Lawyers (and Judges) Doing Good

It's pretty easy to get cynical about the law. Almost any recent volume of the Supreme Court Reporter can do it.

So here's a palate cleanser: Kentucky Supreme Court recognizes nonbio mom in stunning opinion.

Law & The Large Hadron Collider

I seriously considered writing an Administrative Law final exam question based on these facts, so I was delighted to see the publication of Eric E. Johnson's article, The Black Hole Case: The Injunction Against the End of the World, 76 Tenn. L. Rev. 819 (2009).

There's a handy summary at Technology Review: Blogs: arXiv blog: The Case of the Collider and the Great Black Hole.

Don't forget to check the RSS feed: Has the Large Hadron Collider destroyed the earth yet?

Category: Law: Everything Else. And I do mean Everything.

I Predict this Bill Will Be Really Popular

Bill would lower volume of loud TV commercials.

Do commercials get louder in recessions? In any case, while there are undoubtedly bigger fish for Congress to fry, this is a good idea for those not fast-forwarding on a DVR.

Peition to Improve PACER

A group of law librarians at Stanford Law Library have drafted a very short petition directed at the Administrative Office of the US Courts to improve PACER (Public Access to Court Electronic Records), and you can see it (and sign it) at Improve PACER - The Petition Site:

We ask the Administrative Office of the U.S. Courts to improve PACER by enhancing the authenticity, usability and availability of the system.

We the undersigned, urge the Administrative Office of the US Courts (AO) to make the following changes to the PACER system:

For verification and reliability, the AO should digitally sign every document put into PACER using readily available technology.

PACER needs to be much more readily accessible if it is to be usable for research, education, and the practice of law. Improved accessibility includes both lowering the costs for using PACER and enhancing the web interfaces.

Depository libraries should also have free access to PACER.

This is a great idea, and deserves support.

Law Student Claims Acceptance of Unilateral Offer

Via Dave Hoffman's I'll Pay You $1,000,000 if this Blog Post Is Wrong, a link to this casebook-ready complaint in a unilateral offer and acceptance case…with a criminal law angle. And the plaintiff is a law student.

Carlill v Carbolic Smoke Ball Company, anyone?

Why Aren't Hardware Limits on Netbooks an Anti-Trust Violation?

Continuing on today's theme of asking dumb questions about areas of law I don't know enough about, here's a question about anti-trust law, spurred by the news that Administration Plans to Strengthen Antitrust Rules.

Why isn't this, which no one even attempts to hide, an anti-trust violation???

Basically, Microsoft will only allow netbook makers to load XP on machines that are a touch on the slow side, and don't have quite enough RAM — and have been crippled to prevent users from increasing it.

PC makers must limit screen size to 14.1 in. and hard-drive capacity to 160GB. Ultralow-cost PCs with touch screens will also be eligible. Earlier terms set in April did not allow touch screens at all and limited screen sizes to 10.2 in. and hard-drive capacity to 80GB. The processors are still limited to a single-core chip running at no more than 1 GHz, with memory limited to 1GB of RAM.

Why isn't this illegal? Don't the anti-trust laws prevent a software maker with a dominant position from dictating hardware to pc makers in order to protect the market share of a different product?

Then again, it may be wrong to blame Microsoft for what may actually be a case of collusion with the hardware people:

The goal of the program is apparently to limit the hardware capabilities of such PCs so that they don't eat into the market for mainstream PCs running Windows Vista, something both Microsoft and PC vendors would want to avoid.

That sure sounds like the sort of collusion I thought the anti-trust laws prevented. Everyone is being so open about this, I have to assume that there's a reason why it's legal. I'm just wondering what it could be.

Legal Background to AIG Bonuses

There's a very interesting contrast between this news story, Cuomo Says Some A.I.G. Bonuses Will Be Repaid and the legal opinion AIG got on March 16, 2009 regarding its obligation to pay the bonuses (source: the American Lawyer).

This letter is going to be the fodder for a lot of law courses. The question it answers is artfully narrow; what it leaves out, and why it leaves it out, are fascinating issues that will engender many discussions in Professional Responsibility and Corporate Law.

Obama DoJ May Revive Anti-Trust Enforcement

I found this blog posting by Jamie Love to be very interesting — Knowledge Ecology Notes » Meeting at DOJ on the Ticketmaster /Live Nation merger — especially if its optimism turns out to be justified.

There were several interesting things that came out during the 90 minute meeting. One was that the DOJ clearly understood that the opposition to the merger would not be satisfied with a few divestitures, and this was really an up or down decision for the merger as a whole.

One early question put to us was, would consumers be better off with two vertically integrated companies, rather than one (a not too hypothetical case of TM and LN vertically integrating both promoting and ticket sales). This was not a difficult question for anyone.

My own take was the DOJ is willing to stop the merger, and is devoting resources to build a case against the merger.

This isn't anywhere near the most important merger in history, but could be a major sign of things to come.

Updates on Sex/Race Bias Suit Against UF Law

Some updates to my previous post, UF Law Professor Files Sex/Race Discrimination Lawsuit:

• Paul Caron has the most extensive updates, including a link to a public email from Florida Dean Bob Jerry, which says, among other things,

  At this time, I am at liberty to say that the allegations of discrimination in this case are unfounded. We will be responding vigorously to this complaint, and we will provide a copy of our response when we do. There are important facts with bearing on this case that will come out when we submit our response.

• Earlier, in Former Florida Law Prof Comments on Racial and Sexual Discrimination Lawsuit Against School and Dean Prof. Caron wrote, “Ms. Russell-Brown has sent me the following clarification:”

  I just wanted to clarify one point for your blog that was not covered by the National Law Journal article, but which is addressed in my complaint.
  
  I went on leave from the UF College of Law in August 2004, in order to meet the 2-year residency requirement for a DPhil in public international law at the University of Oxford (UK). It was while I was overseas that I felt more comfortable, as a “tenure-accruing” faculty member, speaking up about some of the statements and/or comments that I was hearing. I returned from leave back to Gainesville in January 2007, which is when I began to experience the difficulties resulting in my departure by the end of that year, December 31, 2007.
  
  However, while I was on leave and at Oxford for my doctoral studies, from August 2004 until December 2006, my “tenure clock” stopped, along with my publication obligation, and was “re-started” when I returned to academic service at the UF College of Law in January 2007. Consequently, my complaint does not allege that I was “passed over” for tenure consideration, in the sense of being denied tenure, but rather that I was not allowed to continue in my “tenure-accruing” position starting from January 2007, until the end of my “tenure probationary period” in 2009-2010 - that my “tenure clock” was unlawfully stopped on December 31, 2007, in retaliation for my disclosures, and I was not allowed to be considered for tenure in 2009-2010, as UF faculty regulations provide.

Other updates of note:

• FeminstLawProfessors, Student Describes “Black Exodus” at U Florida Levin College of Law
• FeminstLawProfessors, More on Racial Discrimination at U Florida Levin College of Law

UF Law Professor Files Sex/Race Discrimination Lawsuit

Paul Caron has the details in TaxProf Blog: Former Florida Law Prof Files Racial and Sexual Discrimination Lawsuit Against School and Dean.

The well-written complaint — yes, just one side of the story — makes for ugly reading.

TARP: Let a Thousand Lawsuits Bloom

Alison Frankel writes in the Am Law Litigation Daily, Are Whistle-Blowers Lurking Under the Federal TARP?:

There were few regulations in place when the Treasury Department handed out the first $350 billion. Can the recipients be accused of making false claims when they hardly had to document their claims at all?

Yes, according to a new Fried Frank client alert. The three-page analysis by D.C. partners John Boese and James McCullough points to a letter that TARP special inspector Neil Barofsky recently sent to Iowa senator Chuck Grassley, outlining certifications and documentation that TARP intends to require of all those institutions that received funding. “False certifications,” the Fried Frank alert warns, “have been the basis for FCA claims when they were material to the government's decision to release funds or not to seek return of funds.”

Boese told us that the new paperwork requirements will impose post hoc rules for recipients, heightening their exposure. “Qui tam claims are almost a certainty,” Boese said. “Whether there's liability, that's a different question.”

Fried Frank's client memo also notes that the Treasury Department's interim conflict-of-interest and disclosure rules for contractors and financial agents may mean new False Claims Act exposure for businesses that provide TARP-related services, which are required to report any potential violations to the government.

