Statements of Interest

It's not that providing legal services to the poor isn't a worthy policy goal. However that worthiness does not vindicate any old policy nominally intended to serve that end, particularly if said policy either (a) doesn't actually help achieve it, or, worse, (b) actually undermines it.

Such is the case of the rule promulgated by Chief Judge Jonathan Lippman, head of the New York court system and, by extension, the New York Bar. Beginning in 2012 this rule will require prospective applicants to the bar to have performed 50 hours of pro bono work to be eligible for admission.

While the goal of providing legal services to the poor is laudable, this rule is anything but. Not only will it fail to truly serve the constituency it purports to benefit, but it will also result in the deprivation of legal services to even more people by ultimately raising the their costs even higher than they already are.

For those people who still read this blog (anyone? anyone?) I wanted to announce my new blog, "Digital Age Defense." In the long run "Digital Age Defense" will be more than just a blog - it's a whole project dedicated to exploring and providing resources to people finding themselves in situations involving state sanctions for their technology use and development. At minimum this expertise will roll into my private practice, but I hope to somehow provide some benefit with it to serve the public interest as well.

In the meantime, however, the project consists of a WordPress blog, and posts relating to the convergence of cyberlaw and criminal law will appear over there. (Other legal and general interest posts will remain here.) Please go read it/like it/follow it/subscribe to it (multiple feeds available)!

I found myself tweeting extensively in disgust over the Susan G. Komen Foundation's decision to stop funding Planned Parenthood's breast cancer screening programs going forward. "Politicizing women's health makes me sick," I tweeted at one point. "Literally. Because I'm a woman, and it undermines my healthcare."

A friend wrote back to me at some point during the fracas that he never would have advised the Komen Foundation from ending its alliance with Planned Parenthood -- but he also never would have advised them to enter it in the first place. It's just too controversial an organization.

I had to disagree. "If you are an organization dedicated to women's health looking to find partners on the ground who can do hands-on fulfillment of that mission in the community, there's probably few better than PP to partner with, and from a health-services-provision standpoint there's absolutely no reason why you wouldn't.

"The ONLY reason one would think twice about it is if one thinks it's perfectly reasonable to politicize women's health. And if Komen is such an organization, it doesn't deserve to be funded. At least not by people who recognize the deleterious effect politicization of women's health actually has on women's health."

The reason the Komen Foundation found itself in such a hornets nest, I continued, was because everyone thought Komen was the first type of organization and was now shocked to discover it was really the second.

The real problem is that we're not seeing the issue for what it is. It's not anti-abortion v. pro-abortion. We're not talking about two sides of the same coin. We're not even talking about the same coin. One side believes in supporting women's health; the other side has a completely different agenda. The other side may claim it supports women's health, but it is simply not possible to support women's health by only supporting some of her health. Nor would it be possible to support only some of men's health either, for that matter. No man can claim to be healthy if he has, for instance, a healthy digestive system but an unhealthy circulatory system. Health requires all the systems to be looked after. But some mistakenly seem to think that women can be healthy if they only get care for some of their parts and some of their conditions.

Which is not to say that everyone has to look after everything. It's perfectly fine for programs like the Komen Foundation to only focus on certain aspects of women's health. Specialization isn't a problem. But that's not what the move to end Planned Parentood funding was about. They didn't decide to pledge that money to an organization more focused on breast health. They decided not to fund it because they didn't like all the aspects of women's health Planned Parenthood cares for. That animus politicized the delivery of healthcare and undermined not only the health of everyone Planned Parenthood cares for in any way, but also women who have or ever will have breast cancer. Because now, instead of The Susan G. Komen Foundation being regarded as a benefactor of women's health, it is now regarded as an organization who thinks it appropriate to undermine it. And few who value women's healthcare will want to fund that.

I've been thinking about these issues in another context, so I decided to salvage this post from my old blog so I could reference it. Originally written March 23, 2004, with edits for clarity today.

There's a concept in the law known as the "reasonable man." It's used as a benchmark to compare the behavior in question with the behavior a reasonable person similarly situated would be reasonably expected to exhibit. It's often criticized as an elusive standard, because no person ever could attain such consistently normalized behavior. All people, even the most conventional, predictable, and rational, stray into their own eccentricities from time to time, which isn't itself necessarily unreasonable. Furthermore, reasonable behavior often derives its inherent reasonableness from context. Lighting a match may be reasonable in a dark cave; not so in a dynamite factory. Yet judging a behavior according to the reasonable man standard may not always capture contextual nuance so well.

