place. This is the area where I think the education can be most helpful, as we will soon find ourselves in unfamiliar situations with unfamiliar duties and responsibilities and power. Some guidance in navigating the gray areas can be very helpful, though ultimately it will still be up to us as individual people to make the correct choices once identified.

Edit: On my flight back from California earlier this week I sat next to a professor at another law school who teaches this material. I mentioned I was about to take the class over at BU and related to her my current impressions. I decided to document them here before I became immersed in the class to help track how my perception will change as part of my Great Change. Having now sat through the first class meeting since I wrote the above, I'm certain my views and attitudes will change as a result of the education, but I will reserve further comment until later in the process. Except to say that David E. Kelley may have redeemed himself: The Practice makes an excellent learning tool for this kind of thing...

In Wednesday's Law and Ethics class we discussed whether attorney-client privilege could ever be selectively waived. In other words, could you disclose privileged material to one party on the condition that it agree not to divulge it to another, thereby maintaining the privilege. Normally you can't do that - once you waive privilege, the cat's permanently out of the bag, and you can't assert it later to keep others from accessing the material.

The case in question raising the issue was In re Columbia/HCA Healthcare (293 F.3d 289 (6th 2002)). In that case the defendant company found through its own investigations evidence of the fraud that the government was charging it with committing, but it could assert privilege to keep from ever divulging what it found out. The defendant offered, however, to disclose these findings to the government in order to settle the matter, but only with the stipulation that the government agree to keep them confidential so that they could retain their privilege. (The company was afraid of subsequent civil lawsuits by private parties and wanted to make sure that privilege could prevent them from getting hold of the materials.) The theory behind this arrangement is that a secret divulged to someone who agrees to keep it secret would remain a secret. However, this is not usually how the waiver law works. Normally for the privilege to endure the material has to remain the secret of only the attorney and the client. Once any other party becomes privy to it, it is no longer a protectable secret and the attorney-client privilege is waived. The question the court considered here was whether there were public policy reasons to permit the exception to the general rule the defendant sought.

The majority on the court decided that there were considerable downsides to making this exception and voted not to do it. The dissent, however, thought such a plan had merit. One of the keys to Judge Bogg's dissenting argument was that there were strong public policy reasons for permitting this selective waiver since it involved disclosures to the government, which otherwise would not have had access to the material. The assumption underlying his argument is that the government would always be working for the greater cause of justice for the People, and that without access to those materials justice would be frustrated.

This assumption may not be sound, however. For one thing, without this disclosure, justice would not necessarily be stymied - the information might be accessible through other means. Furthermore, the government actor might not be the best protector of justice - perhaps private actions would lead to a fairer result. But the most significant problem is the presumption that the government's private settlements might serve the interests of justice at all. They may, surely, but it's not a certainty. And without transparency, no one would be able to know. The secret agreements necessary to protect the remaining privilege would prevent the public from ensuring that the government has been acting justly or in its interests. The public would need to blindly trust that the government's settlement actions were appropriate or fair without the ability to audit whether they in fact were. Such secrecy is anathema to an open and effective democracy and should not be tolerated. The relative merits of selective waiver aside, if it ever would be appropriate in any circumstance, these concerns of transparency preclude it from ever being appropriate in a situation where the government would be the sole party privy to the disclosure.

I heard about this case last summer in context of a discussion on the state of international law with regard to parental abductions.

It was suggested that this case may have been groundbreaking:

A child born in the US was kidnapped by its Austrian mother and brought to Austria. Under the Hague Convention, Austria had obligations to make sure the child would be brought back to the father's custody. The case, brought before the European Court of Human Rights, says that Austria failed as a state to protect the father and child's interests as laid out by the European Convention for Human Rights, and as such, was required to compensate the father for his injury due to the state's inaction.

From what I understand, this was the first major case to hold a state liable for not being more proactive to return children to custodial parents. Damages however were limited to compensating only costs the father incurred. The dissent suggested though that this damage award was far too low given the harm the state's inaction caused. During the conversation this summer it was suggested that the ruling itself, along with the dissent's argument, may heavily shape other international custody disputes, particularly to the extent that European states actively assert their domestic law and procedures in resolving them, since they may face hefty financial liabilities if they don't.

The decision.

I posted about the Sylvester case because something in my EU class on Tuesday had brought it to mind. Then later today I saw this case reported in the NY Times.

In England, libel cases are much easier for the plaintiffs to win than they are in the US. The burden is on the defendants to prove that everything they said was true, whereas in the US the plaintiffs have to prove that what the defendants wrote is false (more or less, but the point is that the respective burdens are much higher on the defendants/writers in England than in the US.)

In a famous case, known as "McLibel," activists who wrote a pamphlet, "What's Wrong with McDonalds" were sued in England by the company for libel. The activists didn't have money to hire lawyers, while McDonalds spent 10 million pounds on the litigation. The activists lost because ultimately they couldn't prove the truth of all the assertions and were required to pay damages to the company.

Today the European Court weighed in against the British government, saying that the trial was not fair. It ordered the government to pay 80,000+ Euros to the activists and offer them another trial.

From the Times:

"On Tuesday, the European Court of Human Rights said the ruling was unfair, in part because Ms. Steel and Mr. Morris were not granted legal aid."

...

"The European court also weighed in on freedom of expression, saying that there was a 'strong public interest' in enabling groups outside the mainstream to 'contribute to the public debate by disseminating information and ideas on matters of general public interest such as health and environment.'"

It's a fascinating piece of jurisprudence, also with potentially significant implications. Holding a state liable for failing to protect the rights of litigants in its system is a significant rebuke. Also, to the extent that the decision affects free speech, it might also provide pressure on England to adjust its libel laws to better accomodate independent dissident voices.

The case itself can be read here: Case of Steel and Morris v. The United Kingdom. It's a fairly easy read, and worth checking out for more details about the holding and the authority upon which it was based.

Interestingly, in the decision by the Court is a reprinting, for all the world to see, of the original pamphlet.

I'm a little perplexed by the requirement that lawyers need to automatically turn over incriminating evidence entrusted to them by clients. Either I don't properly understand it, or it's a troublesome rule.

In a civil trial lawyers wouldn't have the same obligation. If a client came in with a "smoking gun" document, "I think someone's going to sue me over this," the attorney could take possession of it without problem because there would be no obligation to divulge it until there was what I would refer to as a "triggering event," like a discovery order. No attorney would have an obligation to automatically divulge the document to opposing counsel without that order, and he certainly wouldn't have an obligation to approach potential adverse parties to show them the evidence in order for them to use in their investigations to decide whether to sue.

But in a criminal context lawyers would seem to have to do just that, even though the client himself would be under no such obligation to divulge the evidence. Police would need a warrant (and probable cause) to search for it in the defendant's possession. If the evidence were in a public place, the police would still need to search there as well. But if the police either couldn't get a warrant, or executed it poorly, or failed to search the public area, the lawyer's duty to divulge the evidence would do the police's work for them. And that hardly seems fair. Plus it eviscerates any of the other protections the defendant might have enjoyed if only he had not confided in the attorney.

The counterargument, of course, is that it wouldn't be fair for defendants to be able to squirrel away any incriminating evidence simply by shielding it with attorney-client privilege. The police should have a fair crack at finding it. But an automatic duty to divulge seems to address this concern at the expense of other legitimate ones.

A better solution would be to require there to be some triggering event in the criminal context like there is in the civil. An example might be a search warrant. A properly executed search warrant on the defendant's possessions naturally would not turn up the incriminating evidence if it was no longer there (because the attorney had it). But the existence of the warrant satisfies the 4th Amendment concerns and could signal to the attorney that now he had the obligation to turn over the evidence. In the case of evidence that had otherwise been in the open (this to address evidence that might have been picked up and given to the lawyer, since if the defendant had kept it in his possession it then would have been subject to the warrant requirements) the police could attest to the court that it has searched these areas and ask the court to compel the attorney to turn over any evidence in his possession that would otherwise have been discoverable in that location.

Without these types of triggering events it seems unjustly dismissive to defendants' due process protections (against search and seizure and self-incrimination) for the attorney to simply hand everything over automatically. If a client comes to an attorney with a smoking gun, literally, and confesses to a murder, the attorney should be able to protect the gun like he can protect the confession, at least up to the point that the police would have legitimately discovered it in the course of investigating the crime.

I have no idea why I didn't post this until 2/18. I wrote it on 2/17, so I've backdated it.

Professor Barnett posted on the Volokh Conspiracy a proposed law, the "Supreme Court Renewal Act of 2005," which would limit Supreme Court terms and change the schedule by which appointments are made. Read the proposal, but the major difference to the current system is that a justice should be appointed every Congressional term, whether or not there's a vacancy. This requirement would effectively cap terms at 18 years, because senior justices would be pushed out as new justices were appointed.

Professor Barnett opened the post up to comments, which is something the professors on the Volokh Conspiracy do but rarely. I decided to weigh in because I thought the proposal poor and ineffective in solving an actual problem:

"If the problem with the status quo is that judicial nominations are too political, I don't see how a process that makes nominations political by routinized design could be an improvement. Worse, this process would seem to inject politics directly into the very operation of the court.

The basic premise to this entire plan seems to be that justices should reflect the political will of the majority. Ignoring for the moment the need for justices to protect the needs of the minority, and presuming that political will is ever accurately reflected in the composition of Congress, the proposal completely de-emphasizes any qualities to the justice him or herself as a just and capable interpreter of law. The language discussing the recall to the bench of "Senior Justices" in reverse seniority is particularly telling in this regard. It seems to reflect the belief that the more recent the nomination the more accurately the justice would be a proxy for the will of the people, and that this political accountability would be desirable. Even assuming this belief to be sound, is that really what we want from our justices? What about experience? What about their capabilities as legal thinkers?

When we lament the current politicization of the nomination process, we are lamenting the loss of any reasonable basis to evaluate the qualifications of judicial nominees. We should reverse that trend, not codify it."

I'm annoyed with Thrifty, although at this point I'm mostly annoyed that they've interfered with my annoyance by doing the right thing, but not for the right reason.

When I went to Florida for election day I ended up with a flat tire. It didn't seem worth the trouble to try to get the rental car company to come deal with it, so I put the spare on myself (er, I got the retired law prof I was with to change it for me) and then drove it back to the airport to drop it off. I told them about the flat (they probably would have noticed it at some point) and said, "don't worry, I took care of the change myself."

"That's nice," they said, "but you owe us for the repair of the tire," and they charged me $20 for it. I was flabbergasted. They said, "You have to bring the car back in the exact same condition as when you found it. You're lucky we could patch the tire and only charged you for the labor. A new tire would have been $75."

Normally, yes, I agree that I'd need to bring the car back in the same condition. I should not bring it back with avoidable damage like dents or broken tail lights that would reduce the value of the car as an asset. But flat tires are not particularly avoidable (I'd been driving on the interstate, not offroading in the Everglades) and thus are fairly routine wear and tear. While it's entirely likely that with good driving a car may go its entire life without being dented or scratched, a tire is likely to go flat at some point no matter how skilled the driver.

Furthermore, they as a company are in a better position to absorb the costs of this kind of wear and tear than the customer. Now, I'm ok with them not being on-call to come out and change it for me. I'm in a better position to absorb that part of the flatting risk: while they might have customers hither and yon, making roadside repairs unpredictably expensive, I have AAA. So that's fair. But here they had control of the costs. I grant you they wouldn't have if I had gotten the tire repaired elsewhere and come back to them for reimbursement, but that's not what was happening. I was back at the company, where they had already-employed staff available to handle the repair. The $20 charge might have made more sense if they'd had to run out and hire a guy specially to take care of it. But it took a guy they already had working for them maybe 15 minutes, tops, to take care of it and didn't seem to particularly slow down any part of their operation. In other words, the repair did not cost them anything, or at least nowhere near the $20.

Worse, the idea that I would have had to pay them the retail cost for a new tire is preposterous. Not only would I not be about to control the costs (it's not like I could shop around for a deal) but it would reward the company with the value of a new asset. An asset whose value it would continue to be able to enjoy, though I, who paid for the entire thing, would not.

Tires have finite lifespans. Though an unpunctured one might last for many thousands of miles, the realistic lifespan needs to be calculated with the likelihood of puncture in mind. When the company sets its rates it should set them according to what it needs to charge to recoup its costs for general maintence, including for tire repair. Over an entire fleet of cars, however, that reduction will not likely be too great. But in any case, the company is in a better position to cheaply absorb the loss. Whereas sticking the cost to customers makes them bear a disproportionate and un-amortizable loss. Of course, in theory abusing the customers, while seemingly profitable in the short term, may likely hurt it in the long run when customers decide to do business with companies with less usurious policies.

Which leads me to my current dilemma, on whether or not to rent a car from Thrifty again. (Or Dollar, which seems to be the same company). I have some upcoming trips to rent cars for, and I needed to know if they'd do right by me before giving them any more business. So I called them, and they refunded my $20. But they seemed to be doing it as a favor, and not because it was the right thing to do. As I debated the policy with the rep she reaffirmed it. "I can give you back your $20," she said, "But that's our policy."

So they did the right thing but for the wrong reasons, which leaves me in an unpredictable situation. I rent from this company not infrequently, and I would gladly continue to do so if I knew I didn't have to absorb the risk of a flat. If they can be counted on to refund the cost for such repairs, then, while it's an annoying process to have to go through, I could still do business with them. But if there's the danger that they would ever defer to the policy and refuse the refund, then the rational thing for me to do may well be to rent somewhere else. Of course, given the regularity of my patronage the rational thing for them to do is not inflict this policy on me again at all. So I guess what I really want to know is whether they are a rational actor or not. Unfortunately, in light of their pursuance of the policy in the first place, I fear the answer is no...

In my law and ethics class I'm totally the gunner. And I totally don't care. I raise my hand whenever I feel like it, which is often. I'm maybe more engaged in that class than any other. Still, I often pause to make sure no one else has something to say. And when other hands are up I totally expect my professor to call on them first. But if no one else has anything to say, and I do, I don't hesitate to add my two cents.

Today my professor pointed out a dichotomy in the ABA rules governing attorney fees. Contingency fee arrangements must always be in writing, but the ABA rejected a rule requiring other fee arrangements to be put into writing. He speculated that there might be a cynical reason behind the rejection, that attorneys just don't want to be bothered dealing with the writing requirement if they can get away with it. But then why have the rule for the contingency fee?

I suggested that it could be because of the statute of frauds. Whereas an hourly fee would seem to be a straight contract relationship, a contingency fee seems to transfer a property interest in the possible award to the attorney. The statute of frauds generally requires that property transfers be in writing.

Of course, I'm not an expert in the statute of frauds, nor can I remember all the particulars from Property about hypothetical property interests. So for all I know I could be way off base.

I kind of wish there had been someone else in class with the inclination to comment. Even if it were just to tell me that I'm wrong.

I throw this out now, and I suspect I will follow up on it at some point.

Law schools, like mine, offer some dual degree programs: JD + MBA, MHA, or MA in communications or international relations... but these programs mostly keep their respective disciplines in separate spaces. Students might in their own minds think about one in context with the other, but the subject matters stay mostly separate. Only law and economics really seems to involve a true mixture of one academic discipline really informing the other.

In reading Eugene Volokh's recent essays contemplating punishment, I've been reminded of some of the social theory I learned as a sociology undergrad. It's been a long time, 9-10 years since I really thought about it, but in the context of the law I'm studying now it seems to make a lot of sense. (In particular, I was thinking about Durkheim and his theories on mechanical and organic solidarity and how they bear on crime and punishment in society.)

I think the law should be looked at through the lens of social theory more often, but I'm not sure enough scholars or practioners do.

Maybe I can start a trend.

Verizon invites customers to pay by phone or through its website. The website would be most convenient for me - I'm online all the time - but every time I try, their website is always broken in some way. So it just swallows up my time and effort and I end up still needing to find some other means to pay. By phone might also be workable, but it's a mode of payment that seems very dependent on phone reception, which I no longer seem to have reliably. (Thanks, Verizon.)

So I pay by check. Only last month I had a slight envelope locating problem - the check was all ready to be mailed, but it ended up stuck in my locker until I got back from Japan. Oops. But I dropped it in the mail as soon as I got back and they've now long since had the money.

Still, I wasn't surprised to see the outstanding amount on this month's bill. They got the money late, I understand. But I was surprised to see the $5 late fee tacked onto it. That's a pretty substantial penalty on a bill of $44.01 - more than 10%.

Oh, but it wasn't a penalty - it said very clearly on the bill:

"The charge is the greater of $5 or 1.5% per month as permitted by law, and are liquidated damages, not a penalty." (Emphasis added.)

They've got to be kidding - liquidated damages? Liquidated damages for what?

a) Liquidated damages apply in situations where there's been a breach of contract. There was no breach here. I performed my part (albeit imperfectly). They got my money and they continued my service, suggesting that even they themselves didn't consider the late payment a breach. Furthermore, it's not like each month's service constitutes a separate contract with its own potential for breach. The contract I have for them is for a year, and it's clearly still in effect, so again there was never any breach that could trigger a liquidated damages clause.

b) Liquidated damages are appropriate only when there's no good way for the non-breaching party to cover its losses due to the breach. These clauses come up in situations like summer camp slots (and are still subject to litigation over their appropriateness, but at least they are presumptively plausible in this context): if a camp reserves a spot for a camper who cancels at the last minute, the camp will have a hard time getting someone else to take that spot. Liquidated damages ensures they don't suffer financially as a result of the cancellation. Liquidated damages can also apply to situations where the vendor could sell to an unlimited number of customers. Maybe the vendor could find another to take the breaching party's place, but perhaps that vendor would have had that customer anyway. Liquidated damages in this kind of situation would allow the vendor to recover from the loss of the breaching party's business it was otherwise entitled to without sacrificing the additional business of the "substitute" customer.

Neither of these scenarios applies to Verizon, however. I didn't prevent them from taking any on additional business. If it were true that Verizon can only bear a certain number of customers (which does not seem to be the case, given that they continue to solicit new ones), providing me service for which I don't pay might be taking up business capacity that they'd prefer to provide to someone who did pay. But Verizon has no such limitation, like a summer camp with a finite capacity. And, again, I did pay. They still had my business, as well as any other business they managed to load up on from other customers. They suffered no loss for which they needed liquidated damages to cover in order to be made "whole."

c) The strongest argument for Verizon is that by my payment being late, they had cash flow issues which made my delay expensive for them. This I doubt: Verizon is an enormous company with enormous cash flow and is well equipped to price its services and manage its money in anticipation for the inevitable late payment by a customer. Or two. Or a hundred. Etc. I therefore doubt they suffered any real, measureable loss.

But even if they did, damage recovery is limited to the loss suffered. In the case of liquidated damages, which are predetermined in advance of any loss, they need to be reasonable in proportion to the value of any actual, eventual loss. Five dollars on a $44.01 bill is not reasonable - it's more than 10%! Even if Verizon was so destitute that it had to rush out and get a loan to cover the two weeks it hadn't received my money by, I don't think it cost it 10% of the delayed amount to do it. Plus it's incredibly unlikely that Verizon had to pursue this scenario at all. And that $5 amount is fixed regardless of the amount owed. It only becomes the more reasonable 1.5% figure at $500, an amount where I could see it perhaps becoming more expensive for Verizon to cover my late payment, and yet even at that point they would still limit the damages to 1.5%. If we assume that these "liquidated damages" really do cover costs incurred relating to cash flow, can we really believe that in the Verizon universe, it's cheaper for them to cover a large debt than a small one?

So, for all the above reasons, Verizon has no business billing me this $5 late fee. I called to tell them as much and the agent kept saying, "I can't give you back your $5," until I must have said the magic words "good customer service" at which point all of a sudden he snapped into action. Fine, whatever. But some consumer protection group may want to take a look at this - at $5 a pop, Verizon is probably walking away with a tidy sum from a lot of its customers that it has no legal entitlement to.