It might be nice to see some of the hogs at the trough get…well trimmed at least.

Thoughts on the Cabinet With Special Reference to Eric Holder

In Salon, Joe Conason offers his take on The real reason Bill Clinton pardoned Marc Rich. It's by far the most interesting thing I've read about the Holder nomination/confirmation process.

By and large Obama's appointees are smart-to-brilliant technocrats. A few of the nominations seem inspired — General Eric Shinseki to the VA, Steven Chu to Energy, Janet Napolitano to DHS. A few seem odd or high-risk — Dennis Blair as DNI, Hillary Clinton to State, Mary Schapiro to the SEC (huh?).

And then there is Eric Holder. Very smart. Very hard-working. Very experienced. Perfect for the Attorney General job in normal times. But these are not normal times: the AG in the coming administration is going to be faced with a number of unusual challenges involving cleaning up the messes of his predecessors. For example, and just off the top of my head:

• Dealing with inescapable evidence of war crimes by members of the Bush administration
• Dealing with strong evidence of perjury by members of the Bush administration
• Cleaning up the mess in the Justice Department caused by politicized hiring
• Restoring confidence in the politicized US Attorney's office — and re-examining possibly politicized prosecutions (and exonerations)
• Reviewing shoddy and in some cases evil (and secret) opinions of the OLC
• Prosecuting thieves who pillaged some of the other agencies and especially the war effort in Iraq

And lots more besides. These tasks require not just a technocrat, but someone with a strong moral compass, maybe even the capacity to feel outrage. Is that Holder? Some accounts suggest it could be. Others, focusing particularly on his involvement in the Marc Rich pardon, suggest it isn't always.

Conason's account of how the pardon came to be — a response to intense foreign pressure, a bargaining chip in the peace process — suggests that there might have been a reason why even a person of strong principles could have favored the deal. That gives me some hope. Hope is not a plan, but it's something.

Note: I give little weight one way or the other the Obama proto-administration's statements soft-peddling the chances of war crime/torture prosecutions. An administration planning on investigations with an eye to possible prosecutions would, if it were smart, say exactly what Obama has been saying now. A public posture of skepticism pays three related dividends:

1. Signaling, prior to Inauguration Day, that prosecutions are unlikely reduces the chances of preemptive lame-duck pardons.
2. Suggesting prosecutions are unwanted removes any defense of vendetta/political interference were there to be a trial.
3. Suggesting prosecutions are unwelcome allows a hypothetical future Obama to allow the prosecutions to go forward more in sorrow than in anger, 'due to the overwhelming evidence'.

I'm not saying that I think this is in fact what they are planning; if you asked me, the odds are they actually mean what they say. Which is why the extent to which Holder is a man of steely principle as well as a great lawyer and an über-technocrat is so important.

Mr. Dennis Webb Seeks Your Advice

When you have an online web presence, you get asked all sorts of things.

But this was a new one, which I reprint with the permission of Mr. Dennis W. Webb of Fort Worth, TX.:

I realize you're probably very busy, so I'll get right to my problem. Tomorrow I'm to begin writing summaries of a local lawyer's court cases. (Sorry, I'm not even sure what this is called.) I've read your “Legal Writing Tips,” which seems to be straightforward advice. Can you think of anything else that may be useful in my first day on the job?

Thanks.

Got any advice for Mr. Webb?

The Greatest Defendant

At last! A companion case to US ex rel. Mayo v. Satan and His Staff. The Omaha World-Herald reports,

Judge Marlon Polk threw out Nebraska Sen. Ernie Chambers' lawsuit against the Almighty, saying there was no evidence that the defendant had been served. What's more, Polk found “there can never be service effectuated on the named defendant.”

Contrast this result to the famous Jewish story about the Rabbis sent to a concentration camp who decide to put G-d on trial for allowing the Holocaust to happen. Not subject to the FRCP, they hold a trial on the merits, and find the Defendant guilty of abandoning them and of allowing this great evil to happen.

And then, after the trial was over, they said evening prayer.

My Comments to the Florida Courts Travelling Road Show

I don't know how well they publicized yesterday's meeting in Coral Gables (see Florida Courts Hearing on the Future in Coral Gables Tomorrow), but it wasn't all that well attended — not much more than 20 people. But the presentations were fairly interesting.

I had planned to hold my peace, as it seems to me that there are already court committees working on all the major judicial tech issues (and, from what I can tell, doing a very good job of it too), but given the shortness of the queue I figured I might as well make a plea for three small things I'd love to see the Florida Supreme Court do.

1. Mandate web-friendly citation forms and document formats for all state judicial opinions. This would include web friendly file naming, formatting, and paragraph numbering. This would cost almost nothing.

2. Provide law clerks for the trial court judges (this would require an appropriation from the Legislature) — most states have them, our appellate courts have them, but our hard-working trial court judges don't get their own law clerks. (Disclosure: this proposal would create more jobs for our graduates, but I think it's a very good idea on its own merits — judges who are in court need the back-office help.)

3. (This is a pipe dream) Remove unreasonable barriers to entry of lawyers who move here from out of state. Florida's rules are an archaic barrier to entry in a national economy and globalized world. Unlike just about every other state, there are no provisions for experienced lawyers to waive into the Florida bar. Worse, the application process for experienced lawyers requires so much paperwork that it would be struck down as a barrier to entry if the anti-trust law applied. I know the bar is against this, but I think it would serve the public interest.

The panel took notes on the first point, agreed vigorously if not particularly optimistically with the second, and were polite about the third — but I'm not holding my breath.

You can make your own comments in writing by Nov. 1, to:

Task Force on Judicial Branch Planning
Office of the State Courts Administrator
Strategic Planning
Florida Supreme Court
500 South Duval Street
Tallahassee, Florida 32399-1900

The First Candidate to Denounce this Wins the Election

Zero tolerance gone mad.

Boing Boing, Fourth grader suspended for using broken pencil sharpener. Note that the “use” was his trying to sharpen a pencil, not threaten someone.

One Cheer for McDonalds

I am no great fan of McDonalds — I don't think I've been inside one more than twice in the last decade — but I think they deserve praise for this letter responding to the threat that has now matured as this boycott campaign.

(found via Good as You, AFA will try to tarnish Golden Arches)

Note that I support the right of people to organize boycotts against companies whose policies they don't like, indeed celebrate it as a valued form of citizen activism. And I also support the right of the rest of us to make fun of misguided boycotts.

Last Day to Submit Claims For Excess Fees on Foreign Credit Card Transactions

Today is the last day to file a claim online (or have one postmarked) in the In re Currency Conversion Fee Antitrust Litigation (MDL 1409) case. You are a member of the plaintiff class if you used a Visa, Master Card and/or Diners Club credit or debit card abroad between Feb 1, 1996 and Nov. 8, 2006.

(See I Am A Plaintiff for more details.)

I took option two, having calculated that I was abroad for 394 days during the relevant period. That's a lot of days.

News from Cell Block C

Susan Crawford, Why Block C matters

Bottom line: nothing is gonna change for some time.

Judicial Humour

From The Magistrate's Blog:

It is reported that after the second time that a mobile phone had rung in the public gallery the Judge put down his pen, and glared across at the flustered-looking owner of the phone. “If that happens again” said His Honour, “you may discover why they are known as cell phones”.

Shops Bring Fake and Inflated Civil Claims Against (non)Shoplifters

Evidence for the hypothesis that modern life in the USA is increasingly Dickensian: Big Retail Chains Dun Mere Suspects in Theft. Incredible. And right here in Florida…

Nobody's Safe

Well, for now, nobody poor is safe. But give them time.

McClatchy, Immigration officials detaining, deporting American citizens:

Thomas Warziniack was born in Minnesota and grew up in Georgia, but immigration authorities pronounced him an illegal immigrant from Russia.

Immigration and Customs Enforcement has held Warziniack for weeks in an Arizona detention facility with the aim of deporting him to a country he's never seen. His jailers shrugged off Warziniack's claims that he was an American citizen, even though they could have retrieved his Minnesota birth certificate in minutes and even though a Colorado court had concluded that he was a U.S. citizen a year before it shipped him to Arizona.