Still, it can provide some guidance when courts are trying to decide if a person acted in a way unique to himself, or in a manner that other people might have reasonably behaved. In torts cases this test is extremely important, particularly in cases of negligence. Is it reasonable, for instance, to presume that a person who knew there were vicious, hungry dogs in the yard would have double-checked that the gate was locked? If yes, then why didn't this one?

The U.S. Supreme Court just heard a case, Hiibel v. Sixth Judicial District Court, involving a man who was arrested in Nevada for refusing to give his name when asked by the police. In this case the State conceded that the police hadn't had probable cause, a high level of suspicion he was guilty of a crime, to justify arresting the man when they first came upon him and asked him his name. They only had "reasonable suspicion." The Court was asked to decide whether this was enough to entitle them to ask him his name, with him being required to answer under penalty of law.

Ultimately this case could turn, at least in part, on how plausible a suspicion of an actual crime the police needed to justify the demand for a name. But what caught my eye in the New York Times report about the oral arguments was a comment made by Justice Scalia. On being asked to identify oneself, he said, "I would think any reasonable citizen would answer."

Recently the Centers for Disease Control used the prospect of a zombie attack to encourage Americans to think more about disaster preparedness. It was an interesting learning tool, using a premise seemingly silly and farcical but, as anyone who's ever watched a zombie horror movie knows, nonetheless potentially dangerous. The idea of the dead coming after the living has always been the stuff of nightmares.

It also might not be quite so hypothetical. No, I don't mean that the dead will rise from their graves and walk the streets looking for a fresh living brain to dine on. But in very real terms, the dead have an awful lot of dominion over the brains of the living, and that is plenty nightmarish too.

I think I've spent more time fixing my blog this year than actually posting anything to it, but now that it's been fixed AGAIN, here's hoping that changes...

Did you know that last year I rode my bike from Sacramento to Reno? It's true! I did! And, as per usual with my other longish bike rides, in order to see a Huey Lewis and the News concert... In previous years I'd ridden 65 miles from Sausalito to their shows in Saratoga. But last year that ride did not appear to be possible. So instead I made other plans...

The following is an adaptation of what I'd posted on the Huey Lewis and the News fan board. Had my blog been working at the time I also would have liked to have posted about it here then. But better late than never? Especially since I'm starting to think about doing another ride this year...

It started with a throwaway comment:

Saratoga on a Wednesday??? How am I supposed to bike there then? Or am I expected to bike to Reno this year instead?

At the time I wrote it, I was just being silly. I had been fully expecting to bike to Saratoga again (after all, after having ridden to it three times I wasn't sure I was even ALLOWED to drive to it...) and was truly disappointed to see that last year's Saratoga stint was but a single date on a Wednesday. Somehow that immediately disqualified it for biking purposes. But, hey! The Reno concert was on a SATURDAY. Surely that would be better, right?

Ha ha, who are we kidding? On what planet is a three-day bike trip to Reno an improvement over a one-day trip to Saratoga? And yet...

It was one of the games I only got to play when I visited my grandparents, but I always enjoyed Boom or Bust. Like in Monopoly, players circled the board, landing on properties to either buy or pay rent on if they were already owned. What made it different from Monopoly, however, is that the relative prices were variable -- not because of how much they'd been developed, but because of the prevailing economic climate. The square board contained a removable and reversible centerpiece. Without it, the prices were normal. But as soon as someone landed on the operative corner space, the centerpiece was placed on the middle of the board to raise all the prices to "boom" levels. And just as soon as that happened, it seemed, someone would land on the operative space causing the centerpiece to be flipped over to "bust" prices. Eventually the prices would of course return to normal, and the cycle would continue.

The game was won or lost based on when and how people spent their money. Buy high and hope to collect quick, high rents? Or try to wait for bargains and hope all the good properties haven't been snatched up?

It was a fun game, and an educational one. Not only because it necessarily taught how to spend money effectively, but because it taught that everything was cyclical. This was the most important lesson, that one should never presume the good times would last forever and, just as importantly, that one could be sure that after the bad times, better days would be ahead.

It's an important lesson, and one more people should heed. It would restrain the irrational exuberance that can have devastating economic consequences for both individuals and society, and it would restore needed faith that even in the darkest economic hour, someday the sun will shine again.

With this thought in mind I read with some appalled bemusement Dan Harris's post marveling about all the people denying there is a China real estate "bubble." I put it in quotes, because according to his post, a considerable number of people seem to think we're not currently seeing one, despite the unflagging stream of construction in China's urban centers. Sure there's a lot of vacant apartments right now, the thinking of many apparently goes, but China is sure to have massive urban migration who will need it. Whether that assumption is true, and whether the cost of the massive investment in building housing is rationally proportional to the population's ability to afford it are fair questions, but they're ones which many seem not to be asking. Everything is fine, they say. It will all work out. There is no bubble; things really are supposed to be this good.

