Sep 052018
 

I’ll begin with a disclosure: I tend to vote blue.  I don’t like my fellow Americans going hungry, or having to choose between being ill or being bankrupt (or both), or not having control over their bodies (especially if they’re women).  And unfortunately the Democrats have been the only game in town to reliably share these values.

At the same time, while I lean blue, I’m not deaf to red.  I can hear the merit to many things Republicans have to say, particularly to the extent that they counsel government restraint and fiscal responsibility.  Even when I don’t agree with their full conclusions, I can still respect the value of their input.  And I have no problem with advocating for more reddish policies when I think they would ultimately be more effective in actually achieving liberal values than those that are more bluish, as often is the case.

Which is why, even though I was disappointed in the choices of Gorsuch and Kavanaugh for the Supreme Court, I have not been panicked.  True, each of these judges have, at times, espoused ideas that gave me pause. And I worry that they lack enough empathy for others’ lived experience to understand how the law they define may or may not actually be just.  But at the same time, both are educated, intelligent, thoughtful jurists, before whom equally capable lawyers can advocate to bring about the judicial results that will best preserve liberty for all.

Which is also why I say the following: as a credible jurist, Judge Kavanaugh should withdraw his Supreme Court nomination.  The power of the president to award a life appointment in the nation’s highest court presumes that this power was derived from elections that were free and fair.  Yet today there is ample reason to doubt that the last presidential election met these criteria and that the exercise of this appointment power legitimate. Continue reading »

Apr 032017
 

As the nomination of Judge Gorsuch for the vacant seat on the US Supreme Court continues to move forward, I find myself, as someone who generally characterizes herself as liberal and who tends to “vote blue,” torn.

Given my policy predilections there are in fact some significant reasons to favor his nomination. In particular he seems willing and able to clip the wings of government power when it tries to act beyond its authority. In light of a presidential administration that seems inclined to flex its muscles far beyond the bounds of how the Constitution permits it to, those sorts of libertarian leanings could be an important check on executive abuse, abuse that often targets liberal values.

On the other hand, although his jurisprudence on the subject is thin, miscellaneous comments he’s made about reproductive freedom make me concerned that his notion of individual liberty does not extend to a woman’s right of self-determination over her own body. Similarly, the hearings suggested that he may lack sufficient empathy for the lives his jurisprudence will touch. While I don’t generally agree that all liberal policies are necessarily a good idea, or constitutionally permissible, the intent behind them has always struck me as inherently valid and consistent with what it takes to form this more perfect union. Too much pushback against these policies, particularly when rooted in obliviousness to how Americans of differing backgrounds find themselves needing to live their lives, will not lead to liberty and justice for all.

And yet Gorsuch is educated, capable, and presumably persuadable. He is not a rabid ideologue. Thus there remains the concern for what might happen if his nomination is rebuffed and the next candidate put forth is.

It is hard to know how to counsel Democrats to proceed. There is a significant risk in rejecting him. On top of tempting an even worse candidate now, the mechanics of resistance, of pushing the filibuster and daring it to be destroyed, may remove it as an option to use against a worse candidate in the future. On the other hand, there’s no guarantee that it couldn’t be destroyed later, for that worse candidate.

Furthermore, Democrats still have two significant structural concerns about proceeding with Gorsuch’s appointment, concerns apart from qualms about his jurisprudence and that can’t simply be dismissed. Continue reading »

Feb 092017
 

Yes, I know I read judicial decisions for a living, and as someone practiced in it my notion of whether reading one is “easy” may be different than someone who has never read one. But the Ninth Circuit’s decision on the immigration Executive Order is remarkably well-written and walks clearly through each and every issue before it. In fact it is so well-written that everyone, lawyers and non-lawyers alike, should be able to read it and understand what they are reading. And it’s of such importance that everyone should try to, so that when people debate and discuss it in the coming days everyone will be able to have an informed opinion about it.

What therefore follows is a guide to reading this decision, a roadmap that explains what you are reading to help make its pages seem less intimidating. Go on and give it a shot. The decision is a little long, but there’s not too much legal gobbledygook, and what there is I try to translate below. Continue reading »

Jun 202016
 

In light of today’s Fourth Amendment-eroding Supreme Court decision in Utah v. Streif, and Justice Sotomayor’s scathing indictment of it:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting
you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

I thought I would repost something I wrote in law school about an earlier Supreme Court decision, Hiibel v. Sixth Judicial District Court, that ran roughshod over the idea that people might have a constitutional right — and need — to refuse to identify themselves to the police. Given, as Justice Sotomayor notes, that such an identification can lead to other incursions on one’s liberty I think it’s worth remembering some of the earlier jurisprudence that has brought us to where we are with this case today.