Edited 5/4/05. I'm also flattered to report that this post was referenced here.

Yesterday I flew down to Washington, DC for a variety of reasons, one of which was to take in a day of the 99th annual meeting for the American Society for International Law, of which I'm a student member.

I got there in time for the 12:30pm presentation on "Globalization, Development, and Intellectual Property: New Challenges and New Opportunities." This is an area of huge interest for me, and what I worked on last summer. There's a tremendous amount of tension between the advocated interests of developed and developing countries. The former tend to have well-developed industries with lots of IP that seek to have strong international enforcement of their perceived rights. The latter are more preoccupied with making sure the basic needs of its people can be met. Often they require access to the knowledge works of developed countries in order to accomplish this. Whether it's affordable drugs, or affordable textbooks so that its students can become educated, these needs are often stymied by international IP agreements like TRIPS, which were developed by and are most suited for developed countries without these types of grave problems. In fact these agreements often exacerbate the challenges faced by developing countries, forcing them to either go without access to essential knowledge, or to resort to piracy. Which under these agreements can lead to sanctions against them further limiting their ability to develop.

On the panel was Francis Gurry and Deborah Halbert. The latter is a political scientist interested in how international IP intertwines with local politics. The former is an official for WIPO, who spoke about some of WIPO's current work. I should say, because I imagine that someday I might need to work with him, that Mr. Gurry himself seems to be a friendly, genial gentleman. I'm nonetheless critical of much of what goes on at WIPO and feel that it doesn't sufficiently serve the needs of developing countries (or of developed ones, for that matter.) There's a lot more to discuss on this topic than I wish to go into at this point – even the presentation itself was at limited depth due to limited time. But I did take notes on what was said.

After the presentation I left the meeting briefly and went to visit the aforementioned employer from last summer. It was good to re-establish the connection, as I'd been out of touch since going back to school. It was a short meeting, but it involved a further discussion on the exact same issues as were raised during the presentation.

Then it was back on the metro to return to the ASIL meeting for the keynote speech, a presentation by Supreme Court Justice Ruth Bader Ginsburg on the role of international law in American jurisprudence. She was introduced by Condoleeza Rice.

My observations here are more on style than substance. Others have reported on what was said in more detail than I'm able (I wasn't able to take notes), and it might even end up on the C-SPAN website at some point.

But I wasn't impressed by Rice. She's a smooth talker, to be sure, although she still made certain errors, repeatedly. Like she kept calling the group the ACIL, not the ASIL, even though she got it right when she referred to us by the full name. Once I would never take issue with, but when it happened again I started to wonder if she's always this sloppy with names.

But what I was really struck with was what I perceived as an undercurrent of desperation her glossiness seemed to betray. It seemed like she had bet all her political capital on the wrong horse, and she knew it. It seemed like she craved the validation and legitimacy that this kind of crowd probably withheld from her superior. In her comments she made some very reasonable statements along the lines of why the countries like the US with its "rule of law" are better than those without it, except that it seemed like she realized that for everything she said was undesirable, someone could easily hold up a mirror to the US and wonder why we were trying to get away with it ourselves. She also, again repeatedly, referred to Justice Ginsberg as her "good and dear friend," (or something similar) but in a way that made me question the sincerity of the relationship. Again it seemed like a very deliberate seeking of validation from the crowd by holding up Ginsburg's friendship as an endorsement of her. It seemed very awkward and contrived, and not really appropriate to belabor so meticulously those two or three times she mentioned it. (Edit 4/6: But you don't have to take my word for it; judge for yourself.)

For her part, Ginsburg graciously accepted the introduction, but I was unable to discern any particular warmth in her social connection to Rice. Of course, this could also be because of her somewhat taciturn nature. Ginsburg's personality as represented through her demeanor is one that's extremely measured. She spoke with tremendous precision. No thoughts dripped from one to another; each one was clearly enunciated. I've also never heard someone speak so fully footnoted! No thought that wasn't hers wasn't completely cited in reference during the course of her speech. For anyone else I might have thought they were simply reading off a page, but her speaking style wasn't quite so clipped that I thought so. Rather, it seemed like this was the natural flow of her diction. She strikes me as a woman with tremendous intellectual gifts whose analytical training has so fully informed her personality it would be impossible for her to speak in any other way that might obfuscate the absolute clarity of her thinking.

I did tend to think though, as a rhetorical matter, that she wasn't persuasive enough. So even-handed was she in articulating the issues and perspectives involved with whether and to what extent US courts should recognize international law in their decisions that I don't think she won the day for her own opinion. However as a study of the matter it was thorough and complete, and her own perspective - generally, that it may be appropriate at times and so should not be preemptively precluded - was well justified.

Edited 4/4.

Edit 4/7: Justice Ginsburg's transcript.

A guy agrees to sublet a room in a three-bedroom apartment, where three girls normally live, for $400/mo (one girl's share of the monthly rent). When he shows up to move in, the girl is not there. He meets the landlord who says the girl was not allowed to have sublettors. But the guy can sign a lease with him for the apartment for $600/mo. The guy (it's late, he has nowhere else to go) agrees and signs the lease, paying the first $600, and is let into the apartment.

What result? Whom does the guy owe the next month's rent to? If he does not pay either the landlord or the original roommate, can either sue him? What can he do about the overcharge? Can the other roommates lock him out? Can he lock the other roommates out? Is there anyone he could or should sue now?

It would seem that he'd have a claim against the original roommate. He relied upon her promise to live in the apartment for $400/mo, and she failed to perform by not delivering him possession of the premises. On the other hand, his damages would seem to be limited to the $200 difference, since he apparently does have possession of the premises.

Or does he? Was it not trespass for the landlord to let him into the apartment? It was already in possession of the three girls (two of whom were still there), who had exclusive enjoyment of the premises. It was not in the landlord's capacity to reconvey by a second lease the premises for anyone else's exclusive enjoyment of them, since the landlord did not have possession of them. (Simply having a key or owning the surrounding building is not the same as having possession of the apartment.) But that's what the lease would seem to do - it gives this guy complete and exclusive access to the entire apartment, in conflict with the original lease which gave complete and exclusive access to the entire apartment to a different group of people.

The complicating factor, where real life merges with the law, is that everyone may be fine with this arrangement, except for the guy who's paying too much and seems to be in a legally-precarious spot. The other roommates expected and consented for him to be here, the original roommate has someone else to pay her share of the rent, and the landlord has an extra contract to make sure he gets paid. (Although this seems incredibly redundant - the other two roommates were jointly and severably liable for the entire rent, not just their individual shares. His lease with them was already a guarantee that he'd be paid. A question now would be whether they are entitled to pay less than their original rent because the guy pays his share directly to the landlord.) But because the guy has possession of the apartment, and the roommates' consent to be there, if this ever went to court, it's not clear anyone was damaged.

It's also not clear if the guy should just hold his breath and hope nothing goes wrong, or if there are affirmative steps to take to sort out the arrangement. And if so, what they should be.

Hypothetically speaking, of course...

(Don't panic, this fact pattern has nothing to do with any clients...)

My thinking is that the second lease is void. The guy should not continue to pay the landlord, and instead should pay the lesser rent to the other two roommates as the original sublease agreement had set forth. If the landlord tried to sue him for unpaid rent, he would fail because he did not have a valid lease to collect on. But I'm posting because at least one person has suggested that he should continue to pay rent to the landlord. Since he does have possession of the unit, it would somehow give the lease a presumptive validity. Personally, I would find such a result scary. It seems exceptional that the landlord would be able to have two leases, and if he were to be able to get away with it, it would mean that tenants everywhere would be (even more) vulnerable (than they already are).

I doubt this will conflict will arise this summer, but in theory it could.

My day job is in a law firm, where there is a duty of confidentiality to clients, some of whom may be reporting domestic violence situations where there may also potentially be abuse to the children.

My side job is teaching, where as a result I am a mandated reporter and obligated by law to report any reasonable suspicions of child abuse. See Cal. Pen. Code Sec. 11165-66.

This likely won't become an issue for me because it's a big metropolitan area, and the families I'll be teaching are much wealthier than the firm's clients, but I do wonder what would happen if a kid I teach comes from a client family where as a result of the representation I would have knowledge of potential abuse.

The law seems to limit knowledge to that acquired within the scope of the employment, but if I'd had external knowledge to raise my suspicions, it would be much easier to "know" as a result of my teaching interaction about the possibility of abuse.

Some guidance may come from Sec. 11166.3(a)(1), which does seem to exempt clergy who who find themselves in a similar situation from their mandated reporter obligations ("A clergy member who acquires knowledge or a reasonable suspicion of child abuse or neglect during a penitential communication is not subject to subdivision (a)."). However doctors, who also have confidentiality obligations, are not exempted from mandated reporter obligations.

The statute, as far as I can tell, also makes little mention of attorneys, apart from district attorneys and attorneys representing the affected child (Sec. 11165.7(a)(18)), so there is little guidance there. Nor could I find any cases on the subject.

Should the matter arise, I think a strong case can be made that attorneys who acquired their initial suspicions through their attorney work should be exempted like clergy are, but I can't find direct support affirming this analysis. Which seems like a significant problem. It's not that I think there are so many attorney-swim instructors walking around, but there are many other types of teaching opportunities professional adults can pursue. Maybe an after-school model rocketry club, for example. Surely we would like to encourage all interested and qualified adults to get involved with teaching children in the community, and surely we would want to include attorneys in those ranks.

Volunteers are excepted from the mandated reporter requirements (Sec. 11165(b)), but it hardly seems a good solution to require lawyers to teach for free in order to avoid the conflict. Not every attorney earns enough where foregoing even a nominal payment for their labors is so easily affordable.

I suppose the question is academic until such a situation should happen to arise, but given that "[a]ny mandated reporter who fails to report an incident of known or reasonably suspected child abuse or neglect as required by this section is guilty of a misdemeanor punishable by up to six months confinement in a county jail or by a fine of one thousand dollars ($1,000) or by both that imprisonment and fine" (Sec. 11166(b)) it seems like an important one to resolve.

Lest people worry that by teaching swimming lessons I was depriving myself of further developing as an attorney, I should point out that I am developing skills I can use later as a lawyer.

(excerpted from post at De Novo)

Strategic planning, empathy, tailoring one's communication appropriately for one's audience – these are all things that any swimming teacher and litigator must be able to do. Think convincing a jury is tough? Try getting a stubborn four year old to put his face in the water...

It also now seems that my alternate career has prepared me for significant constitutional inquiry as well. Note the question recently posed by Judge Kozinski in the en banc hearing of Jespersen v. Harrah's:

"What if you employed swim [instructors] and you required they wear bathing suits? ... I think it's probably true that women's bathing suits are more expensive."

Well as it happens I can tell him a thing or two about that, having been a swimming teacher every summer (save three) since 1989.

Yes, yes we do wear bathing suits, which, as women, are different than those that men wear. Our anatomy happens to be a bit different, so the garments need to be structured a bit differently as well. It may be true in some instances that because more fabric is involved with women's suits they may cost more than the equivalent men's versions. However, this isn't necessarily true. Why just the other day I just saw a women's Speedo at Marshall's for $15, likely cheaper than your typical men's Speedo at the local sports mart. Prices vary based on where you shop and what you buy more than they necessarily vary by the sex of the intended customer. Furthermore, even some men – particularly on swim teams – are now wearing torso-covering swimsuits. And with the risk of sunburns and skin cancer, there's a greater impetus for both sexes to cover up more skin. Thus the anatomical differences between men and women have increasingly little bearing on the swimming teacher's uniform.

But indeed, even where there is a disparity between equivalent men's and women's suit prices, the facilities where we work often can absorb it by providing the suits as part of the issued uniform. In fact, I've worked at pools where the women got the better end of the deal, getting not only their torso-covering bathing suit but also a set of men's trunks to use as shorts. (Presumably the men could have gotten a woman's suit with his uniform grant as well, although unlike women and the swim trunks there is likely little constructive use the men could have put a woman's suit towards.)

However, those instances, where there was a specific uniform requirement, applied only to employees who were also lifeguards. For people who were just swim instructors and not on-duty lifeguards, they simply needed to wear their own generic bathing suit (in one instance the pool required it to be navy, but there was no other requirement beyond that, save a prohibition on string bikinis). So even if instructors purchase a bathing suit in preparation of the teaching job, they will still have a perfectly usable bathing suit that they can use on any other occasion calling for one. If a female instructor happens to spend more on the suit than a male one, she may also have greater occasion to use it, thus amortizing her cost more favorably than the male colleague might.

In sum, with all due respect to Judge Kozinski, it is a bad analogy to compare the uniform requirements of Harrah's with the uniform requirements of swim instructors. Not only is the garment-cost issue a red herring, but in Harrah's the issue was about decorating one's skin, not covering it up. And in the case of the swimming teacher, both sexes have the same needs in that area – to make sure they are slathered with enough sun cream so as not to burn. Sun cream is exactly the same for both sexes. Now, perhaps a swim facility could also demand that women also wear make-up while they teach. But that would be just as pointless as Harrah's requiring it for its workers. There's nothing intrinsic about the activities of teaching stroke mechanics or delivering drinks that requires such an accentuated highlighting of one's sex. And that's what make-up's about – highlighting one's femininity. (Yes, as Kozinski pointed out there are men who choose to wear make-up as well. But notice in the implicit tone of derision that make-up is still generally viewed as a femininity-enhancing endeavor.)

It is inequitable to require women to highlight their femininity, when men are obviously not under the same obligation. Not only does it amount to an additional financial burden not equivalently born by their male colleagues, but the very requirement by design undermines their equality. It tells women that they are not valued for the things they can do but rather for how they look. And they need to look exactly how society's hegemonic biases tell them to look – as pretty objects of sexual allure.

No, the swim instruction is a bad analogy to draw. Because even as we instructors all teach in our thin, spandex garments that leave little to the imagination, we stand there as individuals, valued for our talents as teachers and not as sexualized creatures for whom our sex is an operative factor in our employment. For it to be otherwise would be unconstitutional.

Lawgirl posted a link to this article about a woman in North Carolina who was attacked (shot) by her ex-boyfriend in her home, and as a result is now being evicted by the landlord. The landlord was quoted as saying:

"'In this case the victim was attacked by someone with whom she had an ongoing relationship and had invited onto our property,' Piche said in a press release. 'While we empathize with her situation, her guest's actions were not only a breach of her lease, but more importantly, they endangered the lives of every other innocent person in the area.'"

If this were California, I don't think the landlord's actions would be permissible. And I'm inclined to doubt they are in North Carolina as well. What I commented on Lawgirl's site:

"An eviction is not an automatic thing. She doesn't have to leave just because the landlord tells her she needs to. The landlord has to go to court with an unlawful detainer action in order to get the court's permission to make her leave. Although the system tends to skew towards the landlords, it's not a slam dunk, and as long as she answers the UD she stands a chance to be able to stay. How good a chance may depend on state law, but if this were California I think it would be pretty good. Landlords can't just force people out on a whim, even on a month-to-month lease, and in some places there are additional laws protecting victims of domestic abuse.

The really sad thing about all this is that she may not know her rights, and will just give in to the landlord's bullying. All the just laws in the world can't help if people don't avail themselves of them."

I suppose the question is whether being involuntarily attacked could possibly be construed as a material breach of an enforceable part of the lease, and if so, whether it was uncurable through any other means short of eviction. I think a strong case could be made for it not being either. I also wonder if the federal fair housing (antidiscrimination) laws could be applicable here.

I hope she gets the legal assistance she needs to be able to stay in her home, and I would also hope she'd be able to collect some sort of punitive damages to discourage landlords from doing this to anyone else in the future. There is a huge social cost when people can not be safe and stable in their homes. The ex is the one who compromised her safety; the landlord should not be able to make her lose the latter and become a victim yet again.

On Thursday Julian Ku posted a link to an article by Andrew McCarthy in the National Review. In response to the London bombings McCarthy took issue with the differences between England and US in their tactics in the "war on terror." In particular, McCarthy took umbrage with what Ku summarized as a greater insistence on using the criminal justice system as a means of dealing with terrorists than the American military system.

Wrote Ku:

"McCarthy's basic point is that the UK, unlike the U.S., has generally embraced the 'law enforcement' approach to the war on terrorism. As McCarthy notes, the UK has:

- adhered to Protocol 1 to the Geneva Conventions, which make it more difficult to classify someone as a unlawful combatant.
- tossed out tough new anti-terrorism laws as a violation of EU human rights standards
- released British nationals detained in Guantanamo Bay not because they did not believe those detainees were dangerous, but because they had no legal basis to prosecute them.

The larger sort of legalistic point is that the UK and many countries continue to see terrorism as a criminal law enforcement problem than a military problem. According to McCarthy, this hampers the UK's ability to fight terrorism."

I think Ku has perhaps over-simplified McCarthy's point, but it seems a fair summation of at least some of his argument.

Ku then went on to wonder:

"Is it legitimate for countries fighting terrorism to adopt aggressive military tactics generally reserved for wartime: e.g. kidnappings and renditions, preemptive bombings/assassinations, preventive detentions, harsh interrogations? Or should countries stick to the basic law enforcement model that is more likely to protect citizens' civil and political liberties? Or is there some third way that could balance these concerns?

My own take (for what it is worth) is that we need some sort of third way, but if I had to pick between the 'war' approach vs. the 'law enforcement' approach, I would have to go with the 'war' approach as the lesser of two evils."

I think the idea of a third paradigm has some merit, but given the two basic choices – civilian criminal justice or military – the former is vastly better. I also think that to the extent McCarthy argues that the London attacks evince a shortcoming of using the law enforcement model to counteract terrorism, that position is unsupported.

I commented in response (slightly edited for reposting here):

"First of all, I think Andrew McCarthy's point [...] only holds up if the people behind [the London] attack were people whom the criminal system had been incapable of dealing with but that the military system would have. For instance, were these people the same ones whom the UK had gotten released from Guantanamo but not charged? If yes, perhaps he has a point - but only to the extent that the criminal justice system was too incomplete to effectively deal with these kinds of crimes or conspiracies. A solution would be to add more prosecutable laws - not gut the whole system.

And if not, if these were new people that would not have been picked up as enemy combatants, then his point is moot, because even if the UK did things the US way, the attacks likely still would have happened. (In fact, maybe the attack shows the failure of the US system, in that despite the many, many people the US has incarcerated, the attacks still took place.)

Lately I've been thinking, as you are, that perhaps a third avenue might be desirable. But in lieu of that, I think the default should be the conventional criminal justice system. My view on that is that if it isn't good enough for the most heinous crime, it's not good enough for the most petty.

The larger problem, however, is that the criminal justice system tends to deal with crimes after they've happened. Prior restraint is not usually tolerated. A third system should be able to marry the two paradigms: preventative, as provided by the military system, but not without the due process protections that the criminal justice system provides.

In other words, if we think there's a certain category of people who need a certain special treatment, we better have the right processes and procedures to make sure only the right people end up so treated."

Law.com had an article about a case from Texas (Peck v. Peck), where a Texas appellate court upheld a ruling that an ex-spouse could not have a boy- or girlfriend stay overnight in the house when the child was present. Purportedly the appellate decision was an affirmation of the lower courts' ability to interpret the "best interests of the child."

But this sounds like a very wrong decision, both by law and by policy.