On Thursday, Warziniack was told he would be released. Immigration authorities were finally able to verify his citizenship.

“The immigration agents told me they never make mistakes,” Warziniack said in a phone interview from jail.

It's really worth reading the whole article: no right to a lawyer, no help getting documents, no one believes the documents you get or the witnesses you find, and you have the burden of proof of showing you are a citizen — while in custody.

(spotted via Emergent Chaos, “We have to be careful we don't release the wrong person”)

I Am A Plaintiff

I've just received notice that I'm a member of the class in the In re Currency Conversion Fee Antitrust Litigation (MDL 1409) case. The defendant credit card companies are settling massive claims that they bilked card holders by manipulating fees and exchange rates on foreign-currency purchases. They of course deny everything, but are still coughing up a massive payout — one in which consumers will get actual cash instead of valueless coupons.

The proposed settlement offers me three choices:

1. $25 cash money.
2. Estimate how many days I was abroad in 1996-2006, and get a rebate of 1% of what they guess I spent with my credit card based on some formula they do not disclose. Key to that formula is whether I characterize my travel as sometimes/often/mostly “business,” “visiting friends or relatives,” or “vacation or leisure”. (In fact it was some of each.)
3. Provide detailed receipts of my credit card usage abroad in that period and get 3% back.

Option 3 is out — too much work.

But I think I can figure out how much I was abroad by going over my back calendar files. It was a lot.

Spooky Cases

Contracts: Deptula v. Simpson and Stambovsky v. Ackley.

Civil Procedure: US ex rel. Mayo v. Satan and His Staff.

Understatement Dept.

Law students — please be aware that this is understatement:

Unsurprisingly, caselaw on coverage for inserting boar tusks into anesthetized patients is rather thin.

Actually, the whole article from which this is drawn Can This Pig Fly? How A Dentist Assaulted A Patient And Made A Million Dollars: Part One in a Two-Part Series and especially part two is pretty interesting and will teach you something about insurance law.

Wyoming Law on Appointment of Senators

Recently re-elected Senator Craig Thomas has died.

Here, for the ghoulishly curious, is the relevant part W.S. § 22-18-111, the relevant Wyoming law on how a vacant Senate seat gets filled:

(i) If a vacancy occurs in the office of United States senator or in any state office other than the office of justice of the supreme court and the office of district court judge, the governor shall immediately notify in writing the chairman of the state central committee of the political party which the last incumbent represented at the time of his election under W.S. 22-6-120(a)(vii), or at the time of his appointment if not elected to office. The chairman shall call a meeting of the state central committee to be held not later than fifteen (15) days after he receives notice of the vacancy. At the meeting the state central committee shall select and transmit to the governor the names of three (3) persons qualified to fill the vacancy. Within five (5) days after receiving these three (3) names, the governor shall fill the vacancy by temporary appointment of one (1) of the three (3) to hold the office.

So the state GOP proposes three names, the (Democratic) Governor picks one.

However, if I read the following correctly, the appointed Senator serves only until a special election (held at the next general election) to determine who will fill out the rest of the term:

Any vacancy in any other elective office in the state except representative in congress or the board of trustees of a school or community college district, shall be filled by the governing body, or as otherwise provided in this section, by appointment of a temporary successor to serve until a successor for the remainder of the unexpired term is elected at the next general election and takes office on the first Monday of the following January.

Congressional representatives have their own statute. I presume the next general election is November 2008, but invite correction if there is one earlier.

The Devils Live in the Details

Talk left has found one of the devils in the details of the new immigration reform proposal: Here Come the Detention Camps: Immigration Legislation:

Among the provisions of the compromise immigration bill is one calling for the building of more detention camps.

"No Campaign" Clauses for Actors?

Reading this LA Times story about how Law & Order reruns might have to be pulled if Fred Thompson runs for President made me wonder. If stations are so afraid of having to give equal time for other candidates that they'd rather pull the episodes, then surely it would be economically rational for the studios to put a routine “no running for office” clause in actors' contracts that would apply so long as the reruns are showing?

My question is whether that term would be enforceable: would it be against public policy? Or maybe fall to the same sort of doctrines that disfavor non-compete clauses that last more than a few months to (at most) a couple of years?

Employment law is not my thing, but I bet someone reading this could hazard an answer.

Called for Jury Duty

Approximately 300,000 citizens in Miami-Dade County are randomly selected by a computer each year to be summoned to jury duty for the Eleventh Judicial Circuit of Florida. Summonses are mailed to citizens who possess a valid driver's license or identification card issued by the Department of Highway Safety and Motor Vehicles.

Miami-Dade County has a total population of about 2,370,000; of which about three quarters are over 18, so make that circa 1,778,000 adults. If 300,000 per year are selected for jury duty for the 11th circuit alone (ie ignoring federal court), then a resident's chance of being picked in any one year is almost 17%.

Assuming the chance of being picked was a constant in the past, from an ex ante perspective my chance of NOT being picked 14 years in a row was, I calculate, just over 7%. I know people who've been called three times in that period, which the odds tables tell me would be around the expected mean, but I was the seven-percenter and never got called. Well, my luck (good or bad) changed this week: I have just received my first-ever jury summons.

It used to be that being a lawyer made you ineligible to serve in most parts of the country. That rule is pretty much defunct now, perhaps because there are so many lawyers it shrank the potential jury pool too much, perhaps because the bar is no longer a small club where everyone knows everyone and almost every lawyer would have to be excused anyway.

Like most lawyers, I actually find the idea of serving on a jury somewhat appealing: it's a way of seeing the legal system from a perspective that is usually inaccessible to us. On the other hand, if I'm not going to be selected, I don't find the idea of going down to the court house and sitting around all day in some horrible room with a TV blaring to be at all attractive. And realistically, that's the most likely outcome: as a general rule, lawyers don't especially want lawyers on their juries. On the other hand, I know of at least two colleagues who have sat on juries, so it's by no means out of the question.

The date they picked for me is on a day I teach, so I'm going to apply for a postponement to May, one which the form suggests is routinely granted. Miami-Dade has a one-day, one-trial rule: you turn up once and either you are picked on that day or you don't have to come back until your name comes up again. I'll report back after it's all over.

What a Strange Question

The Law Blog Question of the Day: What’s the deal with lawyers who wear bow ties?

What kind of a question is that?

Bow ties, in addition to being natty, take less storage space in your closet. Plus it is very hard to spill soup on them, reducing cleaning costs (and, given that silk is so hard to clean, reducing the risk of ruining a favorite tie).

And Justice Stevens wears them.

What more do you need to know?

The only times I wear one of those long flappy things are for funerals (bow ties are too cheerful for funerals) and before trial courts (juries, and even trial court judges may have unpredictable reactions).

Is This False Advertising?

I got a letter from my bank yesterday which came in this envelope:

I opened it, thinking I had a bank statement, or worse (since the next bank statement wasn't due). That's what most people would do, I think, if they got a letter from their bank saying in big letters, “Account Information Enclosed.”

But there wasn't any account information in there, not as I understand the term. Instead there was a page of advertising extorting me to use one of the three enclosed check-like documents to get a cash advance on my credit card which is about the most expensive way to borrow money short of a payday loan.

So I've written a letter to the bank to let off steam. Now the questions are, (1) should I send it, and (2) can it be improved? Full text below.

---

February 24, 2007

Kenneth D. Lewis
Chairman, Chief Executive Officer and President, Bank of America
Bank Of America Corporate Center
100 N Tryon St
Charlotte Nc 28255

Dear Mr. Lewis:

I am writing you in the hopes that you will put a stop to a deceptive advertising practice that the Bank of America has adopted.

I recently received a letter from Bank of America with a small representation of the American Flag, and the words “Account Information Enclosed” in big letters on the envelope. Of course I opened it at once — who wouldn't? — but was shocked to find that it did not contain any information about my account. Instead it contained an advertisement encouraging me to borrow money via “checks” that serve as a cash advance drawn on my Quantum MasterCard. This is not “account information” as I understand the term. I've asked many other people, and they all agree that “account information” would mean a bank statement or a notice of some kind such as a charge or deposit record or a change in the terms of the account.