To which I posted something that I think applies to any situation where people seem equally oblivious to economic reality, beyond just the China real estate one:

I think it's axiomatic that the more people deny there's a bubble, the more there is one. Everything is cyclical, even in China, and it's the denial of this reality that causes the biggest and most painful pops. This doesn't mean that arguments can't be made that China is in a good position to absorb the ebbs and flows of supply and demand, but, as with anything else, the more people protest that it is IMMUNE to these ebbs and flows the more likely it will be devastated by them, as nothing will have been done to try to minimize their inevitable consequences.

Those who don't remember history are doomed to repeat it, they say. History tells us that the game always changes. And as a result there can be an awful lot of losers.

Recent news from England has had me thinking a lot about free speech lately. In discussing this with other people online, it's become apparent that Europeans generally have very different ideas about free speech than Americans. I hope to write more about free speech, including potentially how it relates to the news from abroad. But in the meantime I also wanted to capture and republish some of my better posts from my old blog, so I thought I'd do so with this post I did on the topic. The concern about the "arbiter," as discussed below, continues to color my thoughts on the matter. Edit: see also this post here.

I was reading this article about free speech on college campuses, and in the section about Berkeley they discussed hate speech. From the article:

At the University of California at Berkeley, the birthplace of the Free Speech Movement during the 1960s, administrators replaced the school's broad ban on "fighting words" a year ago with a more narrow policy that prohibits harassing speech toward a specific person. Generally, hate speech is allowed against a group, but not an individual, said university counsel Maria Shanle....

It reminded me of a conversation I recently had with a German friend of mine. I would consider him (from what I know) to be of what's generally referred to as "liberal" in terms of believing in personal freedoms, sane and rational socially-progressive policies, yet eschewing any sort of extremism, be it on the right or the left. In other words, our general attitudes toward public policy were similar.

We got to talking, though, and we realized that our respective cultural backgrounds affected our oppositional viewpoints on the subject of hate speech. My friend expressed appalled amazement that in the US hate mongers (the KKK, neo-nazis, etc.) could be legally allowed to spew their venom. "But these are lies!" he said. How could lies be protected speech?

For me, I see it less as an issue of permitting lies. In fact it has little to do with the contents of the speech at all. The problem with forbidding lies is deciding who gets to be the arbiter of what is a lie and what is the truth. Truth is often relative under the most innocent of circumstances, and history has shown that over-reaching governments frequently designate what is truth only to serve their own power-grabbing ends.

What my friend couldn't fathom was the legal tradition which understands that equation, which understands that there are bigger issues at stake than simply being exposed to lying. It's a belief that no idea is too dangerous to be expressed; that the true danger comes from putting someone in power over deciding which ideas can be expressed at all.

I have now been molested by the TSA three times. That's three more times than the government had any business touching me in ways appropriate only for a boyfriend or gynecologist, but apparently it was possible to raise the bar for inexcusability even further, as this latest occasion showed.

After an inadvertent nearly year-long blogging hiatus, I'm back. Or, rather, my blog is back.

It began by accident: at some point last year what had been a perfectly stable Movable Type 4 installation suddenly stopped working. ("Stopped working" means scripts stopped executing, which degraded the user experience and made it impossible to maintain.) Initial troubleshooting got me nowhere; it was clearly going to take more time -- and patience -- than I could muster right then.

Or in the months that ensued. My time (and especially patience) mustering skills are clearly lacking when it comes to frustrating technical troubleshooting. But thanks to Twitter, that was ok; my communicating-to-the-world itch got satisfied that way. (It also probably caused the further atrophying of my time-patience-mustering skills... hmm.) But Twitter is limited; it can't replace everything that the long-form style of a blog enables, and eventually I came to miss that faculty so much I had no choice to bite the bullet and try to troubleshoot it again.

Which is what I finally did this weekend. I'm still -- for the moment, at least -- on Movable Type, even though it is the most cryptic blog platform to maintain, maybe, ever. Now that its contents are stored in a database it's actually a teensy bit easier to install than it was when I first started using it way back at version 2, but the way layout is controlled has become extremely opaque. After staring at it long enough it starts to make some sense, but the whole enterprise really taxes dusty HTML and UNIX skills that usually lie dormant.

Nonetheless, success! My blog is now live, and upgraded to the latest version, with only minimal loss of content and styling. Note: I have only resurrected my more recent "Statements of Interest" blog. I am not sure I will ever revive my old "Great Change" one. I remember a time when I would have thought killing my blog a horrible prospect, but after nearly a year of it being essentially lost to the world I find myself a lot less panicked by the idea of it staying broken. In some ways I'm finding myself feeling grateful that the Great Blog Breakdown is forcing some simplicity -- it's something of a relief not to have to keep it alive too. My current thinking is to clean up and repost some of my favorite posts from it here and then let the rest fade away. I'm finding myself feeling surprisingly at peace with that idea.