(Originally posted 3/23/04. I’ve edited the writing slightly now to make sure the point I was trying to make back then are more clearly conveyed now, but I have not otherwise edited it for substance. While today I would tend to frame my legal analysis slightly differently, I think the rough take of a 1L still captures valid concerns that today’s ruling exemplifies and exacerbates.)
Continue reading »

Jun 052014
 

The Bluebook. For non-lawyers unfamiliar with it, it’s a guide to a standard system of citation formats that legal practitioners often use in their court filings and academic legal writings.

Unfortunately, the Harvard Law Review claims copyright over it and has been using that claim to threaten others who might want to build tools implementing this citation system. Theoretically, the Harvard Law Review may legitimately have a copyright interest in aspects of the Bluebook book, such as the text explaining how to use the citation formats correctly.  But as for the citation system, this should not be copyrightable. See 17 U.S.C. Section 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

However, in light of the recent ruling by the Court of Appeals for the Federal Circuit finding copyright in software APIs — something that should have been similarly precluded by Section 102(b) — I mused in a tweet:

It would be an absurd result contrary to the language of the statute and represent a fundamental change in the goals and legitimacy of copyright law, but under the Federal Circuit’s reasoning it would be a logical outcome.

It would also be the height of hypocrisy. For the Harvard Law Review to be able to claim infringement it would need to show that the claimed IP is unique to it. And it can’t, at least not for all citation forms. Take the system for citing blogs, for instance. The most recent edition of the Bluebook says that this would be the correct format to cite this blog post:

Cathy Gellis, The Bluebook Stole My IP, STATEMENTS OF INTEREST (June 4, 2014), http://www.cathygellis.com/soi/2014/06/the-bluebook-stole-my-ip.html.

See Rule 18.2 in the 19th Edition. However, the 18th Edition prescribed something completely different (see Rule 18.2.4):

Statements of Interest, http://www.cathygellis.com/soi/ (June 4, 2014).

Which is, of course, a completely useless citation format. It doesn’t indicate author, it doesn’t indicate post title, it doesn’t indicate URL (which one needs to be able to search the Internet Archive for when online materials disappear).  It’s complete garbage. Which is why years ago I publicly declared it to be a stupid citation method and recommended that everyone instead cite blogs via a completely different approach.  See the first comment appended to this 2007 post (Christine Hurt, Bluebook Pet Peeves, THE CONGLOMERATE (March 13, 2007), http://www.theconglomerate.org/2007/03/bluebook_pet_pe.html#c63110048):

1. Posted by Cathy on March 13, 2007 @ 9:22 | Permalink

It’s weird how the Bluebook form plays up datestamps and plays down author’s names. I’ve suggested that instead blogs should be cited just like articles are cited. So, for instance, instead of this:

Susan Crawford Blog, http://scrawford.blogware.com/blog/ (Apr. 27 2006 22:05 EDT).

which would completely ream someone like Howard Bashman, whose name is not part of his blog title or URL and therefore would never show up in the cite, it should be

Susan Crawford, Onward, SUSAN CRAWFORD BLOG, Apr. 27, 2006, http://scrawford.blogware.com/blog/_archives/2006/4/27/1917067.html.

I can think of few instances where that form wouldn’t work. Well, ok, I can think of one: linking to a subjectline-less post on a teenager’s MySpace page. For that, the original Bluebook form would probably be better. It’s just kind of sad, though, that the Bluebook is keying its recommendation to that particular form of electronic media and failing to recognize the tremendous scholarship that lies out there on proper blogs and allowing us to effectively capture a reference to it.

This comment referenced this 2006 post on my now-defunct law school blog (Cathy Gellis, The Bluebook on Blogs, THE GREAT CHANGE: TURNING CATHY INTO A LAWYER (Apr. 30, 2006), available at https://web.archive.org/web/20070330030551/http://www.cathygellis.com/mt/archives/000765.html), and was then referenced at this post by Howard Bashman (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, 3:20 PM), http://howappealing.law.com/031507.html#023356), which I then cited to at this post (Cathy Gellis, Rumors of Howard Bashman’s reaming have been greatly exaggerated, THE GREAT CHANGE: TURNING CATHY INTO A LAWYER (Mar. 15, 2007), available at https://web.archive.org/web/20070322060558/http://www.cathygellis.com/mt/archives/001037.html), and he responded to here (Howard Bashman, “Rumors of Howard Bashman’s reaming have been greatly exaggerated,” HOW APPEALING (Mar. 18, 2007, 5:54 PM), http://howappealing.law.com/031807.html#023445).