I called customer service at 1 800 692 1564 and attempted to speak to someone about this but was not successful. Customer Service offered to stop sending me the blank checks, which is fine but as I tried to explain to them doesn't really get to my main point: I want to do business with a bank that I can trust, and part of that trust is telling me (and other customers) the truth. I don't think this envelope was truthful. The front-line Customer Service agent then tried to tell me that the checks were “account information” because they were linked to my account. That's so silly that I consider it offensive.

When, after about eight requests, I was finally permitted to speak to a supervisor, the very polite gentleman agreed with me that the marketing was deceptive (he said it made him think of Machiavelli!) and said that if it was up to him, he would change it, but that he didn't have the power to do so. I then asked for the name of a person to whom I could address my concerns, but, like the front-line Customer Service before him, the second-line agent was unable to provide me with the name of any human being at the bank who is responsible for these matters. I was offered a chance to write to a generic address, but declined. I prefer to deal with people who have names and believe that people in organizations should take personal responsibility for their decisions.

And that is why I am writing directly to you.

I'm sure you agree with me that the Bank of America wants to avoid trying to trick people in any way, whether small or large. In this, I am heartened by the strong statement online that appears over your signature at [Long URL]:

At Bank of America, we are committed to upholding the highest standards of corporate governance and ethical conduct in all we do.

In its role as our primary governing body, our board of directors provides oversight of the company's affairs and constantly strives to improve and build on the company's strong corporate governance practices.

Our management processes, structures and policies help ensure compliance with laws and regulations and provide clear lines of sight for decision-making and accountability.

… One way we build and protect our culture is by aggressively promoting our company's core values to associates at all times, as well as our Code of Ethics. We also know that actions speak louder than words. And so, we foster a culture of openness, in which healthy debate is encouraged and associates are expected to blow the whistle on improper activity.

Indeed, I congratulate you on fostering a culture in which even a fairly low-level employee feels empowered to identify this deceptive advertising strategy for what it is, Machiavellian.

I also draw great comfort from Bank of America's Code of Ethics at [another long URL], where you state,

Trust is the foundation on which we build strong relationships with our customers, our shareholders, our communities and one another, and it is trust that enables us to achieve our goals. The responsibility for creating and sustaining trust in Bank of America rests squarely on each of us and the personal integrity we bring to our work.

I am sure you will agree that routinely sending out tens of thousands of letters claiming “Account Information Enclosed” when in fact they have no such thing undermines my (and no doubt many other customers') trust in the Bank of America.

I look forward to your prompt attention to this matter, and trust that you will approach it the spirit of the Bank of America motto, “Higher Standards.”

Yours Sincerely,

Angry Donors Sue Princeton

The heirs to donors of a substantial gift to Princeton are suing, claiming that Princeton has misapproprpirated millions intended for the training of foreign service graduates and other activities supporiting the US Government. In fact, the heir allege, Princeton used the foundation to fund the general activities of the Woordrow Wilson School -- and for some other things too.

The complaint also alleges various types of self-dealing, sloppy record keeping, and failure to observe the necessary formalities -- some of which sound quite damning.

The plaintiffs are running a publicity campaign along side of the lawsuit, and they've built a web site to tell their side of the story. Unfortunately, their legal page is mostly one-sided and doesn't list many of Princeton's replies, which makes it much harder to form a judgment as to the strength of their case. A taste of the reply can be had in Princeton's reply to a motion for summary judement, which basically suggests that the family's own trustees were asleep at the switch, that the charges were mostly fair, and that if there were ways to calculate them that would have made the numbers even higher.

If there's a moral to this story, it's that it pays to observe legal formalities carefully? If either side had done so, this case might never have happened.

Navy Shames Itself

He beat the government in the Supreme Court. He zealously represented his client in an historic case. He's widely considered to be one of the top lawyers in the US. And the Navy thinks Lt. Cmdr. Charles Swift is not good enough to promote to full Commander: Paper: Detainee Lawyer Must Leave Navy.

Commander is equivalent in rank to a lieutenant-colonel in the army; it's a big step up but it's very hard to see this move as merely short-sighted and not as revenge for poking the Secretary of Defense and the Commander in Chief in the eye with a stick. Which was exactly Lt. Cmdr. Swift's duty at the time, and he did it superlatively well.

The Navy, and the country, are much poorer for his piece of spite or stupidity. At least Lt. Cmdr. Swift -- who wanted to stay in the Navy -- will have his 20 year pension and the pick of work in the private sector.

Birds of a Feather

It's a long way from Mary Poppins. Calling them "rats with wings" London Mayor Ken Livingstone tried to get rid of the thousands of pigeons in Trafalgar square by prohibiting the Londoners and tourists from feeding them. This spawned a protest to Save The Trafalgar Square Pigeons, and eventually a lawsuit giving long-time feeders the right to continue to feed the birds but prohibiting casual feeders. (While kind-hearted, this effort does provide further evidence for the critics who say that the British care more about animals than people. Exhibit "A" for this claim is that the society for the prevention of cruelty to animals is enjoys royal patronage, but there is no corresponding royal imprimatur for any group seeking to prevent cruelty to children.) [Update: see the comments for a contrary view.]

Cut to Las Vegas, where the city is declaring war on unsightly homeless people. It hasn't called them rats with feet thumbs [edit because, after all, rats do have feet...], but that's the general idea. Las Vegas has just passed an ordinance banning the feeding of poor people in the parks. Yes, in a Las Vegas park you can give a sandwich to a rich person, but not to the starving.

The ordinance, an amendment to an existing parks statute approved by the Council on July 19, bans the "the providing of food or meals to the indigent for free or for a nominal fee." It goes on to say that "an indigent person is a person whom a reasonable ordinary person would believe to be entitled to apply for or receive" public assistance.

That's America today: banning charity.

A blanket feeding ban regardless of income level would I am sure be constitutional. I leave it to others to parse equal protect law and opine whether the distinction between rich and poor in this rule will survive equal protection review. I suspect that judges will not be inclined to uphold this rule if doctrine permits them to strike it down.

Meanwhile, click here:

Between A Rock and a ... Scissors

David Markus's SDFLA blog is becoming essential reading for local law junkies. The latest entry, however, ranges north to the Middle District of Florida, to bring us this order from Judge Gregory Presnell:

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
Case No. 6:05-cv-1430-Orl-31JGG

AVISTA MANAGEMENT, INC.,
d/b/a Avista Plex, Inc.,

Plaintiff,

vs

WAUSAU UNDERWRITERS INSURANCE
COMPANY,
Defendant.
______________________________________

ORDER
This matter comes before the Court on Plaintiff’s Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.

DONE and ORDERED in Chambers, Orlando, Florida on June 6, 2006.
GREGORY A. PRESNELL
United States District Judge

Bad News for the Republic

Bret Kavanaugh has been confirmed for the DC Circuit. We could do so much better.

A Hypo That Sits Up and Barks

Guesting at Concurring Opinions, Miriam Cherry sets a great contracts hypo, Who Gets to Keep Trover?. (I suppose law profs are among the few who get gleeful about problems like this.)

Note to non-lawyers, the name "Trover" is a lovely touch.

Two Real-Life Stories about Leases

Yesterday was lease story day. First I went down to this wonderful luggage store in Kendall that I've been going to for many years (a bag needed repair after being very badly abused by an airline) and discovered it was closing. Why? The shop next door in the mall's lease is up, and has threatened to leave unless they can have his space. The luggage shop has seven years left on his lease. But it seems the mall management inserted a clause into his lease at last year's renewal that gives the mall the right to unilaterally relocate the store to other, much less desirable (no foot traffic), areas -- perhaps because they knew this demand was coming. The luggage shop owner, who says he trusted the family who runs the mall, had been doing business with them for more than a decade, didn't notice this when he signed the renewal. He says he's moved before to help them out -- but only within the covered part of the small mall, not to the wasteland of the far side, where no one ever goes.

So he went to a lawyer. The lawyer told him he had a slam-dunk case, was certain to win, and charged him $7,000 plus filing fees to file suit against the mall. But after the first meeting with the other side's lawyer, and after cashing the first check, the lawyer warned him that -- although he still thought they would win -- it would cost $100,000 to $200,000 to litigate to the end (a price that strikes me as absurdly high for anything except the very biggest firm litigation). The shop owner decided he couldn't afford it, and is angry he wasn't warned about the huge possible total cost in advance. (I wonder if the lawyer was lying: could it be that he decided he was going to lose the case after all?). He's not real happy about closing. 'It's corporate America in the age of globalization,' he sighed. (OK, he's a luggage guy, not a political scientist.) "It's a change in life; who knows what the next chapter will bring."