I'm away from my Con Law textbook so I can't cite the specific case, but there was a Supreme Court decision on the rights of grandparents – which basically said they have no rights to the child, unless there has been some defect to the parenting. (And keeping a kid away from the grandparent does not count as a defect.) Obviously a jointly-custodial ex-spouse does have more rights to the child than a grandparent would, but the take-away from that case seems to be that the parent with custody of the child has a wide degree of latitude to make decisions for the child without risking being overruled. I don't see why that latitude wouldn't also be afforded to the parent with actual physical custody on a particular day. Physical custody usually implies a fitness on the part of the parent, and unless the boy- or girlfriend was an abuser or otherwise engaging in criminal behavior, the decision to actively date this person does not equate to a defect in parenting.

Furthermore, to expose that decision to either the court's – or the ex-spouse's - scrutiny seems to fly in the face of Lawrence v. Texas, a decision that seemed to be very clear on getting the government out of the bedroom. But that's exactly what the government is doing, when it uses custody proceedings to tell an ex-spouse whom he or she may sleep with and when. It also gives the other ex-spouse a degree of control over someone else's private life that hasn't been permitted since slavery. This is not to say that the other ex could overrule a marriage – although by this court's reasoning, why couldn't it? – but that this veto power over dating relationships gives an individual a tremendous amount of power over another, a kind of dominion over another's autonomy which cannot be justified in a society of free individuals. Even within the bounds of a marriage there are limits to how much control one spouse can have over the other (eg, marital rape is still rape), and after its dissolution there can be even less. But that's not what these Texas courts seem to be saying. They seem to be saying that by virtue of having been married to and having born a kid with a person with whom a marriage is no longer possible, the ex-spouse needs to forfeit control of their private lives and personal happiness to this other person for up to the next 18 years.

As a policy matter, this decision can't yield a good result either. Particularly for those people who think having an intact family is a tantamount policy goal. The first marriage is gone, but the obstacle to date freely prevents new family units from being formed. Sure, not all second marriages work out well for the kids or parents involved, but sometimes that's because people don't know what they're getting into. Allowing for families to naturally grow into cohesive units seems to be in everyone's interest – but having to kick people out of the house right after dinner hardly seems conducive to that goal.

This is obviously a matter of Texas law and the Texas courts might work it out on their own, but Texas law must yield where US law provides. And this seems like another instance – like Lawrence – where Texan legal hegemony comes into conflict with the rights afforded to individuals by the national Constitution.

That's how court was called to session yesterday in Courtroom 3 of the Ninth Circuit Court of Appeals. When the judges were ready they pounded twice on the door and then the court clerk immediately banged the gavel. "All rise!"

The three judges silently entered and took their seats. Then the one in the middle swooped his arms out, and lowered them, wordlessly telling the assembled crowd to be seated.

The courtroom was packed more than a half hour before the 1:30 session began, and many people were turned away, told to watch the proceedings on closed circuit tv in Courtroom 1 and the cafeteria. In fact, it was a bit of a problem finding seats for all the lawyers who were representing parties in the afternoon's cases.

It was in the James R. Browning Courthouse in San Francisco. A big old solid granite building, the interior was ornately decorated in the way they used to decorate buildings decades ago. The hallways were broad and gilded, and inside the courtroom ornately carved plaster reliefs and tile mosaics covered the walls. The ceiling had three stained glass skylights, and even the tiny tiles on the floor were decorative. It was a room whose attention to decorative detail was commensurate with the importance of what took place within it.

If it is ever true, as many believe, that lawyers are power-hungry and arrogant, appellate hearings are the great equalizers. Lawyers who've practiced for decades can be reduced to quivering creatures humbled before the bar. Two cases were heard yesterday, a habeas matter from Nevada, and an appeal of class certification in an employment discrimination case. The first was disposed of quickly, with each attorney taking no more than the usual allotment of 15 minutes to make their case. Both attorneys did well but were clearly nervous. The first one clutched the sides of the wide lecturn in a way that hardly looked comfortable, but probably kept his arms from flailing. The second one spoke too softly at first and had to be asked by one of the judges to speak up. But it was clear that they were not seasoned appellate litigators, and the court did not expect them to be. They were simply advocates whose clients' interests happened to have reached that stage of airing, and so they went where the case called them.

The discrimination case was different. It was a big, well-known case and the advocates had been chosen for this moment. The judges weren't vicious, but they laid into the lawyers for that case more than they had the previous. Yet the lawyers generally withstood the onslaught well.

And then it was over. After the last attorney concluded, the judge announced that court was in recess until 9:30 am tomorrow morning. And with that we all stood and they left the room, and then so did we.

The appellate argument I went to hear yesterday was in the matter of Dukes, et al. v. Wal-Mart. The larger case is an employment discrimination claim raised by several female Wal-Mart workers. But this hearing was focused exclusively on whether the lower court judge had erred in giving the lawsuit class action status.

A class action lawsuit generally means that one case can be argued, and the result will apply to any individual who is part of the class. In one sense it's efficient: if there are many people who have suffered the same harm, there only needs to be one lawsuit. On the other hand, class action lawsuits can be very expensive for defendants to settle or lose because they'll have to compensate all the people affected, as opposed to just a few who managed to have their suit(s) brought.

That ability to bring a lawsuit in the first place is also one reason class action lawsuits can be useful (or harmful, depending on your perspective). Complex litigation, particularly against large corporations, can be very expensive and it's hard to get an attorney to take the case if there's not a possibility of being compensated for the effort at the end. Most individual people can't afford to pay an attorney a straight hourly rate, so attorneys often take cases like these on contingencies, meaning that they get about a third of the money if anything is recovered as compensation. But for just one client – or maybe even a handful of clients – there may not be enough to recover that a third would sufficiently compensate for the labors of the attorney. Also, a lower amount of potential damages may induce the defendant to stretch out the litigation – something very expensive for the plaintiff's lawyer that hasn't been paid yet but possibly cheaper for a company, who may hope that if they can just outlast the plaintiff the matter will go away. With a class, however, the damages pot gets increased and so it becomes more economically feasible for the attorney to take the case. Not only would there be the possibility of a greater reward at the end, but because a loss would be so expensive for a defendant it may induce it to settle. Having a class action thus increases the certainty that the plaintiff's attorney will be paid at all, as well as increasing the likelihood that it will be paid well.

But while it may help plaintiffs get lawyers, it also may reduce their total rewards. One argument raised yesterday was that it may not be in every client's interest to be part of a class because she might be entitled to a greater reward if her case was heard on its own. (Whereas for a class action, the ultimate result will probably be somewhat amortized over all the people in the class and less tailored to each individual's actual losses.) On the other hand, as mentioned before, the class status does help induce settlement, and for many plaintiffs it's better to get some money with certainty than risk getting no money at all. Plus the possibility of class status may be an important factor in whether a wronged plaintiff can even get her case heard in court at all.

So the plaintiffs in this case were very interested in having the lower court's decision granting class status stand. And Wal-Mart was very interested in having it overturned.

Wal-Mart had three arguments for why it should be, although I believe only one was fully vetted in court. (The others are likely argued in their written briefs.) Class status can only be granted when there is "commonality and typicality," and, Wal-Mart argued, here there was not. Their argument then focused on some of the evidence that the lower court had used to make that determination, and the methodology by which it was collected. In particular the discussion focused on whether the statistical data the plaintiff's provided aggregated from Wal-Mart stores across the country was as valid as data gleaned from each store individually, as Wal-Mart proposed doing. The appellate court did question, however, why the individual data would have yielded a different result, to which Wal-Mart said that the aggregation data "masked" what's really going on at each store.

Part of the tension in this entire case stems from each individual store having discretion in hiring decisions. Wal-Mart believes that because each store has discretion in whom it hires that it is not possible for the company as a whole to be discriminatory in its hiring practices. But the plaintiffs argue that there is still enough structure in the process originating from the company that causes Wal-Mart to, across the board, pale in its salaries for women compared to its competitors.

The answer to this conflict does seem to bear on the class action status. As a class action lawsuit predicated on Wal-Mart potentially having a discriminatory corporate hiring policy, the evidentiary scrutiny will be paid to those corporate policies themselves. Whereas in an individual discrimination lawsuit, it's the hiring supervisor's actions that would be most scrutinized. Wal-Mart argued that it was denied due process by turning the case into a class action because it meant it would not have a chance to individually dispute each discrimination claim, something that would not matter as much if the root of any discrimination was from a central corporate policy, as the plaintiffs claim.

In a sense, whether or not this case is a class action or not determines which case will be argued: the one proposed by the plaintiffs or the one by the defendants. But that's not what the appellate court is considering. The hearing yesterday was focuses exclusively on deciding whether the lower court judge had erred in giving it class status. The inquiry first needs to resolve what standard of review the court should use to consider the correctness of the lower court judge's decision, and then decide, using that standard whether the decision should be allowed to stand or not. In this case the plaintiffs argued that the correct standard should be "clear error," meaning that unless the lower court judge had made a huge mistake in interpreting evidence or law, the appeals court couldn't undo it (even if it disagreed with it.) Wal-Mart, for its part, preferred that the appeals court look at the totality of evidence and reconsider the question, necessarily reaching the opposite result.

Either way it's a tricky case, and the arguments yesterday tended to end up considering the merits of the entire case, or discussing the wider policy reasons for or against having class action lawsuits at all. One such complaint about class actions that was raised is that they can get unwieldy if it is a very populous class (as this one is suspected to be). On the other hand, individual lawsuits can also be unwieldy, and at least one of the judges seemed dismissive of Wal-Mart's argument that potential difficulty in managing this case as a class action would be justification for overruling the class status.

In the end, however, on the issue of whether the lower court judge erred in awarding class status I don't think the appeals court will overturn the decision. Unless there was some crucial argument in Wal-Mart's brief that was not raised during the oral arguments, Wal-Mart didn't seem to explain why the appeals court should use anything other than "clear error" as the standard to evaluate the decision, nor demonstrate that one in fact had been made.

Law students pretty much anywhere at some time or another during their studies take a moot court course. It's a class in appellate advocacy, where students learn how to draft compelling briefs and then speak before a panel of judges.

We are often told (or at least I remember being told) how important it is to show the utmost respect for the judges. That lesson is mostly taught in the context of the presentation of oral arguments – be sure to say "Yes, your honor," or "No, your honor," and show them as great a deference as possible. Do not get a judge angry with you and risk having him hold it against your client.

The same admonition is just as applicable for the brief, however, as it is for the oral argument. Do not offend the presiding judges' sensibilities by showing anything less than the utmost respect for the lower court judge, no matter how wrong you think his decision was.

Unfortunately, the attorneys for Wal-Mart may have missed class that day, because in their brief they apparently used a lot of grandiose language about how their client's due process rights were "trampled" by the lower court judge. And at the hearing yesterday one of the judges called them on it.

"I want to ask you about some of this language you used," he began slowly, and then read back a handful of miscellaneous sentences in a subtly dismissive way. At first it was hard to tell where he was going with it – was it just another question about Wal-Mart's argument? – but then, at least to the law students in attendance, it became clear that he was upbraiding the attorney.

"You need to be courteous to the judge," he chastised Wal-Mart's lawyer, but your language doesn't show him any respect. "You're at a big law firm and you haven't learned this lesson yet?"

The judge went on. "Do you really think this language is going to persuade us?"

While the audience may have grasped what was going on, the attorney may not have, because his immediate response was, "That is our hope."

Maybe the attorney was oblivious, or maybe he was just good, because he didn't crumble under the pressure. While the crowd squirmed, he kept his composure. He uttered several times, "No disrespect meant to Judge Jenkins," and then, like a good advocate, he reframed the problem in terms of the client's interests. "We really feel Wal-Mart's due process rights are compromised by the decision," he reiterated, and eventually, after several awkward and tense minutes, the storm passed.

But not before the presiding judge made clear, "You owe Judge Jenkins an apology."

I don't think the case will turn on this issue, but I'm pretty sure that if you are an appellate attorney this is the kind of thing you never want to hear from the judge.

Edit: Actually, if I recall correctly the judge said something like, "If you ever see Judge Jenkins again, you owe him an apology." It seems like sort of an inevitability that he will, since this case will be returned before him one way or another after the appeals court rules. So it was probably not a good move to antagonize him this early in the game...

Yesterday's Conflict of Laws class discussed questions of European jurisdiction: in which nation could a case be heard? There is something called "general jurisdiction," or, generally, where may a party be sued, and something called "specific jurisdiction," which means, more narrowly, where can this party be sued on a specific matter. You can always sue where there's general jurisdiction of a court over a party, but you can only sue in a different place if there's specific jurisdiction of the court over the defendant in that matter.

In Europe, general jurisdiction is allowed by Article 2 of (one of) the Brussels Convention(s). It says that you can always sue a person in the EU state where they are domiciled. (The term "domiciled" is a technical term, but it roughly means where the defendant comes from.) Whether you can sue them in a EU state other than where they're domiciled is a question of specific jurisdiction, and for this Article 5 explains that in matters of contract, the place of performance of the contract dictates where there can be specific jurisdiction. For example, if the contract says Fancy Widget Maker will deliver 2000 widgets to Widgets R Us in Germany, then Germany is the place of performance. (As with everything, there are complexities and exceptions, but this is generally the way it works.)

However, you can only sue about matters connected to that contract. Additional torts or other claims cannot be combined with a contract claim. This differs from the US, where they more often can be. Generally speaking, while the US courts are generally more into the value of judicial economy (in other words, as long as it's fair to have the defendant before this court at all, let's get all these related matters taken care of all at once), in Europe the balance of interests is different. It's ok to take care of business (contract) matters where that business took place, but as far as Europe is concerned people only exposed themselves to that particular jurisdiction for the sake of that particular business. You can't use the occasion of a contract suit to now go after them for other things, forcing them have to contend with a different country, different laws, and different language than that of where they are from.

Still, even in an international business agreement (in other words, a contract), figuring out the place of performance can be complicated, and in some instances you could be looking at several different countries as possible places. There may be some value, then, in incorporating into the contract an agreement designating where, should a dispute arise, it would be adjudicated.

The simplest arrangement, if the parties agree, would be to articulate within the contract where the "place of performance" should be considered to be. As long as the designation has some connection to the transaction, it will probably be ok. But even this designation might not offer enough certainty to the parties, and they might instead choose to include a "choice of court" clause.

Such a clause, however, would end up supplanting Article 2 general jurisdiction. Meaning that issues broader than just those related to adjudication of the contract can now be heard in this chosen court. I think there may be a requirement that these other issues at least be peripherally connected to the contract, as in "but for" the contract this tort wouldn't have occurred, but unlike specific jurisdiction in the EU generally, this clause can now allow tort claims to be heard in that chosen court, irrespective of the defendant's domicile. So by writing in such a clause any Article 2 protections that might have been available to a defendant, to limit his exposure to suit in a foreign place, will now be undermined.

Arguably, as long as there wasn't uneven bargaining power in forming the contract, this situation may not necessarily lead to unjust results. But it does raise the issue, as many things do, of whether and if parties should be able to negotiate around the law, particularly law designed to protect one or more of the parties. Of course, there's lots of law that serves a protective purpose. Articles 2 and 5 are from European Community treaties, but contract interpretation is a matter of national law, and each nation also has its own rules.

So you could find yourself with a vicious cycle, where the contract may specify a court to adjudicate it in that wouldn't find the contract valid enough to enforce for that choice of court clause to even be valid. But because that clause exists at all, the Article 2 rules on general jurisdiction would no longer apply. So you could conceivably have a defendant be haled into a foreign court over a potentially invalid contract and/or invalid choice of court clause and still have to defend against it using that court's law.

One thing that can help alleviate this kind of situation is to also include a "choice of law" clause in the contract as well. This kind of clause tells whatever court the suit is brought in whose law to use to interpret the contract and choice of court's validity.

But it still seems problematic that these clauses can supplant Article 2. They may be perfectly fine - perhaps even clearer than the default law - when everything goes smoothly. But then, if things always went smoothly, no one would ever need to go to court at all.

In my Conflict of Laws course we (also) have been discussing not only how US and EU law differs in judicial procedures, but also how these differences create conflicts that may arise in a particular matter.

Today's discussion focused on recognition of judgments. Say a French court awards you $20,000. Can you go to an American court and have the American court enforce the order? Generally, yes. But then it can get complicated.

If you had an injury worth $100,000 in damages, you could go to court and either sue for the whole thing, or you could "test the waters" and only ask for $20,000. This kind of "testing" may often happen in Europe because of the matter of legal fees: they are frequently awarded to the winner and are calculated based on the damages asserted. In other words, the bigger the damage claim, the more attorneys' fees. Which is great if you win, and not great if you lose. So it may be worth filing a small claim as a test balloon, so that if you lose, you won't have to pay so much in fees. And then if you win, in France (as an example, as this is true in other places), you can go back and sue again for the rest of the amount.

Such a strategy is unheard of in the US, however, because of our notion of res judicata. Res judicata basically means that you get one change to have the issue heard on the merits. After that, you are precluded from raising the issue again. This not only applies to issues actually raised, but also issues that were so related they could have (and should have) been raised too. A similar situation played out in the US would mean that a plaintiff with a $100,000 injury who only asks for $20,000, and wins, would be stuck with a $20,000 award and have forfeited any claim to the other $80,000. (I suppose clever lawyers might find creative procedural ways of getting around this, but this is the general way things work.)

But in terms of foreign judgments, the complication arises. The plaintiff who won in France might come to the US to enforce the judgment. But because in France he could still sue for the other $80,000, he could still do that in the US too. In fact, if he had jurisdiction to sue for the whole $100,000 in the US, he could conceivably win an $100,000 award PLUS also enforce the $20,000 French judgment. The American concept of res judicata wouldn't apply, and only unjust enrichment (to prevent double collection) would be available to keep the plaintiff from getting $120,000 off of an $100,000 injury. (In a trial situation, a defense lawyer would raise the issue and it would probably get sorted out. However, if the defendant didn't appear – as may well happen for jurisdictional and procedural reasons – it would only be a very lengthy, after the fact, action by the defendant that could set things right.)

I find this situation problematic. Without commenting on the French logic of allowing test balloon cases, it seems like a more just way of dealing with these judgments in the US would be to treat the French judgments as final entities. A US court could then say, "France says you are entitled to $20,000? OK, we'll help you get it." Then if the plaintiff went back to France for the other $80,000, it would look to an American court like a discrete judgment also enforceable in the US. The problems, I think, arise when the US courts instead have to apply French law on the finality of judgments (they are much less final there than they are in the US) in order to enforce them in the US, which leads to American courts having to enforce results that would otherwise be impermissible under American jurisdiction.

Note, I'm not saying that the US shouldn't recognize French decisions as binding and valid, or refuse to enforce them at all. I just think that allowing their enforcement in the US should be a much more narrow judicial enterprise, dealing with each judgment as a finite result and not a piece of an entire process.

In my French class yesterday:

Me (reading aloud): "La resolution de contrat, lorsque celui-ci est syn... synal... synallagmatique?"

Teacher (in French): "It's the same word as in German."

Me: [sigh]

Actually, the word exists in English too: "synallagmatic." But it's not a word I've ever encountered before, not even in law school. Although interestingly, Dictionary.com says it means "bilateral" in Louisiana civil law. I suspect, however, that it may mean "bilateral" in a distinctively civil law sense. In the common law system of contracts, when we mean bilateral we say "bilateral," but then our whole perception of the directional dynamics of a contractual agreement may be significantly different from those in civil law systems.

Take German law, for instance. German contractual law includes the concept of separation. This means that in any transaction involving the transfer of ownership of some good, there are at least three separate agreements bound up in the transaction:

- A contract for the sale of the good
- A contract to transfer the ownership of the good, and
- A contract to transfer ownership of the money used to pay for the good

These agreements may be thought of as three strands twirled into one rope. And, by analogous extension, as we all understand, cutting one strand will not necessarily cut the whole rope. (This is known as the principle of abstraction.)

To a common law American, this situation may seem strange. If one of those strands gets broken, how can the rest remain? For instance, if the ownership has been transferred, but the money has not been paid, how can the party who received the good still keep it?