With just a few tiny punctuation differences, the procedure I recommended for citing blogs is just what the 19th Edition now requires.  But note that I recommended citing blogs this way back in 2006, whereas the 19th Edition of the Bluebook wasn’t copyrighted until 2010, so that’s a hell of a lot of prior art showing how my innovation for how to cite blogs pre-dates any claimed by the Harvard Law Review. In fact, it looks like, if the Harvard Law Review is correct that citation formats are protectable intellectual property, that they are actually infringing on my IP.

But, hey, I’m easy. Tell you what, Harvard Law Review: if you don’t want any trouble with me, stop making trouble for the Carl Malamuds and Frank Bennetts of the world who are just trying to make it a little easier to promote the progress of arts and sciences for everyone.

Otherwise, just to be clear…

Dear Carl Malamud, Frank Bennett, and anyone else who would like to use my blog citation format EXCEPT THE HARVARD LAW REVIEW: you have my permission to do so.

May 112014
 

Warren Agin’s blog post on the survivability of contracts during bankruptcy prompted me to resurrect this blog post I had written on my law school blog during my semester studying in Germany.

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 ropes to work, cutting one strand will not necessarily cause the whole rope to be cut. (This separate strand-cutting is known as the principle of abstraction.) In other words, just because one contract fails does not mean the entire deal fails too.

To a common law American, this situation may seem strange. If one of those strands gets broken, how can the rest remain? We generally see each strand as a condition necessary for the contract to retain its overall enforceability. For instance, if the ownership of the bargained-for good has been transferred, but the money has not been paid, how can the party who received the good still keep it? Under American contract law, he couldn’t. But even under German law he likely couldn’t either, although via different legal reasoning than American law.
Continue reading »

Apr 142013
 

I’ve always been a committed fan of free speech. More than a fan, actually: it was something I believed in fighting for.

In my previous career as an Internet professional I became more and more concerned that when it came to speech taking place over the Internet, free speech values were too easily being compromised. I went to law school in order to put myself in a position to do something about it. So when I saw the Popehat Signal seeking a lawyer’s assistance to defend someone’s speech, I knew I had to answer the call.

Continue reading »

Apr 092013
 

Both Ken @ Popehat and “Gideon” at his blog have posts on the position reporter Jana Winter finds herself in. To briefly summarize, the contents of the diary of the alleged Aurora, CO, shooter ended up in her possession, ostensibly given to her by a law enforcement officer with access to it and in violation of judicial orders forbidding its disclosure. She then reported on those contents. She is not in trouble for having done the reporting; the problem is, the investigation into who broke the law by providing the information to her in the first place has reached an apparent dead end, and thus the judge in the case wants to compel her, under penalty of contempt that might include jailing, to disclose the source who provided it, despite her having promised to protect the source’s identity.

In his post Gideon make a compelling case for the due process issues at stake here. What’s especially notable about this situation is that the investigation isn’t just an investigation into some general wrongdoing; it’s wrongdoing by police that threatens to compromise the accused’s right to a fair trial. However you might feel about him and the crimes for which he’s charged, the very fact that you might have such strong feelings is exactly why the court was motivated to impose a gag order preventing the disclosure of such sensitive information: to attempt to preserve an unbiased jury who could judge him fairly, a right he is entitled to by the Constitution, irrespective of his ultimate innocence or guilt, which the police have no business trying to undermine.

Ken goes even further, noting the incredible danger to everyone when police and journalists become too chummy, as perhaps happened in the case here. Police power is power, and left unchecked it can often become tyrannically abusive. Journalists are supposed to help be that check, and when they are not, when they become little but the PR arm for the police, we are all less safe from the inherent danger that police power poses.

But that is why, as Ken and Gideon wrestle with the values of the First Amendment versus the values of the Fifth and Sixth the answer MUST resolve in favor of the First. There is no way to split the baby such that we can vindicate the latter interests here while not inadvertently jeopardizing these and other important interests further in the future.  Continue reading »