It's surprising how disturbing this is: both that an infrequently visited specialist shop I trusted -- they may not have had the lowest prices on the planet, but they had nice stuff at reasonable discounts, and if they said it would last, it would last -- is closing, and that a nice guy got done dirty by the legal system -- in a way that's so obviously painful. That to some extent it's his own fault for trustingly not reading the fine print doesn't help much; it might make it worse. I added my email to the list in the shop to be notified if they open up again somewhere else; I hope they do.

Later that afternoon, we encounter another similar lost-your-lease story. We're at a street fair in South Miami (this is the magical time of year in south Florida when it's very nice out, like spring or fall in normal places, and we have two or three outdoor fairs every weekend). I want to show the family the amusing menu at the new Zen Dog hotdog store that only opened a few weeks ago. Although I haven't eaten there, I think the menu is amusing, and was thinking we might take the kids some day. But it's closed. The windows are papered over. The folks at the shop next door explain that neighboring bank, which owns the land, was planning to build a bunch of town homes on a parcel that includes the shop, and stretches back for two blocks. So they evicted the new Zen Dogs, exercising a development right in the lease that the bank's VP had orally assured the tenants was "just a formality" and could never happen. (It gets better: the bank recenlty dropped the project due to increased construction costs after hurricane Wilma.)

Law on the ground, as in the books: the parole evidence rule rules. (Landlords are not fiduciaries.)

Don't Even Think About It

Via Concurring Opinions, this marvelous piece of refried boilerplate from the AALS Section on Contracts:

IMPORTANT SMALL PRINT LEGAL DISCLAIMER

This web site is a forum for the exchange of information and points of view. Opinions expressed here are not necessarily those of the Section on Contracts or of the Association of American Law Schools, which when you think about it are really only reified abstractions that have no independent existence and therefore can’t really have any "opinions" about anything at all, so we’re not sure why we have to say this. All statements herein are the sole responsibility of the authors, except for any that are inaccurate, irresponsible, tasteless, or actionable, which are solely the responsibility of student editorial assistants who are working as independent contractors and for whom we will accept absolutely no responsibility whatsoever. There are no warranties, either express or implied, for the use of this site. Nothing on this site should be taken as legal advice, since only an idiot would take free legal advice on an important issue from the casual musings of a law professor instead of paying a practicing lawyer who actually knows the law of the jurisdiction you're in. Any disputes arising as a result of your use of this site shall be decided by arbitration under the rules of the International Chamber of Commerce in Japan, unless you happen to be somewhere in or near Japan, in which case it shall be decided in Belgium. Your reading of this provision signifies your assent to all its terms.

Perhaps this is a good time to refer readers to my own personal web site disclaimer? (Reprinted below for your convenience.)

DISCLAIMERS:

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Good Lawyering Makes a Difference

This account of how the Washington Post avoided the legal (and internal) problems that plagued the New York Times over its relations with special prosecutor Patrick Fitzgerald makes it clear that management made a smart call from the first -- and then brought in the right high-octane lawyers who could negotiate a suitable deal.

Thoughts on the Polansky Trial

Lots of people apparently find Roman Polansky's libel victory over Conde Nast to be an odd result. The claim was that Vanity Fair falsely asserted that in 1969, while en route to the funeral of Sharon Tate, his wife, who had just been murdered, Polanski groped and propositioned a Scandinavian model, promising to "make another Sharon Tate out of you." Polanski denied it, in tears, and the jury agreed. (England has generally abolished juries in civil cases but still uses them for libel cases.)

The trial did indeed have several strange features. The first was that the plaintiff was not a nice person: Roman Polansky is a long-time fugitive from US justice, having fled while on bail before sentencing, after admitting the statutory rape of a 13 year old girl. This fact caused the second odd feature of the trial: fearing extradition to the US to serve his sentence were he to set foot in the UK, Polansky was allowed to give his evidence by video. Which of course exacerbates the third apparent oddity of the trial: that it was held in the UK (a country with pro-plaintiff libel laws), when the Vanity Fair, the magazine in which the article at issue appeared, is US-based.

Actually, it's not that strange. Vanity Fair circulates in the UK, so it's fair game there -- and since its sold on newsstands and (I imagine) to subscribers, it's considerably fairer game in the UK than, say, web pages which are delivered for free and by the readers decision to pull a page rather than a publisher's decision to send physical copies to the jurisdiction.

The decision to allow the video testimony is a closer call; I could certainly understand a court saying that if plaintiff has unclean hands he shouldn't come to court. And I'm no great fan of video testimony in general. But idea that the courts should be open to do justice even in the exceptional case where the plaintiff cannot risk being in the jurisdiction has its admirable qualities too.

The least strange aspect of this decision is that Polanski won.

The defense tried to blacken Polanski's name by suggesting he slept around. He admitted it. End of issue: that sort of tactic doesn't work anymore, at least against men. More substantive was the suggestion that a fugitive from justice for statutory rape is the sort of person who can't be libeled -- like (traditionally) a prostitute or (contemporaneously) a war criminal. What overcame that, I suspect, was the seeming cruel falseness of the anecdote, and Polanski's emotional reaction to it.

I began to suspect Polanski might win as soon as I learned the name of the source of the allegation in question: Lewis Lapham.

Yes, that would be the same Lewis Lapham who wrote and published a fabricated summary of the speeches at the GOP convention -- a summary written before the speeches were given, but published after it.

OK, Polanski is not a nice guy. But despite the fancy pedigree...

Mr. Lapham has lectured at many of the nation's leading universities, among them Yale, Princeton, Stanford and the Universities of Michigan, Virginia and Oregon. He is a frequent guest on television and radio talk shows both in the United States and in England, France, Canada, Germany and Australia. He was the host and author of the six-part documentary series "America's Century," broadcast on public television in the United States and in England on Channel Four in the autumn of 1989. Between 1989 and 1991 he was the host and Executive Editor of "Bookmark," a weekly public television series seen on over 150 stations nationwide. Lapham is a member of The Council on Foreign Relations, The Century Club, the Advisory Council to the New School University and Chair of the Board for The Americans for Libraries Council.

... Lapham's credibility as a reliable reporter must surely now be reduced be zero?

After all, Lapham testified that while parts of his story were wrong, like the date, the key allegations were true:

Testifying in a libel case setting Mr. Polanski, 71, against Vanity Fair magazine, which reported the anecdote in an article in July 2002, Mr. Lapham said the incident had embedded itself in his memory.

"I was impressed by the remark, not only because it was tasteless and vulgar, but because it was a cliché," the 70-year-old editor said.

And now, to ice the cake, the model whom Polanski supposedly tried to pick up -- who wasn't called to testify in the libel trial -- says no such thing ever happened.

On balance, this verdict feels like justice. But I fear it will not have the consequences it should. In ye olde days, a man disgraced by being found by a jury to be a less believable witness than a rapist would resign his clubs and go hide out somewhere and take up drink. Now, I suppose Lapham will just write about it. But whoever publishes it better hire a good fact-checker.

---

Update (7/26): Over at the Yin Blog, Tung Yin makes an excellent point:

If Polanski has been libeled, he deserves to be vindicated. But he also deserves to serve his sentence. So a truly just result would have had him testify by video -- because he was in one of our prisons.

I should add that one of the reasons why I think the issue of allowing the extraterritorial testimony is genuinely hard on these facts is that there's zero chance that denying relief might compel Polanski to travel and risk serving his time. Thus, the case for withholding access as a coercive means to compel compliance is weak; the withholding must be justified either as retributive (which is not the UK court's job here) or as somehow beneath the court's dignity. Counterbalancing the latter is the idea that two wrongs don't make a right.

Lessig's Other Battle

Lawrence Lessig and John Hardwicke Fight Sexual Abuse and the American Boychoir School. Awful. Amazing. (Spotted via the increasingly indispensable Ernest Miller.)

Larry Lessig is a brave guy.

.pdf Versions of Official US Reports

This looks useful!