The answer normally is that normally he can't. German law allows for such injustices to be resolved. But it does so much differently than in the common law. In Germany, a first possibility for recourse is to have structured the larger transaction so that the (sub)contracts contain conditions precedent. In other words, the contract could be constructed so that the agreement for the transfer of ownership in the good wouldn't become valid until the money was paid. This kind of arrangement can work to both parties' benefit: the payer can make payment conditional on possession of the good, and then the seller can make the transfer of ownership (which is not the same as possession of the good - ownership refers more to the possession of the title of the good) contingent on receipt of the money.

The second possibility for recourse arises when the contingent conditions seem to have been met, but something else still invalidates one of the agreement strands. German law, as a codified civil law system, has lots of specific rules governing contracts' validity. For instance, it has a rule prohibiting exploitive pricing. If such exploitive pricing existed within the agreement, any parts of the agreement incorporating it would become invalid. In a contract like the one described above, this rule would invalidate the contract on the transfer of the money, and also the contract addressing the general agreement to transfer the good. But the rest of the transaction would still be in force, which means that the payer would get his money back, yet he would still have the good since the transfer of ownership contract would still be valid. But then Germany has more still more rules that can address this inequitable situation. For example, under German law a party cannot retain a good that he has no legal right to. Looking back at the contract as a whole we see that the part addressing the agreement to sell the good has become invalidated. Thus there is no longer any legal basis for the buyer to retain the good, and so he will have to give it back.

In US common law the same result would be reached, but the rules governing it are a bit more fluid. Even in a bilateral agreement, where both parties promise to do something, the agreement is still much more unified. If one party fails to perform, then the whole contract fails for breach and the injured party gets to sue for damages to "be made whole again." However, it should be noted that American contracts are not necessarily any more fragile than those in Germany, where the other contractual threads can still hold a fractured agreement together. Common law allows for the notion of "partial breach," where the courts will try to keep the contract from failing completely by simply requiring the breaching party to pay damages to the injured one to compensate it for the breach it caused. So if, for example, one party had agreed to pay an amount for a good, and the good that the seller delivered was not sufficiently the same as the one bargained for, rather than forcing the entire transaction to be voided, with the good to be returned to the seller and the money to the buyer, the court could instead maintain the transaction by simply ordering the seller to compensate the buyer for the difference in value of the goods.

Also, even in a case of exploitative pricing, American courts can achieve a similar just result as the German courts could in invalidating a contract by invoking the doctrine of unconscionability. In such case the courts could declare the contract void, and the transaction would be reset, with the money returned to the buyer and the good to the seller - the same result that German courts would also be able to achieve through the aid of their many statutes.

It may be true that a German statute addressing exploitative pricing, for instance, is much more precise than the fuzzy common law doctrines on unconscionability. In theory, this might mean that German contractual disputes would have more predictable results. But on the other hand, by not being beholden to strictly articulated rules, American courts may have more flexibility in achieving just results.

Still, neither system is so completely foreign to the other. Though each jurisdiction may structure its system in its own way, with its own internal balance, in the end the underlying ability to contract exists equally in both places. While there surely remain differences between how German and American contract disputes might be resolved, I would suspect they would be found mostly along the edges - the fringe cases. In terms of the basic results, however, they are likely much the same.

Law.com relates the story of what appears to me to be an unjust conviction.

A man at a homeless shelter began to have a psychotic episode, "exhibiting bizarre psychotic behavior as he repetitively rocked and chanted the words to himself" and spoke into his walkman. As staff members approached him he then became "increasingly agitated and animated, until he was screaming and yelling at the top of his lungs that he hated white people and wanted to cut their heads off." Such behavior got him kicked out of the shelter and involuntarily committed, but that's not the problem. The problem was that as soon as he was released from the psychiatric hospital the Secret Service arrested him for making death threats against the family of a former president. It seems that during his psychotic episode he kept saying, "I'm gonna put two bullets into her, gonna put two bullets into Hillary Clinton."

The judge, U.S. District Judge R. Barclay Surrick of the Eastern District of Pennsylvania, in a jury-less trial, convicted him. "We are satisfied that the statements made by defendant that he was going to shoot Senator Clinton were true threats," Surrick wrote.

Surrick based his verdict on the fact that these were the words that were spoken, and that people in the shelter clearly were concerned he might be a danger. Notice that they kicked him out, the judge wrote. "They did not want to allow someone who was talking about shooting Hillary Clinton and killing white people to remain at the shelter overnight. They were afraid that he might lose control."

But that does not mean that they thought that he had the specific intent to kill Clinton. It just means they thought he might lose control and be a danger to people in the shelter. Which seems reasonable, given the irrationality of his outbursts.

But because the literal form of those outbursts focused on a family member of a former president, the judge conflated them with the general concern for his behavior and found him guilty of the crime charged. The law required only that the government prove that "a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm."

The evidence does not show that the staff thought he had a specific intent to cause bodily harm to anyone, however, much less Clinton. The evidence simply shows that the staff found him to be a man out of control, and thus a general danger as someone behaving irrationally. It was therefore wrong for the judge to substitute the general fear of his psychosis as a measure of his specific intent to cause harm. If he had been in enough control of his faculties to be able to form intent, he also would have been in enough control not to have had the outburst in the first place and get himself kicked out of the shelter. Because he lacked the control for the latter, it should be impossible as a matter of law to find the former.

(The article indicates that Assistant Federal Defender Elizabeth T. Hey made this argument, which the judge then rebuffed. I hope she's able to appeal.)

The other day a German classmate was yanking his laptop plug out of the outlet by the cord. I was sitting near the outlet so I mockingly complained that he was liable to smack me in the face with the plug when it finally ripped out.

"Oh yeah," he said, "I should be careful around you. You're American. You would sue."

"Right," I said. "All I've got to do is figure out how to get you into an American court, and you'd be toast."

Well, conflict of laws aside (which would explain how I might be able to get him to an American court, should the need arise for me to actually sue him...), I got to thinking about whether I'd be able to sue him in Germany, should I become injured from his negligent plug-pulling. The question is not academic: I'm going to be tested on it on Tuesday...

Tort law in Germany is not like it is in America, where it is a distinctive area of the law. Instead it is enabled through various statutes spread throughout the German civil code, although mostly in the area of the Law of Obligations, which is where contracts are also regulated.

One section that gives grounds for tortious liability is Sec. 823 BGB par. 1:

Anyone who intentionally or negligently injures life, body, health, freedom, ownership, or any other right of another in a manner contrary to law shall be obliged to compensate the other for the loss arising.

So there is an unlawfulness requirement - an invasion of one of those articulated legal interests, e.g., life, body, health, freedom, etc. - and a requirement for culpability, meaning that there had been either an intentional or negligent act. In my plug example, had it swung up and hit me in the face, the injury I would have suffered would likely have constituted an invasion of my body, and perhaps also my health. As for culpability, if he had an exculpatory justification for his action, he would likely be off the hook. Of course it's not likely that self-defense or necessity could have justified the yanking of the cord. He may have wanted to leave quickly, but he certainly didn't HAVE to... So while I wouldn't suspect that he was trying to injure me on purpose, his cord yanking was clearly negligent. A reasonable person would certainly have grabbed the plug close to the base of it, which he did not.

So there you go. It looks like I can sue him in Germany. And for my injury I can get the costs of curing it, and because it's a bodily injury, money also for pain and suffering. If it has horribly disfigured me and now prevented me from my otherwise gainful employment as a supermodel (stop laughing...), I might even be able to get money for impairment of earnings. However, unlike in the US, it would be paid to me in an annuity and not as one lump sum. Also, unlike in the US, I'd not be able to get any punitive damages. No triple amounts or anything to punish the wrongful plug-puller for his wrongful plug-pulling. Germany finds them offensive to public policy and would not enforce such an award even if I had managed to win it in the US.

There would be another possible avenue for suit in Germany, under Sec. 823 BGB par. 2, if his bad plug-pulling had violated a statute on plug-pulling written to protect people like me. There is a similar principal in American tort law, and like in American law the requirements for its applicability in Germany are fairly narrow. This statute could derive from any area of public or private law, including criminal law, but like all German law, it must very specifically delineate that this particular act is the kind of act it applies to. Furthermore the statute needs to have been written to forestall the kind of harm suffered. Thus, for instance, had there had been a plug-pulling statute designed to prevent outlets from shorting out, then even if his plug-pulling had been forbidden by the statute it would still not enable me to recover for my bodily injury, since that was not the kind of harm the statute tried to prevent.

And there is yet another avenue for liability in Germany under Sec. 826 BGB par. 3, which says that a person is liable if he "intentionally causes harm to another in a way which offends contra bonos mores." This section addresses behavior so shocking and offensive that no resulting harm could possibly be given a free pass. If the person intended to cause harm, or should have known harm might result, he'd be liable for it. However, I don't think the plug-pulling necessarily would be covered by this section. It just doesn't seem all that egregious.

But one other feature of German tort law, a logical extension of the fact that tort law lives in German law so close to contract law, is that courts can often construe contractual duties between a tortfeasor and an injured party. This construal is aided by the fact that there is no doctrine of consideration in German contract law, which means that contract law can function as sort of a gap-filler when the tort statutes don't seem to be providing redress to an injury on their own.

Still, I don't think such a construct is going to help me here. A court would have to go to great lengths to find a contractual link between me and my classmate. This practice of finding contractual liability is more useful when there's a question of vicarious liability. German law tends to allow for it only in very limited circumstances. It first requires that the party who caused the injury actually be the defendant's servant. Moreover, the term "servant" has a specific definition, being limited to only those under the defendant's supervision or control. (Or, as in the case of professionals, to those who are part of the defendant's organization.) Then the harm needed to have been caused during the course of the servant doing his assigned task. There's some leeway on this requirement: it doesn't mean that the servant had to have been directly told to do the specific action, but if it was part of the servant's ordinary duties then it would count.

Still, the same action may not subject a master defendant to liability if the servant performed the task on his own accord and not as part of his job. The master defendant also has the ability to defend himself by showing that it took proper care in selecting, training, and supervising the servant. This is where the courts' ability to construe a contract helps plaintiffs, because as long as the defendant still somehow owed the plaintiff a duty, then it doesn't matter how much care he took if the resulting injury still essentially constituted a breach of that contractual duty.

Of course, this legal construct will not help my claim for the plug-pulling injury. My classmate was not anyone's servant, nor were we otherwise contractually involved. What a shame.

But I guess that's ok. Disaster was averted and it turns out the plug was pulled out without causing serious bodily injury to anyone after all.

Now, about that modeling career...

I wrote the following for my ADR class:

In thinking about the merits of alternative dispute resolution, I'm reminded of my own experience with it, an experience which exemplified some of the plusses and minuses of these extra-judicial conflict resolution techniques.

I used to have an apartment in a rent-controlled jurisdiction. This meant that the city created a local rent board to set the maximum rent and enforce a few other related housing rules. Its enforcement mechanism was a quasi-judicial system of petitions and hearings. However, it could only adjudicate a narrow set of issues, and its enforcement powers were weak. For instance, even though perjury was illegal during the proceedings, the rent board had no ability to punish those who committed it.

At some point I found myself embroiled in some proceedings before it. My landlord had been collecting much more than the maximum allowable rent, and the building was out of compliance with the city's habitability laws. When he petitioned the city rent board to raise my rent, I counter-petitioned for a refund of the overcharged amount and compensation for the other defects.

Initially I lost the case. The hearing examiner ignored several issues that were raised and incorrectly assessed several others. So I appealed and won a re-hearing. But before the second hearing began, before our testimony and arguments would be placed on the record, the hearing examiner suggested we begin with a settlement conference.

While I think it is normal rent board procedure to attempt a settlement conference before beginning formal proceedings, the practice is not a panacea. Rather it demonstrates some of the reasons why over-reliance on alternative dispute resolution techniques may not always have the desired positive effects its advocates might intend.

For one thing, the incentive to remove disputes from ordinary judicial fora may blind those who would order such removal from fairly evaluating whether these other mechanisms are really appropriate for the matter at hand. For instance, a judge who orders some sort of ADR may really be motivated by the desire to clear his docket more than he is by his interest in the just resolution of the case. While perhaps this suspicion may seem cynical, it certainly seemed warranted in my rent board case. The hearing examiner, having already been rebuked for her poor handling of the case earlier, was visibly eager to get it out of her hands as soon as possible. And if she didn't have to take testimony or render a decision, then ADR was a perfect solution.

But instances where it is not a perfect solution are cases just like these: when there are bad actors in the dispute. I mentioned before the perjury problem: my landlord committed it several times during the course of the matter. And that's just one tangible example of his bad behavior. The very fact that I had any claim against him in the first place was due to his deliberate indifference to my rights as a tenant and his obligations as a landlord. Yet the recommendation that we undertake a settlement process seemed to incorporate the belief that he would somehow change his spots and suddenly begin to deal with me fairly, just because we were in the context of an ADR settlement proceeding. Given the circumstances, such a belief hardly seemed plausible.

None of this goes to say that there is never a call for some sort of ADR. But it's not a one-size-fits-all solution. It seems most appropriate when there's actually an issue in dispute and the settlement would be of the issue, as opposed to adjudication of a claim of injury.

The issue-claim distinction may seem like a small semantic difference, and indeed in some cases it may be hard to identify a dispute as either issue-based or claim-based. What I mean generally is that with an issue-based case where there is a problem to solve -- like the division of property -- and divergent interests about how best to go about it. In those instances ADR may be appropriate because it can accommodate both parties' interests without forcing them to compete against each other in the winner-take-all environment litigation would be. However, in a claim-based case like mine, where one party has been wronged by the other and suffered an actual injury, ADR is not appropriate.

There are a few big reasons why it's inappropriate: one, because while ADR can permit compensation, it cannot facilitate punishment. It would be illegitimate for ADR to even try to do so, as punishment can only be meted out by the societal organs (e.g., the court system) empowered to do so. Private mediators should not be able to dole out fines or jail terms, nor should we want them to. Even damages, which arbitrators and mediators can award in some proceedings, are more designed to be compensatory, rather than punitive. But what about enforcement of external rules and laws, like rules about perjury, which help protect the dispute resolution process? These private arbiters are not endowed with the power to uphold them, but if they don’t, then who will?

Which leads to another big reason why ADR tends to be inappropriate in these claim-based situations: because the disparate power that caused the injury will likely remain similarly disparate throughout the ADR process. Now, perhaps certain types of ADR, like where the arbiter retains a pseudo-judicial role, with binding judgments and procedural authority, can temper those problems. But then even assuming the victimized party's interests can be sufficiently protected -- which is a big "if," since it might take a big stick, bigger than most arbiters have, to keep a powerful party in check -- the public's interest may not be. In my case, the landlord owned many buildings in the city, each building had many tenants, and it was clear that someday there would be different tenants in my apartment too. It was very likely that there were or would be many other people with an interest in a public record of the dispute. But the off-the-record nature of the settlement conference kept much of it from ever really becoming public knowledge.

Which can be a problem. I'd heard, for instance, allegations that my landlord had a pattern of evicting people under false pretenses. If each of these cases for wrongful eviction brought by each of these tenants were settled privately, there would be no record for any subsequently wronged tenants to see in order to discover that there had been a pattern of misbehavior, which could then help buttress their own cases. Their cases would therefore suffer, and the lack of any public awareness of the larger problem would also preclude a more systemic, institutional response to the illegality.

Meanwhile, especially in ADR processes where the mediator is more passive -- or potentially not present at all, as in the case of negotiation -- the power-vacuum can leave one party very vulnerable. In my case the hearing examiner-turned-mediator herself appeared extremely intimidated by the landlord. The distinct aura she exuded of wanting to have this over with as soon as possible added a particular pressure to the situation -- and left me to fend for myself. Clearly, a successful dispute resolution process would require an able and unbiased mediator, but even so, there still might remain too great an unchecked imbalance of power between the parties to be able to achieve a just resolution overall.

A judge-led court proceeding, on the other hand, would mitigate all these problems by providing additional procedural protections, like evidentiary rules. Certainly such rules can become cumbersome at times -- particularly in situations where the court is trying to resolve an issue-based dispute and not a claim-based one -- but they do generally serve a purpose of making sure that there is fairness and transparency in the process. Granted in my situation, since the official hearing was only quasi-judicial, I didn't necessarily have all these protections available to me anyway (remember that perjury was unpunishable by the rent board, and there were no rules about the admissibility of evidence) but at least within the context of the formal hearing I did have an avenue for appeal, and, failing that, access to the courts themselves if the rent board was unable to render a just result. With ADR these procedural protections may often not be available, which is particularly problematic when there are bad actors and power disparities.

Because you'd have to wonder why a party with the upper hand and no compunction about causing injury would have any incentive to settle at all. Or at least settle fairly. Unless, of course, there's the prospect that, failing settlement, the conventional dispute resolution process would still remain available to the weaker party.

And I think that's what happened in my case, because the landlord suddenly offered me a sizeable cash settlement on the spot. Given that it represented an amount to close to what I'd be lucky to ever see, and not until potentially months later when the examiner finally made her decision (hopefully correctly this time), it was a good deal. I accepted it, along with a few stipulations I was able to insist upon, including those bearing on how our settlement would benefit subsequent tenants, by threatening not to accept any settlement at all and instead demand a full hearing. Conversely, the landlord conditioned the settlement on full waiver of my claim. Which was fine with me, because what I sought was not only the money but closure on the matter.

But because I'd hung on so long, through a bad decision and an appeal, and was clearly willing to keep going, I think the landlord decided it was in his interest to get this taken care of too. Still, I don't believe he would have reached that conclusion had I not had the official process to fall back on.

So maybe it's true that ADR worked in this situation, but it did not work in a vacuum.

Edited slightly 5/28/08.

Eugene Volokh posted an excerpt of an article about Vermont judge Edward Cashman as evidence that giving judges discretion in sentencing leads to "unjust" results.

The article in question:

"Wednesday [Vermont trial court Judge Edward Cashman] sentenced child rapist Mark Hulett to 60 days in jail. Hulett admitted he raped a little girl countless times when she was between 7 and 10 years old.

Prosecutors said Hulett deserved at least 8 years in prison in part as punishment.

But Judge Cashman said the 60-day sentence guaranteed that Hulett would get into sex offender rehabilitation quickly or face a possible life sentence. He said he had no choice because the Corrections Department classified Hulett as a low risk offender meaning he can't get treatment until he's out of jail.

And more importantly the judge announced that after 25 years on the bench, he no longer believes in punishment. . . ."

I disagreed that this exemplified a shortcoming with allowing judges sentencing discretion:

"I don't see that the judge had anything to do with any manifest unfairness in the situation.

'He said he had no choice because the Corrections Department classified Hulett as a low risk offender meaning he can't get treatment until he's out of jail.'

Talk about a sentencing guideline! Holding any rehabilitation hostage to punishment. If we want to talk about injustice, rules like these epitomize it. It's good that the judge had some discretion to attempt to mitigate it. If there are weaknesses with the outcome, it's because the judge didn't have enough."

Initial commenters have railed against the judge. (The article also mentioned that state Republicans were looking to recall him as a result.) I took issue with them too:

"Furthermore, this [sentence from the article]:

'And more importantly the judge announced that after 25 years on the bench, he no longer believes in punishment. . . .'

is a spurious paraphrase. Before we rush to judge the judge, we should know *exactly* what he said and why. I would bet that it was an opinion along the lines that punishment for punishment's sake is an ineffective way of dealing with crime, an extremely reasonable opinion many others have articulated and one that he may likely have formed himself through all his years of judicial experience."

Yes, I think the punitive aspect of the sentence should have been stiffer. But I don't believe that rehabilitation should be subordinate to punishment, and since the judge appears to hold the same view, this seems to have been the best he could do with the sentence given the confines he was forced to contend with.

