All legal posts: January 2008 Archives
In recent weeks Kirsten Wolf, an alum of my legal alma mater, Boston University School of Law, kicked up some dust by complaining how law school was totally not worth it. She raises valid points; it clearly doesn't seem to have been worth it to her, nor is it likely to be worth it to lots of other people for many of the same reasons.
The truth is that law school clearly contains several manifest defects (e.g., immense cost, too often disproportionate to the amount of financial benefit it can provide afterwards, and pointless competitiveness, which too often wastes students' actual talents, etc.), which really should be done away with. That said, it's clearly foolish when people go to law school for lack of any sort of better idea of what to do with their lives. These are the people who will be most gravely injured by the experience's shortcomings. I therefore agree wholeheartedly with what Susan Cartier Liebel wrote:
There is only one moral to Kirsten Wolf's story: understand what it is you are trying to accomplish by going to law school and the short and long term financial and psychological costs associated with the undertaking. There are no excuses for being Alice in Wonderland anymore. There is too much information circulating today about the trials and tribulations of law school, the debt, and employment opportunities for you to remain ignorant and whiny.
This is definitely a reasonable point. Of course, I may be particularly partial to Ms. Liebel for having cited me earlier in her post as providing a counterpoint... In fact, a counterpoint as an alum of the exact same law school.
The Electronic Frontier Foundation (and others) are spearheading a campaign to protest bills in Congress that would give retroactive immunity to the telephone companies who helped the government eavesdrop on ordinary people's conversations. We're not speaking about tapping those phone lines of people who were under investigation, because in those instances the government could have gotten warrants to tap them. We're talking about ordinary, innocent Americans for whom no warrants could be gotten -- and none were. Despite Fourth Amendment principles protecting people's privacy, and a Wiretap Act that protects the privacy of phone calls specifically, the government went ahead and invaded that privacy by enlisting the phone companies to install bugging equipment within its central switching apparatus. Instead of just tapping the one line of someone under suspicion, the government tapped everyone's lines, whether they warranted suspicion or not.
Lawsuits are pending against these phone companies for their illicit tapping -- the Wiretap Act is clear about when phone companies may intercept phone conversations, and it clearly doesn't apply to what they did -- so under pressure from the Bush Administration, who had asked for the spying, Congress is considering passing a bill that would retroactively exonerate the phone companies for their illegal interceptions. Thus the campaign, to express outrage at such a prospect. The campaign is designed to put a human face on the situation, to remind Congress that the people spied upon were not some abstraction but real people, who up to now were entitled to their privacy. And so it has solicited pictures from those who were spied upon people (in other words, everyone), which have been posted to a flickr stream. (See if you can find mine.)
This situation is a story itself, but I wanted to juxtapose it against another, similar story. Recently I wrote about plans by some major ISPs to start sniffing all the network traffic they carried for copyright violations. Even if the project of policing for copyright violations were actually possible for an ISP to do (which it's not, for how are they to know whether something is copyrighted, or whether the person sending it is not actually entitled to do so, etc.) it represents the similarly nightmarish scenario that the people who provide a communications network will commit the wholesale interception and monitoring of every bit of people's communications. Private communications. Communications that no one has any business receiving except those who are intended to.
No, this is not some abdication of my feminist, independent spirit. It's the result of some musing that led to the realization that there really isn't anyone in my life I can truly confide in. Sure, there are plenty of people I completely trust, but none of these relationships are such that someone couldn't later try to discover the contents of my conversations with them. I don't mean that any of these people would freely blab about what we talked about if they were asked; I mean that they could legally be compelled to do it.
There are few people one can truly confide in without worrying about possible compelled disclosure later on. Though the examples vary slightly from jurisdiction to jurisdiction, typical examples of confidential relationships include those with lawyers, therapists, and clergy. Of course, the first two relationships usually cost money to establish and maintain, and within all of these professional relationships the range of topics you might be able or inclined to discuss is probably narrower than the full scope of what you might want to talk about within the more natural relationships you have with emotional intimates like friends or family. However, no matter how close you might be to any of these friends and family, your relationships with them are legally vulnerable. The only exception is a spouse, as only with spousal privilege can a relationship with an emotional intimate be protected against forced disclosure.
Hence the conclusion that I need a husband. Not today of course; there's nothing on my mind that would be of any interest to any adverse party, I don't think. But I did realize that it would be good to have someone to talk to with whom this would never be a concern. Thus the need for a husband, an emotional intimate in whose confidence I could truly be confident.
While the concern is hypothetical for me now, I can see how for others it could be a big deal, especially for people who do their best thinking out loud by bouncing their decisions off of someone they trust. If there's any possibility that these decisions could lead to legal liability - which, given today's litigious society could happen for just about anything - then people with spouses are much better off than those without them, having the benefits of both less liability exposure as well as the ability to speak with the greater candor that privileged communication enables. Or, conversely, the people without spouses are at a greater disadvantage than those who have them. While married people get a legally-protected confident built into their lives, unmarried people do not, and it could matter.
Perhaps we can say this is a perfectly fine result, that people who do not choose to marry should not have all the same benefits as those who do. But that ignores the reality that many people can't marry their emotional intimate, or that some people are not so lucky in love as to ever have an emotional intimate they could possibly marry. It further essentially forces those who might otherwise not have been so inclined to marry, simply so they can get the equivalent benefit of a protected confidant.
So do we really want to say that this is a perfectly fine result? While we wouldn't want all relevant testimony to be locked up, it may not advance society to deprive so many people of the benefits of a truly candid relationship with a confidant. Or, worse, to only allow this privilege to some.