The Volokh Conspiracy - PDF Copies of the United States Reports: Most lawyers and law students know that that the U.S. Supreme Court website posts slip opinions of recent cases. What you might not know is that as the Court publications unit finalizes its slip opinions and eventually compiles them into bound volumes of the United States Reports, it also makes the entire contents of individual volumes of the United States Reports available as individual .pdf files. The service begins with Volume 502 (October 1991), and currently goes as far as Volume 538 (through May 27, 2003). This means that you can download entire volumes of the U.S. Reports and save them to your hard drive for subsequent searching and use offline — with the correct pagination, italics, appendices, charts, and graphs — all for free. Really cool, at least if you're into that kind of thing.

Unbound

It must be fun to teach the kind of students who start interesting new Internet-based law journals.

Somehow I will have to find the time to read Unbound: Harvard Journal of the Legal Left…but maybe not until after I write some exams.

The last weeks of the semester are always such a busy time: so much to do, and less energy than usual…

Brief and to the Point

This motion in Monica Santiago v. Sherwin-Williams Company, posted by Mark A. R. Kleiman, seems too good to be true. And it's funny.

Law at the Sharp End

Jaye Ramsey Sutter (“in a bad mood & telling you about it since 1962”) walks much, much a harder road than I do:

Today the Supreme Court did a good thing, no more death penalty for those who commit crimes when they are juveniles. To hear people discuss it,however, you would think that the Supreme Court took away everyone's Christmas present. For a bunch of Christians, these Americans are strangely pro-death penalty. I am positive that Christ himself would support the execution of juveniles while they are still juveniles. Amen.

I wanted to discuss the opinion with my students. I wanted them to see what an actual opinion looks like. We went up on line in the classroom and saw it. As we talked about what it meant my students opened up about their legal issues and problems.

I was stunned.

One young woman asked about what to do when her boyfriend beat her. Should she call the police from their appartment, should she leave the scene, should she sleep on it and call the next day.

I feel odd discussing the elegance of a Supreme Court decision with its beautiful citations and form when these students experience such violence.

One young man, so full of energy and intelligence asked if his girl friend had a restraining order against him and she walked into their favorite club and he was there, should he leave or should she? I told him bluntly to be a man, don't argue over some childish right to be drinking in their favorite club, and leave. Just walk away. Why don't she have to do that, he begged. Why don't we skip over that part and you be the adult and leave, I replied.

How can we teach the civilization of this Supreme Court decision to people who live with such violence as part of their lives?

I don't think it was a wasted class. I think our textbooks and our curriculum should address the violence that is our students' lives. They asked me who to call if the neighbors are abusing their children. I replied that a call to the police would certainly work and that Child Protective Services would investigate. I told them if they did not call the police they were making the abuse possible because they are aware of it and are doing nothing.

And I'm going to conferences.

The Normans Conquer Lorain County

Eugene Volokh posts an entry on (well, really, against) Legalese in which a judge complains, with some justice, that the Normans have conquered Lorain County, Ohio.

Arafat's Millions: A Great Choice of Law Problem

News reports suggest that Yasser Arafat retains sole control of a large number of Swiss bank accounts, and that his extreme ill health is setting off a struggle to control them. I will leave it to others to opine on the geo-political implications of Arafat's death, and of the political consequences flowing from control of the money.

Instead, in the spirit of professional deformation, I want to speculate about the somewhat hypothetical legal issues of inheritance, keeping in mind that all I know about the subject I learned for the bar exam and then mostly forgot right away.

First, did Arafat leave a will? On this, we have basically no reliable information: Who will get Arafat's millions? / Wife is fighting Palestinian officials for assets, Arab TV reports states that:

According to Al-Jazeera, Arafat had written a will leaving at least some of his fortune to his wife and their 9-year-old daughter Zahwa, but other reports said Arafat has no will, leaving most of his fortune in the hands of Rashid.

I suspect that if in fact Arafat has no will, the question is not nearly that simple if only because to know the disposition of the estate we have to decide what law applies. Here we have a non-Israeli Arab, living in the occupied territories, dying in France, with assets in Switzerland. The courts in the place where the money is will usually have to decide disposition of a disputed asset, but they will frequently look to the law that applies to the estate. Ordinarily, in most countries, the law of the domicile of the decedent will apply, but I have no idea what testamentary law applies in the occupied territories: Is it Israeli law (which would look to Muslim, Quranic law for Muslim decedents)? Is it British Mandate law (which oftentimes incorporated Ottoman leftovers including Quranic elements)? Or have the territories somehow adopted their own rules, in which case one must ask whether the Swiss would recognize them?

If some form of Quranic law applies, then I'm not sure that things look so good for Rashid, especially if there is no will. According to this summary by the International Tax Planning Association,

In Israel, Islamic law is applied to some degree to Muslim citizens¹ in Islamic courts. …

The core Islamic rules of succession, however, are essentially similar in all Muslim countries. A Muslim does not have testamentary freedom: at least 2/3 of his estate must pass in accordance with the rules. The Sunni and Shia rules have some differences (the Shia Muslim may bequeath property to an heir, a Sunni Muslim may not), but the Sunni Hanafi rules apply to a majority of Muslims - including those in Israel. …

Daughters are the main beneficiaries. The wife (or husband) takes a share, as do children, parents and siblings, but no share is given to a son or full brother. Minor children (generally under 15) require a guardian, normally male.

…A will may be valid as regards 1/3 of the estate, and it cannot contain a bequest to a person who inherits under the law - though this rule has been modified in some countries where the Shia view is applied.

There is of course a further wrinkle: if there really are millions upon millions in the Swiss accounts it's easily arguable that much of the funds were held in constructive trust for Fatah, the PLO, or the Palestinian Authority — although deciding which one of these gets how much could be tough. Common law countries are comfortable with the idea of constructive trusts, and my understanding is that concepts with the same effect exist in civil law countries. But whether and how robustly they exist in Islamic law, I simply don't know.

(There's also the issue of what happens if Arafat takes the knowledge of the existence of some of the accounts to his grave without being able to tell anyone. Under Swiss law does the bank have any duty to seek out heirs? They will presumably hear when he's dead, but if the account is fully anonymous they may not (officially) connect the pile of money with Arafat. Does it just sit there? Escheat?)

---

¹ I understand that Arafat is not an Israeli citizen under Israeli law (indeed, he may not even be a legal resident of the territories under Israeli law for all I know). I quote this text as probative of the content of Quranic law, which I gather is more or less the same whether applied through its reception into Israeli family law or by other means.

Play Supreme Court Survivor

Anupam Chander (who is both a blogger and Professor of Law at the University of California, Davis, School of Law) and JD student Ryan Walters have designed a little web site they call the Supreme Court Survivor game. Their objective is “to highlight the importance of the 2004 presidential election to the preservation of civil liberties in this country.”

Anupam, a charming person whom I met at a conference not so long ago, wrote me a nice note asking me to publicize it, so here it is.

There's no doubt that the next President will shape the court for a long time: there are liberal, conservative and fence-sitting Justices who are likely to retire. But, cute as it is, I have to wonder whether this game is entirely in good taste, and if as a pure tactical matter it's the best tool to raise consciousness about this critical issue. It seems to me that there's some danger it might backfire given the Chief Justice's coincidental illness.

Meanwhile, if there's an easter egg in there, I can't find it.

Update: When you tire of that one, and still want a political online game, you can play Enjoy the Draft's Spring Break Fallujah: The Game. I am still stuck on the first level, myself.

He Has Incentive

Sharp-eyed Eric Muller notices something strange:

A Full and Appropriately Speedy Recovery I wish Chief Justice Rehnquist a full and speedy recovery.

On the subject of “speedy,” though, I find it curious that the Court is already telling us that he'll be back at work next Monday, about 8 days after his tracheotomy. Not only is it hard to imagine how anyone could know how the Chief will actually be feeling by next Monday, but the ordinary recovery period for a case without special risk factors or complications is two weeks. And there are reasons to suspect that the Chief's is not an entirely ordinary case. Plus he's 80 years old.

Odd, that.

4-4 on 11-02-04?