Edit. There are several good comments on the site (and a surprising number of unsophisticated ones), but this one comes up with some additional information that supports my gut feeling that the original article did not support the point that Volokh asserted it did.

The New York Times recently ran an article about how murder rates are increasing in smaller US cities. The usual culprits of gangs and drugs are not cited as being at the root of this increase in violence. Rather, many of these murders tend to be perpetrated by acquaintances when ordinary disputes between them arise.

It's an unfortunate trend, and one that likely has several causes, each of which exacerbates the other. The article mentions the proliferation of guns as being one of them. Guns, they say, are easier to come by, so more people have them. However, their general availability does not address the apparent inclination people seem to have to use them in order to resolve their disputes.

The article indicates that the population most associated with this trend is that of young blacks with criminal records. Given that young blacks typically have vastly higher rates of incarceration than other populations, one could infer that young blacks have some sort of innate predisposition to violence. But I think this inference is incorrect. Rather, the higher rate of incarceration reflects a cause of the violence, rather than an effect of it.

An important thing to recognize is that incarceration rates are largely affected by many factors endemic to poorer, more marginalized people. Whether it is the very definition of crime itself, which inherently captures more behaviors of certain people (like the stiffer criminalization of crack cocaine, a drug more common among blacks, than powder cocaine, a drug more common among whites), inadequate access to quality representation during criminal proceedings (generally of less concern to wealthier people), or simply the lack of education and employment opportunities that can encourage people to make better choices, factors such as these go far to explain why more young blacks end up in prison than whites.

The effect of this disparity ultimately affects their communities in two significant ways: firstly, by having so many people in the community who have experienced the harsher quid-pro-quo of life in prison, where the ability and willingness to stand up for yourself may be a necessary survival mechanism, this culture may persist outside the prison walls, and, secondly, it results in many people feeling alienated from the court system.

It's this alienation that I think it most responsible for these violent trends. The court system exists as a way to defuse conflict, without requiring the parties to resort to more violent means to do it. If someone does you wrong, you don't take matters into your own hands: you sue them. Towards this end we have entire bodies of law devoted to defining when a wrong has occurred and providing redress when one has.

Naturally there can be problems when people become too litigious. The courts are not appropriate for all forms of conflict resolution. But it is still better to have some sort of institutional approach to diffusing tension than to leave the parties with nothing but their own forms of vigilante justice to create their own remedies.

Of course, even in the absence of institutional dispute resolution, a good old fistfight might suffice. Killings may still be a disproportionate response. But then again, it is a matter of culture to determine what is a proportionate response. And though American hegemony no longer considers killing to be appropriate, it has in the past. Just see the example of Alexander Hamilton and Aaron Burr, when, during their time, it was considered acceptable for the former vice president of the United States to engage in a lethal duel.

That these kinds of duels have become unacceptable is because they've similarly become unnecessary since, with the rise of American jurisprudence, other, effective (and less lethal) means for solving conflicts have become available.

The problem is, in these more marginalized populations, these other means for resolving conflicts are not available as any sort of practical alternative. In fact, they may realistically not be seen as any alternative at all. First of all, for people who ended up in jail the last time they saw the inside of a court room, judicial proceedings may have little legitimacy to them. And even if they were seen as legitimate, they are likely not seen as an accessible avenue for resolving a dispute.

The fact of the matter is that it takes a lot of resources to be able to use the court system. Not just financial, but also informational. Yet this population is not one known for being flush with either. Even assuming that basic literacy were not a barrier - which is a big "if" given the quality of the education available to them - laws and legal procedures are so cryptic as to require specialists to navigate them. Specialists - lawyers - whose services are extremely, often impossibly, expensive to obtain.

The effect of all these informational and financial barriers is that the court system is likely not perceived as an available alternative for solving conflicts. So in the absence of this better alternative, people will take matters into their own hands. With apparently deadly consequences.

We - the rest of society - could react by lambasting these people, throwing up our hands in unempathetic exasperation, either leaving them to wipe themselves out or reaching into their communities to prosecute them further. But none of these measures will actually solve the problem because it doesn't address the systemic realities that cause this kind of violence to happen in the first place.

A better solution - an actual solution - would be to make sure that there are more productive means of conflict resolution available within these communities. One possible way to achieve this end could be to have community dispute resolution boards, where juries made up of people in the community could sit in review of disputes to determine some remedy. These boards would only need to be as formal as necessary to grant them some authority and cohesive structure. What's most important is that they be seen as legitimate by the people whose issues they will adjudicate, and that they be easily accessible to these people - something that the existing court system is not.

Obviously these boards would need to work consistently with state laws. They couldn't, for instance, reach results that departed from existing law or denied due process. But just as the court system tolerates and works with other systems of alternative dispute resolution like mediation and arbitration, so it should be able to work with these sorts of community-based ADR systems and provide a realistic alternative dispute resolution system to the one being used now: guns.

Edit 2/26: I haven't had a chance to read it yet, but in a related vein, here's a paper that addresses incarceration rates and their consequences on the community: Reciprocal Effects of Crime and Incarceration in New York City Neighborhoods.

Several news sources are reporting about a lawsuit brought by the family of a dead man, claiming that a sheriff prevented a man from performing CPR on him. The lawsuit apparently alleges, though the sheriff denies it, that he pulled the CPR-performing friend from the victim, telling him that because the victim was gay the rescuer would get AIDS.

There is no dispute that the man was in fact gay. There also appears to be no dispute that he was not actually HIV positive. There is a dispute, however, on whether the sheriff actually prevented CPR from being performed, and if so, why.

It's not hard to believe that there isn't homophobic ignorance out there. It is unfortunately not implausible to believe that something like what is alleged here could have happened, abhorrent as it may be.

But the article in the New York Times makes me question whether the situation unfolded as alleged. Several facts that appear in this article (though not the CNN/AP one) stand out in particular:

Billy Snead was furiously trying to save the life of a friend having a heart attack on a West Virginia roadside in June when the police chief arrived. The chief, Mr. Snead recalled yesterday, ordered him to stop. The chief, Robert K. Bowman of the small town of Welch, told Mr. Snead that his friend, red-faced and gasping for breath, had the virus that causes AIDS, according to a lawsuit filed yesterday. Chief Bowman grabbed Mr. Snead's shoulder, the suit says, pulling him away from his friend, Claude Green Jr. Mr. Snead resisted, saying he was having success. Trained in cardiopulmonary resuscitation, Mr. Snead tried to continue pressing and then pounding on Mr. Green's chest.

"Every time I'd do it, he'd take a breath," Mr. Snead said of Mr. Green yesterday. (Emphasis added)

The point of CPR is to provide oxygen to the body and then circulate it. A person who is breathing can to that on their own: their lungs automatically take in oxygen, and their beating heart moves oxygenated blood around the body. You therefore only do CPR when the heart is not beating, in order to replace its critical function. Sometimes a person may not be breathing but will still have a heartbeat (in which case you would do rescue breathing, to give the body oxygen, but never CPR since the heart can move the oxygen around on its own). However, you will never see someone breathing with no heartbeat. So if Mr. Green was breathing during all this, as the article quoting Mr. Snead suggests, CPR was inappropriate. In fact, it may have been appropriate for the sheriff to prevent Mr. Snead from doing it and potentially killing his friend.

There's also another paragraph that doesn't make sense either:

Mr. Snead was a passenger in Mr. Green's truck in the early afternoon on June 21, 2005, when Mr. Green stiffened, turned red and veered off the road. Mr. Snead ran to the driver's side, checked Mr. Green's mouth for obstructions and performed chest compressions.

Let's play this out. Mr. Snead and Mr. Green were in a truck. Mr. Green "stiffened, turned red, and veered off the road." What happened? Did he have a heart attack, or was he just choking? The fact that Mr. Snead checked Mr. Green's mouth for obstructions seems to imply that Mr. Green was choking. But if that's the case, why the chest compressions?

When a person chokes, they are conscious for a while. Their heart is still beating, circulating what's left of the oxygen that had previously entered the body. Eventually the person will pass out from lack of oxygen, but usually not for several minutes. The correct course of action is what's commonly known as the Heimlich Maneuver. The rescuer will put his arms around the still upright and conscious victim, clasp his hands into a fist, and then thrust upward against the diaphragm to create a burst of air that can eject the obstruction. There is no call to do anything else with regards to the chest or abdomen. But even if the person were to lose consciousness, the rescuer would simply do abdominal thrusts on the belly, pushing up against the diaphragm, and not chest compressions which work on the sternum to stimulate the heart.

The thing is, Mr. Snead was in the car when whatever happened happened, and as such should have known exactly which it was. Either he saw Mr. Green choke on something, or Mr. Green collapsed into unconsciousness immediately, which might suggest a heart attack. Still, if it was the latter, Mr. Snead's first course of action should have been to check for breathing and circulation. If there was none of either he should then proceed to CPR. However, given his own assertions that Mr. Green was taking breaths, it does not seem likely that CPR was called for. But even if it was, there still doesn't seem to be any reason to check the mouth for obstructions. A person who immediately has a heart attack without any signs of choking most likely does not have a blocked airway. If the breaths that go along with CPR don't go into the lungs it's usually just because the rescuer needs to reposition the victim's head to make sure the tongue is out of the way. It is not appropriate to put one's finger in the victim's mouth to fix this. The only thing that the rescuer needs to do is retilt the head.

Ultimately this case will hinge on the actual facts and as they are alleged in the complaint. But if the way they are reflected in the Times article is essentially how they actually happened, it would not appear that the sheriff in fact did anything wrong - or at least nothing that would have contributed to Mr. Green's death. In fact it suggests inappropriate care on the part of Mr. Snead.

Eugene Volokh posted a link to an article describing a hit and run in North Carolina. According to the article, a man deliberately ran down people, allegedly in protest of treatment of Muslims around the world.

First, read the article, because my one sentence summary will not suffice for purposes of the discussion.

Volokh asserted, "[t]hose who think hate crimes are a separate and important category should agree that this does indeed fall into that category." (Emphasis mine.)

While I do tend to think there can be a category of crime called hate crimes, I didn't think this was necessarily one of them. I commented:

I disagree that it necessarily falls into that category.

Where's the line between hate crime and a crime committed because of mental illness? Crimes of the latter type can often appear to be of the former - even to the perpetrator him or herself - but are really caused by the mental imbalance of the culprit and not some rationally-formed intent to act against hated people.

The article said they would be looking into psychological reasons for the crime, and it strikes me that there's something there. Even as hate crimes go it doesn't seem to really bear the hallmarks of rationally-planned ones. The targets were random, the means were imprecise... It seems like a crime caused by someone who lacked the personal mental capacity to deal with his own anger except by warping it into this context. And not, by contrast, the deliberate crime of someone whose consciously-chosen political orientation incorporates the position that taking violent action against certain people is an appropriate articulation of that opinion.

Granted this might be a fine line, and I'm not a psychologist so I can't define where it would be any better, but from what I have gathered it does strike me that someone with this expertise might well be able to draw one.

So far no one has addressed this issue; the other commenters are focusing on whether a hate crime could exist at all. I'm not quite satisfied with my own articulation of what might constitute an actual hate crime, but I am thinking about things along the lines of Klan cross-burnings, beatings outside gay bars, etc. Not that every crime that has these physical dimensions fits the definition of "hate crime," but with the right mens rea (intent) they could be.

My larger concern is that a person with a mental illness cannot form sufficient mens rea for a hate crime, however we define them to be. Moreover, I think criminal jurisprudence often runs roughshod over issues of mental illness to everyone's detriment (society's and the accused's).

Therefore, before we simply rush to label an action as "bad," however bad we wish to label it, we should have a better understanding of what precipitated it. Only by doing that can we have any idea what a just consequence should be.

Every so often I get these packets in the mail about class action settlements for which I may be a member of the class. I've mostly blown them off, mostly because the amount I'd gain by pursuing the settlement did not outweigh the amount of effort it was going to take to figure out if and how to pursue it.

But I recently got another one - a notice of a revised settlement. Remember this? When I switched my cell phone from ATT Wireless to Verizon? Well, even though I cancelled in the middle of a billing cycle, ATTWS (the fools!) charged me for a month of service. And now they're going to have to pay. They're going to have to pay me... $12. (If the settlement goes through, of course.)

The original settlement seemed to have been for a calling card, but in the new packet they said I could either keep the card (for 100 minutes, to be valid if and when the settlement is approved), or, if I wanted cash, I could certify that I was a member of the class and send it back in with the calling card. Well, a calling card is pretty useless to me (I have a cell phone, duh) but cash I can always use... so I decided to pursue the offer for a change.

But I didn't want to do that if I wasn't sure if I was a member of the class, and for a while I thought I'd have no way to prove it one way or another since it's been nearly two years since I dumped them. But then, lo and behold, in round #4087 of Cleaning My Room, I found where I'd stashed away my old ATTWS billing statements. And there was one there clearly showing, in black and white, how they were charging me for a month of service despite me being in "cancelled" status.

So armed with that knowledge, I've just sent off the form. Assuming everything proceeds as planned, I should see my check in, oh, say, August...

Overheard on a commercial:

"I can't be a Realtor unless I complete ethics training."

And I can't be a lawyer without completing ethics training either. Which of course explains why people have such warm, fuzzy feelings about lawyers…

But with Realtors, it's completely different, right?

Edit: Let's dig into this deeper. What annoyed me about the commercial is the insinuation that all Realtors are ethical simply because they all had to take an ethics class. No need to worry about your Realtor cheating you - he took a class!

Now, I don't discount that some sort of ethics training is better than no ethics training, but I still think the commercial is trying to oversell the benefit. A trained Realtor may not be any more ethical in his dealings than a run-of-the mill real estate agent. (I presume that's who the commercial was trying to differentiate Realtors from.)

But to the extent that this messaging is effective (does it inspire confidence in the consumer?), should lawyers be using it too? After all, all new lawyers have had to take ethical training of some sort. Would people be more inclined to trust us, if they knew that? Should they?

Apparently that's a particular "reasonable person" standard used in UK trademark caselaw.

From the Trademark Blog:

In Morning Star Cooperative Society v Express Newspapers Ltd, 1979, the Court noted that only a moron in a hurry would confuse plaintiffs and defendant's products.

But why limit the standard to just trademark cases? Certainly it has utility in other applications...

Ever since the Supreme Court ruled on Kelo v. City of New London, lots of people have been up in arms about the case's implications. Roughly speaking, the case is about the government's ability to make takings: seizing property to do other things with it. Lots of people were aghast at the decision because it allowed for people's houses to be taken, and then for the property to be given over to a private developer. No one reacts well to the idea of the government being able to take people's houses, and when compounded by what seemed a reverse Robin Hood quality to this particular taking (giving a homeowner's property to a developer), lots of people got really upset.

But I wondered if perhaps in the long run it is better to have this outcome than one in the reverse. I thought about commenting along these lines, but held off because I hadn't had the occasion to study the decision and analyze its ins and outs. I still haven't, but that didn't stop me from finally articulating those thoughts... Ilya Somin at the Volokh Conspiracy posted a summary of a paper he's written that says that Kelo may work to the detriment of environmental interests, particularly in that private land set aside for conservation can now be seized for development as well as houses. Some commenters have questioned whether such takings would really be possible under the Kelo decision, but even assuming that they are, I still questioned whether environmentalism was still not better advanced by this ruling:

... it seems to me there needs to be some differentiation in how "environmentalism" is best achieved. Certainly it's advanced through the existence of preserves, but it's also advanced by sensible urban development. The fact of the matter is that metropolitan areas have been built-up in very inefficient (and thus environmentally destructive) ways. It strikes me that Kelo could allow cities to sort of start over and redevelop into a more sustainable form. I am of course sensitive to the problems of kicking out current residents - I wouldn't therefore promote the wholesale bulldozing of neighborhoods. But when properly planned for and compensated, I wouldn't want a city NOT to be able to achieve this kind of end - an end that strikes me as ultimately better for the environment than the current status quo.

I'm thinking of things along the line of building urban villages and transit hubs. Laying out cities in such a way that residents are less dependent on cars, use less land for building, consume less water for landscaping, etc.

I suppose like anything else the devil is in the details. Perhaps that end could be achieved better than Kelo laid out. But broadly speaking, if Kelo can help facilitate this kind of end, I tend to think that's good.

A lot of people are up in arms lately about net neutrality. As they should be, because it breaks the Internet when individual nodes can handicap (or refuse to deliver outright) certain content simply because they don't like that content.

But the fuss seems to be focused on the Barton Bill, an act that adjusts cable regulation and makes it regulated more like DSL currently is. The two have been regulated differently up to now because they evolved out of different technologies and their own regulatory paradigms. After all, cable regulation used to be all about tv, and DSL regulation was all about the phone. But now that they can both provide broadband internet - as well as telephony and video - it seems reasonable to break down the regulatory barriers that keep them from being equal competitors.

The problem is that the way this equality is being achieved is to change cable regulation to look more like DSL. Which would be ok, except that the DSL model is bad, and bad in a way that negatively affects network neutrality. So there could be criticism against the Barton Bill because it gives cable (roughly) the same model - a model that isn't good. On the other hand, it's not that the previous cable regulatory model was all that great. And it's not like the change really makes anything worse. On the contrary, it could be an effective first step towards a more intelligent model because it can help overcome the conceptual barrier of dealing with information technologies as information technologies and not being so hung up in worrying about their specific technical form.

Edit: See further comments on the wisdom (or lack thereof) of railing against the Barton Bill here.

I got a proxy in the mail today because I own a bit of stock in NetIQ. It's only a handful of shares, tucked away in an IRA, that I purchased since I'd once worked for them.

Anyway, I mention this not to focus on my personal investment strategies, but because it brings some of what I'd learned in Corporations class home in a personal way. Basically, this proxy is calling for a vote by the shareholders on whether there should be a merger. Reading more closely, however, I see that it's not a convention big-fish-swallowing-little-fish merger, which would leave us holding stock in the big corporation, but rather a merger with a holding company that would buy all the outstanding shares for cash. Which, it would seem, would convert NetIQ from a public company to a private one.

I have no experience with this kind of thing. (Who am I kidding - until I took the class, I never even opened my proxy statements since I'd have no idea what was going on or why I should care.) So one question I have is whether a "merger" with a holding company is a typical way of taking a company private. If so, then I can evaluate whether I think that's a) a good idea, and b) done at a fair value for me. But if it's not, the whole scenario is troubling. Especially because the terms of this deal include preventing the board from seeking a better offer (though they can entertain one if one falls in their lap), and because the "premium" offered is not that much above where the stock is today.

Even if there is nothing unseemly, however, I'm not sure I'd want to go along with this plan. While I think there can be certain efficiencies involved in running a company when it doesn't have to worry about shareholders' interests, as a current shareholder who would no longer continue to be following this deal, that's probably of little interest to me (except to the extent that it could allow for it to be a larger or more stable employer for my friends and colleagues from the area, which is not an insignificant concern).

Plus, I'm not sure it looks out for my personal economic interests. The fact of the matter is that I've probably lost some money on the stock, having bought it during the waning days of the boom. But that's ok, it's just sitting in a retirement account. The company always seemed solvent enough to wait out an eventual rise back up. Plus because it's in an IRA it means my investment horizon is long enough to not be in any rush to cash out, nor is there any advantage for me to take a tax loss. But if this deal goes through, it will result in me cashing out. Game over, with no further chance to recover my investment. It therefore forces my investment to change from a long-term one to a short-term one, yet I don't think that's in my financial interest.

So I don't know - I suppose the company could be doing this because it is in some trouble, so maybe it is better to get out now. But that's not really what I want. What I want is for the company to make good products and good decisions, and for me to go along for the ride.