In the meantime I do expect more tweaking will need to occur, and I will do my best not to have it destroy the blog that's left in the process. The biggest project will be to try to get a grip on the comment situation. One of the reasons I stuck with MT, instead of fleeing for the greener pastures promised by WordPress, is that the world's best anti-spam plugin exists only for MT. However, that may only be MT 4.x, and I'm on 5.x, so until I figure out if I can port it over, or find another solution, comments are off until I can deal with spam attacks. I do welcome feedback, though, so please feel free to email me and I can post updates to my posts if necessary. And if MT doesn't break again...

There's a lot we can learn about Flash from French, including why Apple is misguided in banning it from its devices. Steve Jobs complains Flash is old and it's closed, which, at least to some extent, is true on both counts. Of course, we could also say the same about the French language, but our world would be a lot poorer if we were to ban it too.

In 2001 the World Intellectual Property Organization (aka "WIPO") thought to declare the 26th of April as World Intellectual Property Day. Oh sure they claim it was ostensibly:

"to further promote the awareness of intellectual property protection, expand the influence of intellectual property protection across the world, urge countries to publicize and popularize intellectual property protection laws and regulations, enhance the public legal awareness of intellectual property rights, encourage invention-innovation activities in various countries and strengthen international exchange in the intellectual property field."

But all that was really a cover for WIPO's true intention to make the world celebrate one of the finest intellectual property lawyers ever to walk the Earth: me. Really, why else would they have chosen my birthday as the perfect occasion for their so-called "IP celebration"?

Of course, as long as WIPO continues to be coy about its true intentions, we might as well celebrate some intellectual property today. Thus a perfect host for this week's Blawg Review was Jeremy Phillips at his IP-focused IPKat blog. Not all the posts he reviews this week are necessarily IP-related ones, but he did kindly include a link to my Blawg Review covering the 300th birthday of the Statute of Anne.

Clearly WIPO's not the only one who recognizes my awesome IP skillz…

I was asked to write a Blawg Review celebrating the 300th anniversary of the birth of the Statute of Anne. It may instead be more appropriate to mourn its death.

Obviously the Statute of Anne, having been put in force 300 years ago, almost to this day, is no longer good law in any jurisdiction. In fact, almost immediately after it was enacted it began to be transformed. But it stands as a turning point in the history of English law-based systems by being the first true instance of copyright law as we've come to know it. Prior to the Statute of Anne, the privilege to publish was invested by the monarch in just a handful of companies who had an exclusive monopoly on all publication. Nothing could be printed that the Stationers’ Company and its select few brethren did not deign to print, and they were endowed with police powers to enforce their total control of the market for printed works.

Clearly such total power over the creation and dissemination of written works would cause a politically restless populace to bristle, and Parliament eventually acted to wrest the Royal Privilege to publish from this cabal and restore it to the population at large. It is thus bitterly ironic that today, almost exactly 300 years later, the English Parliament stands ready to do the exact opposite and restore total control over the creation and dissemination of work to a new generation of monopolists.

What makes it so ironic is, of course, what has long been forgotten: that the Statute of Anne was passed as “An Act for the Encouragement of Learning.” The intent of the copy right it created was always to stimulate the dissemination of knowledge. Now, three hundred years later, we have the ultimate disseminator of knowledge: the Internet, yet in England -- as well as countless other countries -- copyright law is evolving to stop the spread of information -- the exact opposite effect.

But its project has not yet succeeded, and the Internet is so far still able to provide a wealth of information, a small portion of which this Blawg Review will highlight as I explore the premise, promise and problems of the Statute of Anne and its legacy.

It's difficult, as a non-Russian speaker, to fully educate myself about Yuri Shevchuk and his music. My inability to even type in Cyrillic makes the Internet searches particularly fraught. Fortunately I can at least read basic Cyrillic, and with cutting-and-pasting I can enter names and titles into search engines. ("Юрий Шевчук" = Yuri Shevchuk; "ДДТ" = DDT.) As for fully understanding what I get back, GoogleTranslate is often helpful, if not 100% accurate, in getting the gist of what was being said or sung. Plus I have a year of college Russian to fall back on. In fact, it's been interesting: doing all this Internet spelunking to find out more about the man and his music has caused me to dust off my textbook and dig out long-buried memories of grammar and vocabulary. Indeed, so enthralled and engaged am I by what I've found so far, it's even motivating me to renew my Russian studies, just so I can understand what he's been saying!