Not if this Chief can help it. Then-Justice Rehnquist, it may be recalled, was the author of an opinion, Laird, Secretary of Defense v. Tatum, 409 U.S. 824, 837 (1972) (Rehnquist, J., mem.), explaining his non-recusal despite his personal involvement in some of the matters at issue, on the grounds that Justices should be less willing to recuse themselves on the grounds of conflict of interest if the case is really important — precisely the sort of cases where others might ordinarily think recusal was most called for….

At least his doctors may be pleased that their patient has a powerful incentive to get better quickly.

Wow. Low Even for Monsanto

Boing Boing: Monsanto stole patented wheat from Indian farmers:

Cory Doctorow: Monsanto had taken out a patent for a “genetically modified” strain of wheat. Today, they lost that patent in Europe, after Greenpeace proved that the wheat in question had in fact been selectively bred by Indian farmers and had not emerged from Monsanto's labs.

The European Patent office in Munich had granted a patent to Monsanto on May 21, 2003. The patent covered wheat exhibiting a special baking quality that Monsanto claimed to be its invention.

However, Greenpeace proved in its opposition that the wheat variety was bred by Indian farmers for improving its baking quality and it was not a genetically-engineered invention as claimed by Monsanto.

Link

I hope this sort of theft of intellectual property is a criminal offense in the EU.

Arizona Libertarians Seek to Block Third Presidential Debate

This sounds like a plausible argument to me, but it's not at all my field:

Arizona LP files suit to stop state funding of presidential debate: Arizona Libertarians have filed a lawsuit that could stop Arizona State University from sponsoring the third presidential debate between George Bush and Sen. John Kerry, scheduled for Oct. 13. The lawsuit maintains that by spending up to $2 million to sponsor the event in Tempe, the university is making an illegal campaign contribution to the Republican and Democratic parties.

“It's a clear case of misusing state funds,” said David Euchner, attorney for the Arizona Libertarian Party (AZLP).

“Arizona recognizes three political parties,” Euchner continued. “A debate which included all three of those parties would be a legitimate expenditure on education and public information. A debate including only two of the three candidates is a partisan campaign commercial — and an illegal donation to partisan political associations.”

Having said it's plausible, if the money has been paid over, I don't see what they can do about it except set an Arizona precedent for any next time, unless Arizona has funny third-party restitution laws. But if the money hasn't been paid over…

House of Representatives Supports Giving US Corporations Away for Nothing

Barring surprises, back to international taxation, particularly expatriate US corporations, tomorrow.

Today, I want to write about the financial accounting when a corporation pays an executive with stock options. This is not a new topic, and I have nothing new to add to the debate, but it is important, and the issue is hot again, as to be discussed below.

Under current financial accounting rules, when a company pays an executive with a stock option, the company is not required to show any expense (cost), ever. The executive may exercise the option and get millions of dollars worth of stock for nothing (that she then may sell for even more) and the corporation's books say that the executive got nothing. All of the other shareholders got their percentage ownership of the company diluted, with an associated loss in value of their shares. A portion of the company's assets has been transferred to the executive. The company gets an income tax deduction. But financial accounting says that the executive's compensation cost the company nothing.

Business, particularly high-tech business, views the current accounting as a deity: There is no real cost, they say. Proper accounting would discourage innovation. Bad statements help US companies compete with their honest offshore rivals. It is hard to value stock-based compensation. Shameless nonsense! There are difficult timing and measurement issues involved, but these concerns are no excuse for never showing any cost.

The Financial Accounting Standards Board (FASB), the glorified trade association that the SEC lets sort of police accounting principles, considered changing these rules in the early 1990s. Senator Lieberman pushed through a Sense of the Senate Resolution that FASB's authority would be rescinded if they did anything about stock options. FASB caved.

Many blamed the recent corporate scandals, like Enron, in part on stock option accounting: The accounting rules encouraged companies to pay executives with stock options. But, when most of an executive's compensation is stock-based, that gives the executive an unhealthy incentive to focus on manipulating the price of the stock rather than managing the company's business.

In February, FASB's European competitor, the International Accounting Standards Board, required accounting for compensatory stock options. With this cover, in March, FASB again proposed more reasonable accounting rules here. And, this time, the House last month passed a bill that would reverse FASB. Hopefully, the Senate will resist the opportunity to once again put its imprimatur on misleading financial statements, but……

What's In a Name?

Congress' General Accounting Office changed its name to the General AccountABILITY Office. Huh? Numbers don't count any more?

CORRECTION: I goofed! It's GOVERNMENT AccountABILITY Office. Scary…

Who Gets Custody of the Alligator?

Further to the law and animals theme, today's Herald has an interesting feature on what happens to pets in divorce: Divorcing couples fight like beasts over pets.

Given the number of childless people I know who call their pet “baby” or refer to their spouse as the pet's “mummy” or “daddy”—something I as a parent always find a bit startling—I bet this happens a lot.

It seems that, in Florida at least, pets are chattel property under law, so you cannot have court-ordered visitation: “Our courts are overwhelmed with the supervision of custody, visitation and support matters related to the protection of our children,'' a Florida appellate court ruled. “We cannot undertake the same responsibility as to animals.''

Update: The leading Florida case is Bennett v. Bennett, 655 So. 2d 109 (Fla. 1st DCA 1995), and as it's short and not on findlaw, I've put the text in the extended.

For commentary, see Who Gets Fluffy? Division of Pets in Divorce Cases (“a family pet is an item of personal property, and principles concerning the classification of this property apply. Once it is determined, however, that the family pet is marital property or that the court has the authority to award the family pet to one party or the other, then the court may consider who would better care for the pet and who has the greater attachment to the pet. This is really no different from the many cases that award a particular piece of property to the party who asserts a greater sentimental value to an item of property”).

Text of Bennett v. Bennett, 655 So. 2d 109 (Fla. 1st DCA 1995)

WOLF, Judge.

Husband, Ronald Greg Bennett, appeals from a final judgment of dissolution of marriage which, among other things, awarded custody of the parties' dog, “Roddy.” The husband asserts that (1) the trial court erred in awarding the former wife visitation with the parties' dog, and (2) the trial court erred in modifying the final judgment to increase the former wife's visitation rights with the dog. We find that the trial court lacked authority to order visitation with personal property; the dog would properly be dealt with through the equitable distribution process.

A brief recitation of the procedural history will demonstrate the morass a trial court may find itself in by extending the right of visitation to personal property. The parties stipulated to all issues in the final judgment of dissolution of marriage except which party would receive possession of the parties' dog, “Roddy.” After a hearing, the trial court found that the husband should have possession of the dog and that the wife should be able to take the dog for visitation every other weekend and every other Christmas.

The former husband contested this decision and filed a motion for rehearing alleging that the dog was a premarital asset. He also filed a motion for relief from final judgment and an amended motion for rehearing. The wife replied and filed a motion to strike former husband's amended motion for rehearing and a motion for contempt. The former wife requested that the trial court transfer custody of the dog because the former husband was refusing to comply with the trial court's order concerning visitation with the dog.

A hearing on these motions was held on September 27, 1993. The wife's counsel filed an ore tenus motion requesting the trial court to change custody, or in the alternative, change visitation. The trial court denied the former husband's motion for rehearing and granted the former wife's ore tenus motion to change visitation. Thus, the trial court's ruling on visitation now reads:

7. Dog, Roddy: The former Husband, RONALD GREGORY BENNETT, shall have custody of the parties' dog “Roddy” and the former Wife, KATHRYN R. BENNETT n/k/a KATHRYN R. ROGERS shall have visitation every other month beginning October 1, 1993. The visitation shall begin on the first day of the month and end on the last day of the month.

Based on the history of this case, there is every reason to believe that there will be continued squabbling between the parties concerning the dog.

While a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property. County of Pasco v. Riehl, 620 So.2d 229 (Fla. 2d DCA 1993), and Levine v. Knowles, 197 So.2d 329 (Fla. 3d DCA 1967). There is no authority which provides for a trial court to grant custody or visitation pertaining to personal property. § 61.075, Fla.Stat. (1993).

While several states have given family pets special status within dissolution proceedings (for example, see Arrington v. Arrington, 613 S.W.2d 565 (Tex.Civ.App.1981)), we think such a course is unwise. Determinations as to custody and visitation lead to continuing enforcement and supervision problems (as evidenced by the proceedings in the instant case). Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals.