I've been thinking about something that one of my German professors said about how German criminal law functioned. Germany, as a civil law country, has a very deep and very detailed body of statutory law. Every crime, every element of every possible chargeable crime, is enumerated in some statute. No one can ever be convicted of any crime that is not so explicitly spelled out. There is no room in German criminal law for any sort of interpretation of these statutes - either they clearly articulated that the charged behavior was illegal, or it was not illegal. Any other result would be unconstitutional.

This is unlike the United States, the professor said, where under common law people can be convicted under general terms, even when there's no law specifically against their behavior.

I think he may have been overstating the case. The picture he paints is that in the United States we have but a few large buckets of crimes that we can always find some excuse to dump particular actions into. (For instance, was it murder? Well it could be murder if we interpreted what happened in this way... So there you go, it gets dumped into the murder bucket.) However, in actuality many jurisdictions have much more specific statutes that do delineate crimes with more detail. The US is not nearly the wild west of vague common law criminality that he seemed to think it was.

On the other hand, even under statutes there's a lot more room for interpretation than in Germany. Vagueness is much more tolerated in the American system of jurisprudence, not just by the lawyers trained to manipulate the ambiguity in a way that best advocates their position, but even the public at large, who understands the concept of crime even if it doesn't always understand the law governing it, as it tries to find some sort of legal consequence to drape around its notions of right and wrong.

In this vein, I was reflecting on the Enron trial. Many business law theorists are reflecting on the Enron trial and struggling with the result - Ken Lay and Jeff Skilling's guilty verdicts - because it looks to them as though the behavior that effectively became criminalized (through the jury verdict) under the actual law may not have clearly been delineated as criminal.

Such a result could be troubling, not only because it could chill the necessary and reasonable behavior of other executives who might not be able to effectively steer their companies without fear of prosecution, but also because in a larger sense it violates our notions of justice and fair play if people can get into trouble for things they weren't fairly put on notice as being wrong because the system is able to make ad hoc post hoc decisions about their wrongfulness.

On the other hand, such flexibility is a pillar of the American system of justice. Whereas in Germany every single wrongful act must be anticipated, in the US that is not necessary. Our system inherently provides a broad framework for which a case-by-case analysis of the instant facts can determine where (if anywhere) the alleged criminal action may fall within it.

Still, there is tension within this system. In some ways it's capable of producing more justice; in other ways less. Examples where it can achieve more often lie with juries who are best able to suss out wrongfulness. With jury nullification they are able to take a behavior that, while technically illegal may not also have been wrongful, and thus exonerate it. So in theory juries may also be able to do the reverse and take an action that, while perhaps not strictly illegal, was wrongful enough to be deemed criminally culpable.

There is, of course, a limit to how cheered we should be about this possibility. It would be manifestly unfair and unjust if juries could convict simply because something seemed wrong - without any connection to any actual criminal law forbidding it. But to the extent that our criminal law, whether by common law or statute, is inherently flexible, as long as the ultimate result fits within the framework of criminality, perhaps it's not a bad thing for the jury to have discretion to find some way to put it there.

Their discretion is still limited, of course, through the general framework of criminal law and the rules of evidence governing what they might be able to consider in reaching their verdict. They are not supposed to go beyond what is presented to them. But do they? And if so, is it perhaps necessary?

Juries are always informed by something beyond the scope of the trial - their own life experience, for example. In the case of the Enron trial jury members later spoke of how their own professional requirements for taking responsibility affected how they saw the Enron executives' duties of responsibility. Yes, their conclusion was affected by information not gleaned through trial, but we expect that to happen with juries. That's why the concept of a "jury of peers" is so important, because we want people with equivalent experience to judge each other. (It's when they don't have equivalent experience that juries are in no position to judge whether a behavior was truly wrongful.)

The question with the Enron verdict therefore is to what extent the jury was informed by matters external to what was specifically presented at trial, and to what extent that extra-judicial information matters in whether the result was just. To answer the former question would require a culling of the evidence actually presented. I do, for instance, find it interesting that none of the commentators have mentioned FERC or the California blackouts. There is reason to suspect that Enron, as governed by Lay and Skilling, was behaving wrongfully - perhaps even illegally - with respect to market manipulations and undue influence with regulators, and that the heights from which Enron eventually tumbled may have all been wrongfully attained at the outset. So I don't know if evidence along these lines was considered during the trial. I also don't know if it should have been considered doing the trial. On the one hand, it may have had little to do with the specific crimes charged. On the other hand, if the trial was all about the fall, perhaps it would be relevant to have considered what had created the perch from which they fell in the first place.

This moves us to the second question then, of whether and to what extent it was just and fair for the jury to have filled in the blanks with their sense that something generally was wrong with Enron. Although it has happened before, probably lots of times, it is not considered fair for bad people to have finally been punished for things they didn't do, just because it was the only charge they couldn't actually come up with a defense against. We don't tolerate that kind of vengeance. Criminal law is not to be a weapon of blunt force trauma to finally nail a bad guy; it's a weapon requiring finessed application in order to only capture the portion of activity specifically deserving of punishment.

On the other hand, if, when presented with the evidence at trial, the jury was left with a sense that there was something very wrong with the whole situation, is it equally unjustly overreaching to allow that perception to color their final inquiry of whether the defendants were actually guilty of the crimes accused? Our system is an inherently flexible one - might this not be an occasion where it was of most use?

I was chatting with a friend in England whose father was a lawyer, and he was telling me how his dad once got a client off for running a stop sign. Seems the sign had been painted on the road, which is fine, except there had been some repaving that had partially obscured it. The law required that 90% of the sign be visible, but in this case only 86% of it was. His dad had measured...

"A 27-year-old woman was convicted of murder and sentenced to life in prison for leaving her newborn daughter in a Wal-Mart restroom last year," said the AP report about the Macon, GA trial. "The jury found [Amy] Shorter guilty of felony murder for causing the baby's death while committing first-degree cruelty to children."

There's little else in the article, although it does say that she left the baby in a restroom after giving birth - unexpectedly, since she didn't know she was pregnant - and then it died five days later. We are left to infer what action she actually took for which she was charged, but it seems reasonable to speculate that it may have simply been abandonment, or perhaps some sort of battery (although we are not given any specific information upon which to base that latter conclusion).

What's troubling about the situation though is that she was charged with felony murder for the death of the baby, as opposed to manslaughter or even murder itself. Regular murder generally requires an intent to cause a death. Felony murder is an equivalent murder charge in severity, but instead of requiring the intent to cause a particular death, it applies when there was intent to commit another felony that ended up resulting in that death. A typical example would be a bank robbery during which a bystander dies. The bank robber may not have intended to cause that death, but because he intended to commit the felony of bank robbery he is just as liable for the collateral death as if he had intended to cause it directly.

That's a much different situation than the case here. With the bank robbery example there is a separate criminal act apart from the act that specifically causes the death (e.g., a gun discharge). Here there is no separate criminal act. If the baby had died because she was robbing the Wal-Mart, the felony murder charge might have been appropriate, but here the only act in question was the one the woman took with respect to the baby. If the baby died as a result of her action she should be guilty of one of the bodily crimes, like murder. But if her action was not motivated by the requisite mens rea (intent) to qualify for murder, then she should not receive the punishment for murder. Now her actions might still have met the requirements for manslaughter (or similar crime as is defined in that jurisdiction), which is a lesser yet still serious charge. But in any case, the bodily injurious action she committed can only meet the legal culpability for one of the specific bodily crimes, and she should only receive a sentence commensurate with that level of charge.

The fact that she was not convicted of murder outright suggests that she was not deserving of such a charge. She may have deserved a manslaughter conviction of some sort, but that does not appear to be the charge the prosecutor sought. Rather, she did an end-run around the mens rea (intent) requirements of murder by treating her action as something much less severe than murder or manslaughter - charging her instead with "child cruelty" - and then, because it resulted in a death, using the fact that it was a felony to justify the felony murder charge.

This is an absurd result, because it treats a single action as if it were two, when it was only one and should have been judged as one. Either her action met the legal definition of murder or manslaughter, or it didn't. Felony murder is a legal tool to ensure that indifferent felons don't get away with the deaths that they cause through the commission of their other crimes. To use it instead to supplant the tiered system of bodily-crime charges in order to yield a sentence not otherwise deserved, as apparently was the case, seems manifestly unjust.

Edit: A slightly more detailed article. Which makes the felony murder conviction as a matter of law look even stranger. Then again, I don't know how Georgia criminal law is structured - does it not have a "manslaughter" or equivalent? Is "felony murder" the only way to punish such crimes that don't qualify for outright murder?

At the colloquium, as I was going back and forth with Professor Volokh about bloggers' privilege, something that Professor Barnett had said earlier during his presentation suddenly made a lot of sense to me. He had talked about, given his recent experience arguing the Raich case, how being an advocate involved a different sort of thinking than did being an academic. As I was (inadvertently) debating Professor Volokh the truth of the observation became apparent, because while Volokh was responding as a scholar I was flashing back to my moot court experience and doing everything I could mentally to advocate for there being a privilege for bloggers. While you might think you'd end up in the same place with both approaches, in reality you don't necessarily. As a scholar you can idealize the legal landscape and theorize how to better shape its contours. As an advocate, however, you must navigate the existing landscape to get to a specific result. If there's a conceptual mountain in the way, you have to find some way to get around it. Whereas as a scholar you are often the one creating (or at least mapping) the landscape and deciding where those mountains are or should be.

Still, it's not as though one approach is necessarily better than the other. As Professor Barnett pointed out to me later, there's value in having practiced both kinds of thinking and letting the experience of each inform the other to make you better at both.

Written 5/2. Edited and posted 7/9.

Via Overlawyered, news that the ADA lawsuit against Target for having a website inaccessible to the blind can continue. Judge Patel ruled that the ADA is not only limited to physical barriers, and can apply to websites.

For my earlier thoughts on web accessibility, see this post here.

Various law professor bloggers are discussing the idea that the legal academy should be comprised of people with expert knowledge from other disciplines. To Larry Ribstein's post I commented:

I think there are two issues here: one that it is good to at least have an *awareness* of a broad range of knowledge. Not a particular expertise necessarily; just enough to know whom to ask when disciplines overlap and enough to recognize when they do.

The other issue is that the study of law itself may require somewhat more expert knowledge of other disciplines. It's quite popular lately to promote economics as one of these; I think sociology is equally (if not more) important, and astonishingly under-represented in the legal academy today. As a former sociology student myself I found my earlier studies constantly informing my legal studies. But I was shocked, quite frankly, by how little those other lessons informed the greater discussion in law school. How can we effectively discuss the legal regulation of society when we don't bother to understand how society actually works?

Particularly with regard to that second paragraph, I think there is much more to be said on that point, and I expect to be saying it more and more going forward.

Over at Prawfsblawg Michael Dimono posted his frustration with an unprepared student. This led to a flurry of comments taking the student, Dimono, and law school in general to task. It's one of those situations where everyone's right and everyone's wrong all at the same time.

The biggest criticism of Dimono has been that his attitude towards the student (the post was entitled, "Disciplining the Lazy Student") is patronizing and paternalistic. (Well, there was that and the fact that some people thought it unseemly that he posted about a person in a way his peers would be able to recognize.) This, in turn, led to a discussion of the extent that law students are mature adults and able to make their own decisions about whether and how to prepare for and participate in a class. Which, in turn, led to a discussion about whether law students are "customers" and as such should have a lot of discretion over their education.

The strongest argument in favor of them being able to make those kinds of participatory decisions is that different people have different learning styles, and forcing everyone to learn in the same way will surely disadvantage those for whom its not optimum. The strongest argument against so much discretion is that a(n American) legal education, for better or for worse, is not about three years of absorbing a discrete amount of material. It's inherently, and apparently by design, an obtuse, indirect, mental-restructuring exercise, and one that the student would not be qualified to completely self-direct.

(Meanwhile, the stupidest argument raised that students aren't customers is that their education is publicly subsidized, either because they are at a public school or because their federal loans are technically subsidized. I'm sorry, but the average taxpayer - of whom I am one, by the way - has hardly born the burden of even one red cent towards my education, whereas I have born a cost of upwards of $100,000 in addition to three years of my life. (Even if I'd gone to a public school, to which I would have been entitled as a citizen taxpayer, the cost still would have been in the tens of thousands of dollars.) So if anyone is entitled to make sure that value is received for the investment, that person is me.)

On the other hand, should law school be like this? People continually lament that law school does not prepare you to actually be a lawyer. I myself lament this, although unlike (apparently) lots of people I went for the academic exercise as much as I went for the career. Lots of people only went for the career, and consequently their desires and expectations were different. Maybe they were wrong to limit their goals from the experience, but, then again, to each his own. One of the things that did seem to become apparent from the discussion, however, is that there does seem to be a collision of expectations - the "just teach me what I need to know" versus the "let me teach you what I think you need to know." If the conversation revealed nothing else, it's that pitting these two attitudes against each other with nothing but the brute force of authority to resolve the conflict is not going to enhance anyone's experience, or the institution of law.

My experience teaching swimming does give me some insight into the latter perspective, however. I understand Dimino's frustration as a teacher. Students often think that just by showing up during the class time they'll magically absorb everything they need to know. And it doesn't work that way. Without effort made both in and out of the class effective learning just won't take place. How many times have I found myself in the position after a weekend asking my kids, "Did you practice?" and being told the answer was no. (Note: I tend to assign land-based drills so pool access is rarely an issue here.) So I make do, but I'm always saddened, because I know that by the time we reach the end of the course the student won't be as far along as I know they could have been had they made the additional effort. And how do I know this? Because I'm a teacher, with experience and expertise teaching. Students of all stripes ignore the ethos of their teachers at their peril.

Of course, some teachers are better than others. Especially given the constraints of the institution. Law school is notorious for large, first year classrooms with scary professors terrifying students with the so-called Socratic method. Most modern professors have moved away from scariness (although I had one my first year who hadn't), but cold-calling is still en vogue. The result is that students are expected to be prepared every day. Whether, however, this is a good thing is an open question.

Dimino objected because he felt the student's lack of preparation was disrespectful to both him and the class. Other people chimed in to say that fellow students couldn't care less whether the student was prepared - they'd rather hear what the professor had to say than their fellow students anyway. It also became apparent from this discussion that the student's personal desire to be prepared and the cultural expectation that they always be seemed to vary from student to student and law school to law school. In my school there always seemed to be a lot of pressure to be prepared. If you got cold-called and were unprepared it would be extremely embarrassing. And your class-participation portion of your grade could suffer (these grading policies were clearly announced at the beginning of the class, which I think is absolutely necessary if lack of preparation could possibly lead to adverse GPA consequences.) But the discussion revealed that not all students at all institutions necessarily felt the same way.

Personally I feel like it was all a waste of time, having to prepare every day in defense of a cold-call. In fact, I feel like I suffered for it. It made me always feel I was behind the 8-ball, pressuring me to learn defensively in order to forestall embarrassment, but not so much to actually learn anything. And then whatever I did learn would tend to get immediately washed away by what I had to learn for the next time. I didn't have enough time to do this kind of preparation and also learn and take notes in a way that would be helpful for me when it came time for the exam, and I think my first year grades reflect this. I did much better (even if not in terms of grading then in terms of general retention of material) in classes where I did not have to be prepared every day, but instead was responsible for certain class sessions (always known in advance). This arrangement optimized my bandwidth to learn material in a retainable way, and then induced me to pay much more attention in class for the other days to then learn what I hadn't prepared for on my own. (Obviously a little preparation helped, but usually just enough to have familiarity with the thread of the class discussion.)

In any case, what this discussion has shown is that law school has some inherent dysfunction, but with the advent of blogs it is now possible to shed some light on it, and hopefully now bring about effective reform.

One item that I noticed on the New York bar form was the question of whether there was anything keeping me from swearing to uphold the federal and NY constitutions.

My question is, what about the oaths all the other states make me swear to uphold their constitutions? Now, in theory this isn't a problem. But what if, say, NY and California get into some sort of tussle, legal or otherwise. Who am I bound to support?

Actually, this isn't entirely a silly question. The fact of the matter is that I've already had to swear a loyalty oath to California years ago when I got my job as a soccer referee for Cal intramurals. Because I was working for the university (albeit at $8/hr for maybe 10 hours a week) I had to sign the oath as part of my employment paperwork. (Note - this may not be the version I initially signed way back in 1992, but it was something similar.)

I'm surprised it's still there. It was controversial from the get-go, and according to this article, overturned by a court case.

In any case, what good is an oath that you are forced to sign? Oh, sure, no gun was pointed to my head. But the threat of the loss of a job, particularly a non-fungible one that may be your only realistic option given your skillset (e.g., it's not like Berkeley was rife with employment opportunities for soccer referees other than the intramural position), and certainly the loss of a vocation (e.g., being a lawyer), seems like enough to create a climate of duress.

An oath would seem to make a little more sense in terms of the lawyering because lawyers are considered officers of the courts, which themselves derive their legitimacy from them constitutions that either establish them or their mechanisms for establishment. But what does it mean to swear to uphold a Constitution? Does it mean one must accept the institutions they create? Or accept every law those institutions create? What if such acceptance conflicts with zealous advocacy, when a law legitimately passed may still be illegitimate? Or what if you simply just disagree with it?

The problem with loyalty oaths is that they are often overreaching things that require allegiance more than they require assent to recognize certain sources of law, which it seems is all that is necessary here. And as with other issues connected to sources of law it doesn't seem so farfetched that there couldn't one day be a conflict between them.

Recently on the Conglomerate Christine Hurt mused about whether it was necessary for law students to learn how to do book-based legal research since Lexis Nexis and Westlaw are now so ubiquitous.

True, Lexis and Westlaw make legal research convenient. Not having to go anywhere to find the answers you need is convenient. On the other hand, each service has its own cumbersome qualities, and it takes some learning and practice to be able to use them efficiently and effectively. Moreover, they are expensive. As students we get lulled into the complacency of having full, free access to these massive archives of information. As graduates, however, we have to pay. A lot.

So book research ends up being as important as computer research because unless you've got a situation where someone else is paying (an employer?) it may be the only way to find what you need.

But that leads to another problem. At school you always know where a law library is - it's built-in. What about when you graduate? I never really thought about this. I never thought there even were law libraries floating around out there at all.

Turns out there are. Counties have them, often attached to the court system, and law schools may share theirs with the public doing legitimate research.

Good to know.

First things first: Runaway got cancelled. It's a pity, but it was clearly on the wrong network. It should have been on, say, CBS, since it didn't have nearly enough teen angst to survive on CW.

Meanwhile, last night's Shark is making my head want to explode. While as a show I think it's generally getting more tolerable, the law it presents is striking me as very weird.

The premise of the show is that a high-flying criminal defense attorney, played by James Woods, gets recruited by the DA's office to prosecute high-profile crimes. Last night's plot involved a child abduction and murder that was very similar in MO to a child abduction and murder 15 years ago, where Woods' client ended up apparently unjustly convicted for it, despite the defense. (Actually, it appears to also have been largely due to the prosecutor's failure to disclose exculpatory evidence, and the assistant prosecutor's failure to report it. But we'll leave this "little" legal problem and related tangle of implications alone for now.) Recognizing the similarity in crimes, and knowing that his former client (now in prison) couldn't possibly have done the recent one, he asks for the client's help. He shows him a photo array and asks if he recognizes anyone from the time of the earlier crime. When the client does, the person he identified becomes the suspect in both crimes.

What I don't understand, though, is what happened when the trial began, when the defense counsel successfully moved to have Woods' character disqualified from the case for having a conflict of interest. The defense's argument was that because he had defended an earlier person for the same crime, they questioned whether - I forget how they phrased it - he'd be able to fairly prosecute this one. But they didn't similarly disqualify the DA who took it over, even though she had been the assistant DA who had prosecuted the other guy in the earlier trial.

Unfortunately I (currently) know nothing about California ethics rules - would this really have been a conflict under them? Because the result doesn't make sense to me. Conflicts rules are usually intended to ensure that the party being represented gets the benefit of completely zealous advocacy by their lawyer. When lawyers represent interest that conflict, then that might not happen and so there are these rules to protect the clients. But here I don't see a conflict: Woods character didn't believe his former client was guilty, and in prosecuting someone else for it now still doesn't believe his former client was guilty. The DA/ADA character, meanwhile, did think someone else was guilty before, but now thinks that the current defendant is. She seems to have much more of a conflict, because if you think about what each attorney is zealously advocating for, for Woods character it's a consistent result, whereas for the DA/ADA it's an inconsistent one.

The only thing I can think of to justify this result would be if the defense felt that because Woods might be motivated to exonerate his former client, he would somehow over-zealously advocate for the conviction of this defendant client, perhaps by being motivated to ignore any sort of exculpatory or mitigating information. I'm not sure I see the problem here, though. Any prosecutor is going to be 100% motivated to convict a defendant to the fullest extent the law allows. And there are still other rules and ethical duties directing the prosecutor to disclose information. Plus there's still the matter of a defense, where if the prosecutor is trying to prosecute the defendant more severely than the facts and law allow, that's where the jury comes in to return a not-guilty verdict. The only area where I can see Woods' character as potentially having any bias as a result of the earlier case would be in focusing on the defendant and bringing the charges against him in the first place. But unless there's some evidence of malicious prosecution (which there didn't seem to be) that shouldn't be a problem here either. And if it were an issue, it wouldn't be fixed by having another DA try the case. In fact, there didn't seem to be anything in the ruling to keep Woods' character or his staff from advising the DA who did end up prosecuting it. How could there be? She was entitled to the information Woods' team had built their case around. Normally when there's conflicts, firewalls are supposed to be built to keep an attorney with certain knowledge from tainting another colleague with it, in order to keep the second from being tainted by the same bias. But there was no such firewall order here, and it's not at all obvious why there would be.

No, this whole thing just seemed like one large plot device to finally develop Jeri Ryan's character. I find this so frustrating. Look, I know it's TV and certain minor issues of law and procedure are going to get mushed in order to keep the show going. Like when the judge in this episode sua sponte released the earlier defendant from prison upon the conviction of the new defendant (in fact, there's been entire Law and Order episodes illustrating that such things are not nearly so automatic). But ok, it made for a convenient happy ending, no big deal. It was just a detail. But the conflict issue became a plot point, and in instances like that, when a TV show is calling people's attention to the law, it's important to get it right. Or at least not make it a complete fiction.

Of course, I don't know if this isn't how things normally would work regarding California conflict law. But if it is, I don't think it makes sense.

I just took the 200 question BarBri pre-test, the same pre-test I did last summer. I got a 117, which is pretty darn close to what I got last summer after having already done the same amount of practice questions previously (I've done 212 so far this time around). In fact, it's one point better. Which I suppose means I'm in good shape, although does seem a little weird given that (a) I've seen these questions before, and (b) I think got wrong ones that I had once gotten right, and vice versa. But it's all fixable, at this point, and brushing up on a few key areas should do the trick. Also, this year I mean to do more practice PMBR questions so I can get used to other question styles. But I am still fast (I did 200 questions in under 4 hours, not including a 30 min break halfway through), which is good. The hardest part is just managing to concentrate for the whole time. Unlike last summer, I have a lot more on my mind now and it's making it much harder to focus.

Especially since I keep finding the whole thing increasingly infuriating. It is insane that they construct a test based upon the illusory notion of legal certainty. Are the test makers really so unfamiliar with the American legal system? Ours is an adversarial one, where lawyers for each side always find a way to press an argument that advances their client's interests. Rarely is any legal situation such a slam dunk one way or the other. Barring something like Rule 11 sanctions that penalize a lawyer for truly frivolous claims made in bad faith, no statute, case, or indeed Constitution will ever be so clear on its face as to foreclose a good lawyer from finding a way to have the client's case viewed in a legally favorable light. That's what we're trained in law school to do.

Obviously in certain situations it may be a tougher row for the lawyer to hoe. But rarely will the law be as insurmountably absolute as the MBE imagines it to be. Perhaps it would be in a civil law system, where the law extends only as far as the language of the statute specifically articulates, but not in our common law system where statutes, cases, and indeed constitutions are always subject to some sort of interpretation. Therefore any test that boils down the American legal system into nuggets objective truth is going to be wrong, not the test-taker who rightfully fights that urge to oversimplify.

I don't just mean the test will be wrong in some metaphysical sense - it can be wrong specifically as well. Last summer, for instance, the MBE insisted that a search warrant could only be validly served when preceded by a knock on the door. The US Supreme Court, however, disagreed. Now, granted the Supreme Court weighed in subsequent to the composition of the test. And so it's possible that the MBE didn't ultimately count any question involving this "rule" since it had since been "changed."

But that's just it - the law does change, or at minimum gets constantly finessed. So to treat the law as a fixed set of discrete rules can never be right. Nor can we, as future lawyers, ever be either if our passing responses inherently ignore this reality.

I'm not sure what took it so long, but today there was finally a decision in the Wal-Mart class action case I saw the oral argument to. (The class action gets to go forward.)

After all that gnashing of teeth regarding my failure to write a publishable post, I'll add this one so that I can close up the browser window holding the article open as a reminder. The issue: a college student is suing his university over a bad grade. To try to make it sound even more laughable, the article makes clear to mention that he's an aspiring law student.

There is a great danger, as I've said before, in making fun of things without knowing all the relevant facts. I don't know all the facts, and perhaps even if I did it would still turn out to be fair to mock the student. But a few facts that did show up in the article suggest that the lawsuit might not be quite so petty as I think it may be made to seem.

One such fact is actually that he did intend to go to law school. For better or for worse, grades do matter a great deal for getting further educational opportunities, and subsequent earning power can vary a great deal depending on which opportunity you are able to secure. This is particularly true for legal study, where admissions are extremely competitive. All that goes to say that it may not be overreacting to take great care in protecting one's GPA as an undergraduate. What I don't know is to what extent one bad grade (assuming he otherwise had all good grades) could affect on one's admission prospects. If it's just one bad grade the impact could possibly be negligible, or it could be significant if the law school could accept a similar candidate who had no bad grades at all. Particularly because incoming GPA is an important factor that the US News considers in ranking law schools, law schools may thus feel pressured to take the students with the absolute highest GPAs they can get in order to best secure a higher US News ranking. While they might otherwise like the candidate with the one bad divot on his undergraduate transcript, they might not be able to afford the statistical ding such a grade causes.

Secondly, according to the article, he is not disputing a judgment call (like where an instructor may have given him a lower grade than he thought he deserved). Rather, it appears he is disputing that the entire grading policy changed mid-course (or, as it seems, perhaps post-course). I would want to know, before making a judgment on this case, when the change occurred. If it was not too late to drop the course then, provided doing so wouldn't cause other harm to his other coursework or ability to graduate on time, staying in the course in order to sue later would be unreasonable. But if the change occurred after he had already devoted unrecoverable effort and energy to the course, it would have been too late for him to protect himself. It generally defies our notion of fair play to change the rules on someone mid-stream, and legally we are protected from it by the concept of estoppel. If someone has reasonably relied upon something (e.g., information, rules, policies), it is unfair to cause them harm by changing it after it is too late for them to adjust. Given that completing coursework always requires a strategic allocation of energies, changing a grading policy substantively at any time other than at the very beginning of the course has the potential to seriously disadvantage a student caught in that trap.

The next thing I would want to know is what the school policy was on such grade changes, and whether there was a grievance process. Even if there was no policy or no grievance process, I would still want to see that the student make a reasonable effort to allow the university to establish one and/or have the matter separately addressed. If the university still refused, then I think it would not be inappropriate to pursue other remedies.

I also wonder, along the lines of general musing, what the claim would be. If it were a private college I suppose he might have some sort of breach of contract claim. But this is a public institution - I wonder if some sort of procedural due process claim would be possible, particularly if there were no grievance process available after the policy change was made.

All these possible facts aside, it still might be a difficult suit to win. For instance, the measurement of damages is somewhat speculative, as it's not clear that he would be a shoe-in to any particular law school, or that he would be guaranteed some income level as a result. On the other hand, there is the US News rankings to show where he might likely have gotten accepted given his general qualifications, were it not for the lower GPA.

Public policy might also be a tough current to swim against. Because grades matter so much, and because anyone without a 4.0 would presumably want their grades changed, courts may be extremely reluctant to wade into these waters. Still, if considered as a grading policy issue, and not an issue of a specific grade, it might at least be worth a closer look and potentially appropriate for redress. True, we might not want courts to meddle in all matters, but we don't want people to be handicapped by arbitrary unfairness either. When that happens, surely it must be possible to fix.

Edit 2/9: Thanks to Mark for finding more information. I think I agree with his assessment that this case may be a "hail mary," (e.g., I'm not sure how the student could make out a First Amendment claim) but it's not completely farfetched since there did seem to be a significant change made (it's also unclear whether the change involved imposing a new curve upon the raw grades, or whether they changed the raw grades as well). Also an additional question to consider as a defense for the school might be whether the change was reasonable, and if that reasonableness absolves any liability the school might otherwise have.

561 A.2d 1248, 1249 (Pa. Super. Ct. 1989)

The other day I gave a friend who's a golfer a copy of my favorite case from law school: Cobaugh v. Klick-Lewis. It's a contracts case and taught when we learn about how contracts are formed. A contract is formed when there is both an offer and an acceptance of that offer, some sort of "meeting of the minds" where one party says, "if you do this, I'll do this," and the other party agrees. The tricky thing, though, with contract law is that sometimes it's hard to tell whether there's been a genuine offer and/or functional acceptance, and often the courts are called upon to decide whether there has been and if so there is a resulting contract to enforce.

As an appeals court once did in this Pennsylvania case. Apparently one day a golfer had approached a tee and saw a big sign saying, "Hit a hole in one, win a free car!" He did, in fact, then hit a hole in one, and subsequently demanded the car.

The car dealer who had placed the sign refused to give him one. That sign was from a contest the day before, the dealer said. It wasn't a current offer.

To which the golfer countered that it certainly seemed like a valid offer - for instance, there was no expiration date on it - and he had accepted the offer by doing what it demanded: hitting a hole in one. So fork over the car, please.

(For many contracts it's not necessary to have a formal written document outlining the agreement in advance of the parties beginning to perform their obligations under it. Often contracts are actually formed simply when one party performs the obligations the agreement requires of him because his doing so signals acceptance of the deal by being willing to take on his part of it.)

The court agreed with the golfer. He'd had no reason to suspect it wasn't a genuine offer, he'd accepted the offer by doing what was required of him (hitting a hole in one), and as a result once he'd done so it was too late for the dealership to withdraw the offer. So the dealer was now required to do its part, as it had offered, and give him the car.

There was, however, a dissent to this case. The dissent pointed out that it was against public policy to enforce contracts involving gambling. In certain (though relatively rare) situations courts will refuse to enforce contracts, even those validly formed with clear offers and acceptances, when the result of the contract is something bad for society. You couldn't, for instance, have a contract requiring someone to commit a crime and expect the court to enforce it. Courts wouldn't care how carefully the i's were dotted on the agreement - there are certain things that people cannot bargain for. And gambles are another such example.

What the dissent pointed out was, "Do you have any idea how astronomical the odds are against hitting a hole in one?" The dissent even listed the odds, and they were indeed astronomical (although how astronomical I cannot currently say since I gave my friend the copy of the case.) It then went on to say that the odds were so astronomical as to be a situation of mere chance that the golfer would succeed, and thus the whole situation amounted to gambling. Therefore even if there had been a valid contract formation the court should not enforce it.

But the golfer was one lucky guy, and so not only scored his hole in one but also won his case - and his car. The end.

Catherine R. Gellis, CopySense and Sensibility: How the Wiretap Act Forbids Universities from Using P2P Monitoring Tools, 12 B.U. J. Sci. & Tech. L. 340 (2006).

Paper abstract:

While the Wiretap Act forbids interception of the contents of communications of traditional telephone calls, it has been less clear to what extent it forbids interception of the contents of Internet communications. This paper argues that the Fourth Amendment privacy interests protected by the Wiretap Act should and do protect Internet communications the same way as the Wiretap Act has been construed to cover traditional telephonic communications, and, as such, that usage of devices designed to intercept and monitor Internet communications can be illegal. More specifically, this paper addresses how the devices increasingly employed by universities to intercept and identify potentially copyrighted materials being transmitted to the Internet via their networks by university users run afoul of the Wiretap Act's interdiction against such monitoring.

Download and read.

Or so he says...

Which, according to the Bluebook, would be cited as

How Appealing, http://howappealing.law.com/031507.html#023356 (Mar. 15, 2007 15:20 EDT).

and not, as I've before suggested,

Howard Bashman, The Method for Citing to Blog Posts Found in the 18th Edition of The Bluebook "Would Completely Ream Someone like Howard Bashman," HOW APPEALING, Mar. 15, 2007, http://howappealing.law.com/031507.html#023356.

If you don't know who Howard Bashman is (and how would you, if his name never gets to show up in any Bluebook citations...) he keeps a blog that serves as an amazing and well-respected - to say nothing of voluminous - clearinghouse of legal news. In fact, it's so voluminous that I can hardly keep up, and therefore nearly missed the post wherein he noted how I'd rushed to his defense against undeserved Bluebook-inflicted anonymity. In fact, I think it's a pity that he seems to have accepted his Bluebook-induced fate with such equanimity. With a little more righteous indignation, I bet the blog citation form would get fixed right away...

Edit 3/19: If the further adventures of recursive blogging, Howard noted this post on his blog. However, I'm afraid to note that he noted it, because then he'll have to note that, and then this will all get very silly.

Haven't we already had this discussion? It's come up again because Georgetown law prof David Cole wrote an op-ed in the Washington Post declaring how obnoxious he'd been, and then bragging about why he was right to have been so obnoxious. His particular form of obnoxiousness: banning laptops from his classroom.

Lots of law profs linked to said article on their blogs. I chimed in with a comment on the post on the Volokh conspiracy because I read Jonathan Adler's post on the subject as a little too admiring of Cole's act.

2 points:

One, that I did 5 out of 6 semesters with a laptop. I did one without. It's probably true that I paid a bit more attention during the handwriting semester, but when it came to studying for the final my chicken-scratches were useless. I had to get copies of notes from my friends - who'd typed them.

Secondly, particularly given how one's future career and earning power as a lawyer correlates to how one performed on their exams, a professor would have some nerve setting up roadblocks to prevent students from using the learning tools they need to succeed.

I've become particularly sensitive to that latter point, given all the job posts I see where only people in the very top of the class rank are invited to apply. It's stupid that grades matter so much, but since they do, it's extremely wrong for professors to interfere with students' abilities to get good ones, in this case by meddling with their learning processes. Not everyone learns the same, but Cole is quite candid in admitting that one of his goals in banning laptops is to destroy certain study mechanisms - particularly those involving verbatim notes. For many students - myself included - verbatim notes are essential when it comes time to study for the final exam. But as other commenters pointed out, banning laptops and the transcription abilities they afford to the notetakers who need them simply punishes those students and rewards the ones with better memories. Is that really how grades should be awarded? Isn't analysis supposed to be key? Note how many law school exams are "open book" and permit notes to be brought in. Clearly memorization is not the prized skill. Also how are people even going to have decent notes to bring in if they are not able to capture the information as it comes? The "pie in the sky" answer might be that students should take good notes when they do the reading at home, and/or immediately after class, and instead sit in rapt attention while in class, but anyone who thinks this might be an achievable ideal has clearly never been a modern law student laboring under a typically demanding schedule.

As a teacher myself, I do understand the frustrations that professors might have when faced with potential indifference from their students. In law school today that tends to take the form of Internet surfing and Solitaire, but it used to be doodling and crossword puzzles. But the solution to this problem is a change in pedagogy. Large law classrooms may simply not provide the kind of dynamic environment where class participation is helpful for learning. Small seminars may be another story, and I have less of an issue with laptops being banned there since it's much more clear that the educational benefit is derived from your own, as well as others', participation. But class participation in large classrooms is not nearly as helpful to others, nor is it necessarily helpful to yourself. In fact, I think it could actually be harmful to a student's exam performance.

I've always tended to be a hand-raiser, and in public school as a kid it may well have been helpful for my learning. Participating certainly did engage me. Participating in law school also engaged me. But in law school it wasn't enough to be engaged. To an extent, it wasn't even important. It was even potentially detrimental, at least to me. When I'm engaged I tend to think very broadly. I really want to understand the big picture and know how everything is supposed to fit together. In the long run I think I'll be a better legal scholar and practitioner for having approached the material that way, but in the meantime it hurt my grades. I've talked before about why I'm disappointed in my 1L grades, and I still stand by my frustration with my roommate, who clearly sapped all the energies I needed to succeed that year. But on retrospect I also recognize that there were certain things I just wasn't getting. Take Constitutional Law, for instance - which, incidentally, was a class where no one dared indulge in distractions lest risk getting eaten for lunch by a Paper Chase-like professor. I was there every day, paying the utmost attention, but having now sat through two separate Chemerinsky Con Law lectures in preparation for the bar, I recognize that there were things I just did not understand from my 1L class. I was thinking about everything on much too high a level and didn't catch all the specifics I was supposed to later put on my test. I would have been much better off in that regard had I focused more on what the professor had actually said, instead of the discussion he was trying to foster. The latter might have been interesting, revealing, and food for thought for a long time hence, but thinking along those lines without having first caught the basics is a bit like trying to fly before you've built the airplane.

In any case, this post is a caution against the delusion that professors can or should so strictly micromanage their students' learning. This caution applies specifically to laptop policies, but it could also apply more generally. With lecture classes holding dozens and dozens of students, each with their own learning styles and learning objectives, professors run the risk of interfering with their students' education, rather than enhancing it, with one-size-fits-all policies and practices.

Last week Christine Hurt at the Conglomerate blogged about comments speaker Jane Kirenzo Pigott made about women in law firms. Law firms tend to be largely devoid of women at the upper levels, a situation often regarded as troublesome. Certainly there's no lack of women qualified for these positions, so what's the problem? Are they not interested in staying in firms long enough to occupy these positions, or are they unable to obtain them because of a glass ceiling effect? Or is it some combination, or vicious cycle, of both?

So the speaker presented some rules for women entering the field, which Christine listed. Most of them encouraged women to adopt what's typically regarded as more masculine tendencies, of making sure they believe in and express their confidence in ways that aren't always naturally intuitive for a lot of women. OK, that's all fine. Perhaps a little repetitive and banal, the same kind of advice I've often heard from lots of quarters about how women should act in the workplace yet usually don't. But for the women to whom these kinds of suggestions haven't yet occurred hearing them be made explicitly could potentially be constructive.

But the first rule expounded sat so poorly with me that it haunted me throughout the day, until I finally had to go back and comment. The rule, as paraphrased by Christine:

Someone has to stay and lead. ... Jane pointed out the statistics to show that law firms have had plenty of women in the associate pipeline for decades, but few stay to reach the top. Unfortunately, those that want to stay carry with them the baggage of those who have left, so they are presumed to be temporary also. Every woman who stays in a law firm and moves up the pipeline does a mitzvah for those who follow.

"Does a mitzvah?" I don't quarrel with the notion that it could be helpful for future female lawyers to have other women already highly stationed in the firm, but this "advice" boils down to little more than a guilt trip. I commented:

...There can be any number of legitimate reasons for leaving a law firm - should women not do so in the face of these reasons for fear of letting down their sisters? [W]hat really bothers me about this piece of advice is that it has absolutely nothing to do with empowerment. If anything it reads as further debilitation, putting a new burden on women to keep them from looking out for number one, so to speak, and seems to run counter to the spirit of the rest of the advice, which seems much more consistent with advancing that empowerment goal.

William Henderson, a subsequent commenter agreed. "As a white male, I have no one heaping obligations on me because of my gender or race. Therefore, my self-interested choices are subject to less scrutiny and judgment by others. That autonomy and freedom of action is a great asset for me."

I did a unit on feminism during a social theory course in college, and what I remember in particular was the lesson that one of the problems with feminism is that women aren't just having to confront male prejudices, but also those of other women. Other women's judgmental scrutiny can often do more to tear down women than any other external force. So to advance "guidance" to women that would further encourage them to sacrifice their own self-interest seems - at best - incredibly counter-productive.

This is not to say, of course, that there's anything wrong with looking out for others, particularly those coming up behind you. Indeed it's a worthy rule to live life by for everyone. Being cognizant of your own struggles and doing what you can to eliminate them for others is certainly admirable, if not also advisable. But the idea that as a woman you have some sort of extra duty to do so is disconcerting. As would any rule be where its applicability is limited to those as a woman. If the goal we're shooting for is true equality among the sexes then heaping upon women extra rules and obligations simply because they are women will ensure we never achieve it. Especially because it's the separating out of women, treating them as if they're a separate species, that's causing the problems in the first place. Even from the example, "[the women] that want to stay carry with them the baggage of those who have left, so they are presumed to be temporary also," the problem is that women are being treated monolithically, as "women" and not as individual, capable lawyers. It therefore seems impossible to truly rectify the situation if women themselves adopt the dichotomy. The problem is that it exists in the profession at all, and accepting it would simply further entrench it. On the contrary, the actual solution must be to resist it, and to empower women to do so.

I wasted half my morning yesterday trying to watch the Paris Hilton hearing. I thought it was going to be at nine, but I gather it didn't happen until midday. And it turned out that, as far as I can tell, it wasn't televised anyway, which I think is unfortunate. Because while cameras in the courtroom are thought to inflate celebrity hysteria, it is because there already was celebrity hysteria that we needed that direct record of the proceedings to diffuse it.

Don't get me wrong, I rarely spend my time following these cases of "celebrity justice." I do not watch Access Hollywood, Entertainment Tonight, or any of their tabloid ilk. I don't read Us or People, and I don't even click on the celebrity-related headlines on CNN.com, largely because I don't want to encourage the people who analyze their hit stats to think that people would rather read about, say, Rosie O'Donnell and Donald Trump than, say, the Iraq war.

But the Paris Hilton case is different. The Paris Hilton case was actually important. Although I think it was slightly less important in the ways more people are squawking about, which is about whether there's a difference in how celebrities are treated versus how regular people are treated by our system of justice. Which is not to say that there's nothing to say on this subject. There clearly is, but I do fear that by focusing so much on Paris Hilton's stake in the matter we are ignoring the more serious issues raised by everyone else's stake in the matter.

In any event, her case was only of passing interest to me until she was released to home detention. Because that is what raised some really interesting, and important, systemic legal questions: what power in California has the authority to regulate an inmate's sentence, and to what extent can they?

As I was able to understand it from a printed story later, at Hilton's sentencing hearing the prospect of her serving her time at home had been raised, but the judge specifically foreclosed that option. Then she was handed over to the custody of the Sheriff, who was in charge of her serving her sentence. That Sheriff decided, for reasons only intimated but not yet disclosed to the public record, to let her serve the sentence at home. Now, it seems from reports that normally the Sheriff has that kind of discretion, but in this case the court had specifically stripped it of it.

So the hearing yesterday was all about the tension between the court's authority and the Sheriff's authority. It was hardly about Paris Hilton at all. Yet no news outlet televising the hoopla seemed to have any sense of that. Instead the reports were all about what Paris was wearing, who was with her, the scene outside her house that morning, how the paparazzi were being outsmarted as they snuck her into court... I had to mute the television to keep my brain cells from self-immolating. I wanted to know how the situation was resolving, but watching the coverage of it was telling me everything but. And then these were the people I had to trust to relate the proceedings to me afterwards? Given that they were heretofore demonstrating not even the slightest grasp of why any of this was happening, I didn't think I could do that. I didn't want to know that Paris was wearing a fuzzy gray sweatshirt and clutching a tissue; I wanted to know what the judge asked the attorneys. I wanted to know who from the Sheriff's office appeared, and what their legal arguments were. I wanted to know how the judge responded to them. These were the things that were important. And these were the reasons why I wanted to watch all that happen on tv myself, because I didn't want to have to be dependent on a likely very filtered and very missing-the-point assessment to be able to reflect on it.

It may sound esoteric and technical, what I wanted to see. It may seem uninteresting and unimportant, but in reality it is anything but. Because especially if we want to talk about the bigger issues of celebrity justice, or justice in general, we have to understand how it works. If we think that certain people should be treated more or less harshly by the system, we need to identify by whom. Should the judge have acted differently? Should the Sheriff? If we think changes are necessary, we need to be able to identify where they need to be made, and we can't do that if we have no insight into the process to be able to identify where we think it might be breaking down.

That's why I think it should have been televised, and why more such hearings should be as well. Because we need to be able to go straight to the source and not be dependent on secondary reports by those who are going to be more interested in perpetuating the celebrity than discussing the substance of the proceeding that celebrity has provoked.

The New Jersey continuing legal education (CLE) requirements for new lawyers could be a good idea. Lawyers get out of law school not really knowing how to be lawyers, and the bar certainly doesn't prepare them. So before being unleashed to practice on the public (or at least pretty soon thereafter) it makes sense to ensure that they know enough of the rules, laws, and procedures of the jurisdiction in order to practice properly.

Unfortunately, the New Jersey program, as implemented by the New Jersey Institute for Continuing Legal Education (ICLE), the only agency authorized to administer the required courses, falls far short of that ideal. So far short, in fact, as to render the entire requirement a complete waste of time and money for all involved, but particularly for those who can least afford it: new lawyers already saddled with school debt and busy with trying to establish their nascent careers.

Lest my criticism seem born out of sour grapes from having had to endure it, I will say that the ICLE staff at my location were very nice. During the five days of video replays they took pains to make sure that we could get through them as expeditiously as possible. Also, the general advice given by most of the presenters in the various lectures was often informative and practical.

However tips alone are not nearly enough of a payoff to justify the immense investment in time and money lawyers are required to make in completing these mandatory classes. For this CLE program to be a rational requirement it must truly meet the ideal of providing new lawyers with the practical knowledge necessary to practice. While tips are consistent with that goal, they cannot on their own replace a pedagogically sound curriculum. Which, in the case of these NJ ICLE Skills and Methods courses, was sorely lacking.

The presentations we watched this summer were recordings of those given live in the spring. Although poor videography at times further compromised the summer learning experience (for instance, one presenter used powerpoint, but the videographer had neglected to adjust the camerain order to record what was on the screen), the basic defects were inherent to both sessions, with the most significant being that presentations appeared to be largely haphazard. Although we had been given outlines for each of the five courses, the lecturers either didn't follow them, followed them inconsistently, or followed ones that were obviously different from what we had been given. While many of lecturers had constructive things to say on their topic, and their presentations generally followed a logical internal order themselves, they did not conform to a systematic overview of what a new lawyer would need to know on the topic (nor a specific practical tutorial on any part of it instead). In some instances the presentations seemed to assume that students had already worked with the subject matter, which wasn't always the case. Of course, to the extent that it was the case it rendered these courses even more useless, as those lawyers would be further along on their learning curves and require more sophisticated instruction in order for the class to have been valuable to them.

Such is the problem inherent to the one-size-fits-all approach of the CLE requirement. Arguably it is good for every lawyer to have exposure to areas of law they might not practice in, but even so, at this stage in our careers we will need instruction in differing degrees of detail. Yet every lawyer, regardless of their background or experience, is required to sit through the exact same course, which ultimately was useful for no one.

It is already constitutionally suspect that lawyers have to be physically present in the state to take these courses, lest their licenses be suspended, because it imposes an impermissible and unfair burden on out-of-state residents (such as myself). Given that the summer cycle of the program's administration was entirely video-based with supplementary homework, meaning that there is no reason the courses couldn't be taken remotely, it's also a needless burden. Of course, given the quality of the instruction, the CLE requirement is a needless burden on everyone. Each course amounted to little more than a loosely-structured panel presentation on its respective topic which, while not wholly uninteresting, did not return enough substantive instruction to justify the investment of time students had to make to attend. Nor did the presentations sufficiently prepare the students to complete the cumbersome assignments that we must do in order to get credit for having attended, instead requiring us to waste even more of our time struggling through them.

Fortunately, at the moment, the New Jersey CLE requirement is limited to these and subsequent prescribed courses for the first three years of practice. The state however is kicking around whether to join other states in instituting a career-long continuing legal education requirement. There are reasonable arguments for such requirements, but if the proposed new CLE requirement demands fulfillment like this one does it will certainly do more harm than good.

In any case, the Supreme Court must take a look at its current requirement and institute significant changes. At minimum the requirement for physical presence must be removed in order to comply with the US Constitution. Secondly, and regardless of whether ICLE is allowed to keep its monopoly on administration of the required courses, new curricula must be designed and implemented to ensure that lawyers actually learn the substantive law the Court, in imposing these requirements at all, apparently feels is so necessary to learn. It would further be advisable to carefully consider exactly what that law is, so that no other lawyers need to be disadvantaged by having their time so needlessly wasted in superfluous classes.

As one might be able to infer from my tale of how I ended up informing myself of the bar results, I was not optimistic about my chances. Not after the last time and being so close, yet cigarless. Of course people now tell me that of course they knew I would pass; how could there have been any doubt?

The constitutionality of the bar exam has been unsuccessfully challenged on several fronts, but to my knowledge no one has ever pressed a "cruel and unusual punishment" claim. Which is too bad, because I think there would be some merit in that. You take this test for three grueling days with absolutely no feedback or ability to sense how well you're doing until four months later when they may finally deign to tell you "apparently not very well." It may be unpleasant to those around you to be morose and pessimistic about your chances of passing, but it's completely insane not to be. How could you possibly know otherwise? The only rational thing to do is walk around expecting to fail, with a Sword of Damocles above your head that's just waiting to drop.

I am, of course, greatly relieved that it did not fall on me, but my joy is tempered by the fact that several friends of mine did not similarly escape such fate. I hope they can manage to ignore the infuriating nonsense that this sitting apparently had the highest pass rate in years - it was still only 56%, only a little better than flipping a coin. No, the California Bar Exam is a mean, nasty thing that almost completely randomly sorts people into passers or non-passers, wantonly slashing away at thousands of people's hopes, dreams, and self-esteem. It is a vicious and inarticulate creature, incapable and unqualified to comment on anyone's character or intellect, so please, whether you are a passer or a non-passer or even an acquaintance of either, don't allow yourself to let it.

Read Part II.

The third item of interest was an unfortunate decision from a magistrate in the District of Idaho who is allowing DMCA [Digital Millennium Copyright Act] subpoena mechanisms to proceed in order to identify an anonymous critic on a blog. Normally there are protections available to keep bloggers' identities from being divulged to an opposing litigant - except when it comes to allegations of copyright infringement, for which the DMCA makes it relatively easy for accusers to discover the identities of the accused.

The perverse thing about this particular case is it had started out as a run-of-the-mill libel-sort of case that the presumptive plaintiff turned into a copyright one when its original takedown notice got posted by an anonymous compatriot of the anonymous takedown recipient. The problem with the magistrate's ruling allowing the plaintiff to invoke copyright on the takedown notice is that it's now able to get information about these people's identities that it wouldn't have had any right to before. And, more seriously, it would mean that anyone will now be able to menace anyone else with a takedown notice, because no matter how ridiculous that notice is, the recipient will never be able to share the threat publicly without risking his identity being unmasked.

I recommend people read Eric Goldman's explanations of the case and all the issues it raises, but I would like to add one other element that has not been addressed.

The magistrate based his decision to allow the DMCA subpoena mechanisms to proceed on the fact that the presumptive plaintiff, a company called "Melaleuca," had actually gone so far as to register the original takedown notice with the U.S. copyright office. Registering something with the copyright office raises the presumption of it actually being copyrighted. Of course, it doesn't actually indicate whether it was copyrightable, as registration is generally pro forma. Which can be a problem because not everything is actually copyrightable. According to the statute, it must, for instance, have sufficient originality, and the copyright protection would then only apply to those original parts. Arguably no takedown notice, a generally standard document varying only in its specific facts (note that facts themselves are also not copyrightable), could really meet this criteria, and there's certainly no evidence to suggest that this one somehow did.

But let's pretend that the letter was properly copyrighted. According to the copyright office's records, the copyright owner is the company. However the letter was written by its General Counsel Ken Sheppard.

So here's the thing: works are copyrightable by their authors. Whoever wrote it owns it. There is an exception to this rule, however, which is that an employing entity can own what an employee wrote as a "work made for hire." The copyright in the takedown notice had legitimately passed to Melaleuca because he was an employee of it. The thing about that, though, is that he was also their lawyer...

Attorney-client privilege exists to protect from discovery communications made between a client and its lawyer made in the pursuit of representation. The idea behind the privilege is that we want clients to be able to speak candidly with their advocates without fear that what they say so candidly could be used against them. On the other hand, we don't want lawyers to become co-conspirators with their clients. We draw lines, varying from jurisdiction to jurisdiction, to decide when a lawyer has stopped being an advocate and started being a participant. Just because you were talking to your lawyer (however engaged) does not magically protect everything you say - there are exceptions. Exceptions that are extremely difficult to draw, particularly with regard to in-house counsel, but that we can perhaps try to draw here.

A takedown notice normally appears to be an instrument of advocacy. The client wishes to demand something of another, and this is what the advocate drafts to try to get it. The problem in this case is that the takedown notice Sheppard drafted was not an instrument of advocacy; it was the creation of the very substance of the company's claim. Sheppard was subsumed by the company, his purported "client," not as a detached advocate but an inseverable part of it. Thus the communications made surrounding this relationship should not be eligible for coverage by the attorney-client privilege as they were not made in the course of representation but rather the company's own course of business.

Typically this sort of copyright situation regarding takedown notices wouldn't come up, partly because the copyright claim itself is so weak, but also because, to the extent a takedown notice is copyrightable, an external counsel would likely hold his own copyright in the letter (barring a specific agreement otherwise), and trying to enforce it against the client's opposition would likely put his interests impermissibly at odds with those of his client. But the same issue could arise even with external counsel when, like with internal counsel, the lawyer stopped advocating for the client and started being the client. Imagine a lawyer drafting legal instruments just for the purpose of enhancing the client's intellectual property portfolio. No privilege should apply there, and any related communications would be discoverable.

My thinking is that when the lawyer creates the substance of the client's claim - in this case the copyrightable work - the relationship is no longer one of representation and no longer deserving of the protection. I don't mean that merely drafting a takedown notice would forever annul any privilege; particularly if takedown notices are inherently copyrightable lawyers would be disqualified immediately upon producing any legitimate work. But when we take a closer look at the relationship between client and attorney in a case such as this, particularly being an in-house counsel situation, I don't think we can presume that the related communications should necessarily be protected. Sheppard in this case was not acting in a representative capacity for the client; he was acting as the client.

I'm interested in what others might think about what I'm suggesting, including whether there's better language to try to describe what makes this situation different from other in-house counsel ones. Something about it certainly feels different, which I hope I've captured, and which I hope is actually there. It seems manifestly unfair for a plaintiff to profit from pursuit its claims beyond what the claims themselves are worth. Granted this type of situation could be avoided if the DMCA were not written as anonymity-unfriendly as it is, or if this Idaho decision had gone the other way. I think it's a bad ruling for many reasons (see Eric's site for more), but if it is allowed to stand then perhaps the risk of having their internal communications discovered would provide enough of a disincentive for other plaintiffs to try to similarly use copyright law to do an end run around the protections otherwise afforded to anonymous speakers.

Edited.

Read Part I.

Another important item from Tuesday's news was that Senator Dodd led other Senators in tabling a bill that would have immunized from liability telcos who allowed the government to intercept callers' communications. I've been seeing a lot of grassroots efforts to stop this bill, and I'm gratified that they've succeeded (at least for the moment). On the other hand, I've held back on joining them. Not because I think it was right what the government or the telcos did, but because it was wrong. I'd rather save my political capital on clearly establishing its wrongfulness and preventing more, but this horse is already out of the barn. The thinking, of course, goes that if the telcos can be sued for their complicity in these kinds of government actions that will definitely help prevent it from ever happening again, but because there's some ambiguity about what they should have done I tend to think the efforts and energy should be devoted to clearly establishing it going forward.

Nonetheless, I noted with concern Ted Frank's related post on Overlawyered. In describing Dodd's successful efforts to table the bill he led with the headline, "Senate Dems: Trial lawyers' pockets more important than anti-terrorism legislation." Many commenters took issue with this characterization. I questioned how the record could possibly be construed to support the contention that these Senators had the interests of plaintiffs' lawyers first and foremost in their minds when they tried to scuttle the telco immunity bill.

He then posted an update:

Were the government's actions were illegal? Maybe, though reasonable minds can differ. But the question is different from the one of the dynamic consequences of finding private liability here. If corporations are held liable every time they agree to cooperate with the government on a national-security issue that is potentially ambiguous, they just won't cooperate at all without a court order. Perhaps that is the rule we want going forward. But if so, that policy choice should be the decision of Congress, not of unaccountable trial lawyers—and if it is the rule Congress wants, they should state it explicitly, so voters can hold them accountable for the consequences, rather than hiding behind trial-lawyer surrogates that later reward them for the earmarks to the trial bar. Should trial lawyers make terrorism policy?

To which I responded that his comments made sense, at least to the extent of questioning whether we want companies who cooperate with the government to be subject to citizens' private rights of action. Nonetheless, I continued, "Citing the trial bar as a factor in the policy decision is needlessly cynical and obfuscates the issue. The Senators who pulled the bill didn't do it at their behest, and if the answer to the question of whether we do want private rights of action against such companies does turn out to be yes (as many, many private citizens believe), then we're going to need those trial lawyers' help."

I read Overlawyered because I think it often makes valid points about "the high cost of the legal system." But the existence of some specious lawsuits doesn't automatically indict all plaintiff's lawyers. Sometimes they provide only avenue for righting a wrong. We ignore that potential at our peril.

Read Part III.

A few things happened Tuesday I want to comment on.

First, the FCC changed the ownership rules so that owners of newspapers may now own television stations in the same market. Critics decry this change because it allows for information outlets to be further consolidated. The marketplace of ideas may start to look like the shelves of a Soviet grocery store if the same parties can control all the sources of information.

I agree this is a significant concern. However, I'm not sure this particular rule change is necessarily the end of the world. Maybe 10 years ago it would have been more problematic, but now, with information technology, it's possible for lots of smaller players to sprout up and provide alternatives to the few large outlets.

At least it's theoretically possible. This FCC ruling is small potatoes compared to the other policies that threaten to choke off these other voices. The current copyright laws and policies that disproportionately favor large content providers over smaller ones are a much bigger threat. As is the absence of network neutrality: that content providers who are also content deliverers can filter out the content of smaller voices is a much more significant problem.

These are the areas where advocates of open media need to dig in. Insist on balanced copyright policy and network neutrality. Establish clear shield law protections for independent bloggers performing newsgathering functions. Allow no policy obstacle to stand in the way of actually creating an open and vibrant marketplace of ideas. Don't waste time trying to undo this change; just leverage it as a concession to secure the more important things.

Read Part II.