While the trial judge was endeavoring to reach a fair solution under difficult circumstances, we must reverse the order relating to the custody of “Roddy,” and remand for the trial court to award the animal pursuant to the dictates of the equitable distribution statute.

Judge Kozinski Has a Fan Site

Even judges get fan sites? Well, at least one witty, intelligent, highly readable, and arch-conservative judge does: The Unofficial Judge Alex Kozinski Site (spotted via Tim Bishop)

What's next, a fan club?

Oh, wait, maybe there is one.

Not Safe For Work

The Guardian reports that in Ireland they have their own approach to keeping financial markets clean—Irish bank boss quits over adult sites:

The Irish banking sector was dealt another blow this weekend with the resignation of the chief executive of the Bank of Ireland, Michael Soden.

Mr Soden resigned on Saturday after he admitted breaking company guidelines by accessing internet sites containing adult content. He is also expected to step down from the board of the Post Office, a role he took up after the Bank of Ireland signed a deal with the Royal Mail's retail arm.

A spokesman for the bank said directors would meet this week to discuss Mr Soden's replacement and payoff.

The experienced banking executive said he deeply regretted the embarrassment he had caused the bank by breaching its policies on internet use.

“I have made it a central part of my tenure to set the highest standards of integrity and behaviour and to do so in an environment of accountability, transparency and openness,” he said. “I now accept that accessing this material was inappropriate and would cause embarrassment to Bank of Ireland and people who work there.”

Irish prime minister Bertie Ahern yesterday said Mr Soden's resignation and a growing scandal at Allied Irish Bank had jeopardised the credibility of the Irish financial industry. “It can't get much worse.”

Perhaps Mr. Soden should look for a job in Denmark?

Yes, Igor

Charles Petit has a blog whose content is so good I read it despite the layout, which (at least on Firefox with my defaults) produces a color scheme and crowded typeface that I actually find disturbing. Here's the start of an especially good recent post:

It's alive: The Ninth Circuit gave us a true Frankenstein moment on Monday. In Thinket Ink (PDF), a panel held that

if a corporation either suffers discrimination harm cognizable under § 1981, or has acquired an imputed racial identity, it is sufficiently within the statutory zone of interest to have prudential standing to bring an action under § 1981.

Id., slip op. at 6343 (emphasis added). Why is this a Frankenstein moment? Because by implication it means that the corporation, an unnatural person, has taken on yet more aspects from natural (real) persons: race, religion, ethnicity, and gender. This leads to some very, very interesting (and difficult) questions of constitutional and statutory interpretation; and of the relationship among law, policy, and reality; and of speculative fiction.

There's more where that came from, plus other stuff about “Law and reality in publishing (seldom the same thing!) from the author's side of the slush pile, with occasional forays into military affairs, legal theory, and anything else that strikes me as interesting.”

Autres Endroits Autres Moeurs

Living in a country where it's a serious question of debate whether and when Employer is liable to Employee2 under an 'environmental harassment' theory for Employee1's visible consumption of online porn, it's bracing to be reminded that attitudes are different elsewhere. Consider Danes permit office p0rn. Danish IT firm LL Media found out that its programmers were wasting large amounts of office time surfing online porn, and decided to start blocking it during working hours. In an attempt to keep the troops happy after the blocking went into effect, LL Media is offering a new fringe benefit: signing workers up for a pay online porn service — but for after hours use only.

Which reminds me of a labor law colleague's story after returning from a visit to a newly liberated post-communist central European nation. He'd been talking with local scholars about US sexual harassment law, which makes two kinds of harassment actionable (grounds for a civil lawsuit). Direct harassment is the simple sort where the employer/supervisor demands some sort of sexual favor either in exchange for a benefit, or under the threat of harm. Environmental harassment is where the firm allows a climate of sexual harassment to flourish, even if the firm or higher-ups are not among the offenders.

In the US the first type is uncontroversial: we don't think people should have to trade sexual favors for work. The second type is controversial: some people don't think employers should have to pay Worker1 if Workers2-N are posting pinups in their lockers. Other people think it's too hard to draw the lines for when ordinary boys-will-be-boys turns into something worth suing about.

My colleague was astounded to discover that the post-communist academics he met saw the issue completely differently. What we call environmental harassment was an insult to human dignity and should be sternly punished. On the other hand, if an employee wanted to trade sexual favors for a promotion, well, that's capitalism, isn't it?

Capt. Yee Wins on Appeal

The case of Capt. Yee came to an official end this week when the remaining (minor) charges against him got reversed on appeal.

Convictions Dropped for Muslim Chaplain at Guantánamo Bay: An Army general on Wednesday dismissed the convictions in the case of a Muslim chaplain who was initially suspected of espionage at the Guantánamo Bay prison for terror suspects but was found guilty only on lesser charges of adultery and downloading pornography.

The appellate decision by Gen. James Hill, the Army Southern Command chief who oversees military operations at Guantánamo, wiped the slate clean for Capt. James J. Yee, who ministered for 10 months to foreign terrorism detainees at the United States naval base in Guantánamo Bay, Cuba.

“This means there will be no official mention of it in his military record,” General Hill said.

The decision ended what one of Captain Yee's lawyers, Eugene Fidell, called a “hoax” case.

The case had started to smell pretty bad since shortly after it was filed. Heads should roll over this one. But they won't. Meanwhile Yee's marriage, his career, his life, are all badly hurt, even if there's nothing official in his file.

Another Everyday Injustice from John Aschroft's Justice Dept.

The Miami Herald's best columnist, Carl Hiassen, The An arbitrary deportation campaign writes about the Aschroft Justice Department's assinine campaign to deport productive, legal, US residents:

So this is the new America. Our government wants to deport an Oregon woman who was convicted 11 years ago of growing six marijuana plants.

Kari Rein, a Norwegian citizen, had never been in trouble before, and hadn't been in trouble since. That changed Dec. 30.

She, her husband and two children were returning from a vacation to Norway when she was questioned at the Seattle-Tacoma Airport by officers of the Bureau of Immigration and Customs Enforcement.

They had run Rein's name through a computer and found the old marijuana conviction. They asked her to step into a private room.

''And that,'' says her husband, James Jungwirth, “was the last time we saw her for three weeks.''

The sentencing judge didn't even think six pot plants for home use merited a jail sentence. But the loonies in Main Justice don't care. The husband and two kids are US citizens. But Main Justice doesn't care.

Remember folks, all this is being done in your name by your government. Be proud. Or throw the rascals out.

And, as Karl Hiaasen says,

Don't think it couldn't happen to someone you know. This is the new America.

David Abraham on the US Guest Worker Proposal

My erudite colleague David Abraham, himself a guest worker at Princeton this semester, has a great column at the top of the New York Times op-ed page today, American Jobs but Not the American Dream.

In it, he persuasively describes the Bush proposal as “a classic guest worker program on the European model” and then sets out all the ills that flow from adopting guest worker programs — “drawbacks [that] far outweigh their advantages.”

Among the problems — large foreign low-wage populations tend to create ghettos; once people set down roots, they don't want to go home; making residence depend on employment tends to create opportunities for exploitation by the employer; the US's lack of strong labor unions makes this problem likely to be even worse here than it was in European countries such as Germany that tried the guest worker concept.

And, as David so eloquently put it,

President Bush has clearly expressed his intention to put employers in charge: guest workers will be selected by employers and will be able to remain in the United States only so long as they stay with the employer who brought them. This is a sure recipe not only for the exploitation of these “guests” but also for the depression of American wages generally, especially among those who can least afford it — many of them immigrants.

The United States has always been a “welcoming country,” as the president said, “open to the talents and dreams of the world.” But this plan is an abandonment of America's ideals, not an expression of them. It values immigrants' talents over their dreams. Instead of hope, it offers them simply a job.

NYT Gives Reasons to Believe Capt. Yee Is a Victim

Missteps Seen in Muslim Chaplain's Spy Case. This New York Times story doesn't actually say much that is new (cf. Case Against Capt. Yee Starts to Smell Like a Train Wreck almost a month ago), but it's nice to see it on the front page.

The only things in the article that I hadn't heard before are (1) that the regulars are pointing the finger at the reservists as the cause of the erroneous and/or botched prosecution: “Reservists serving as counterintelligence officers at the camp were apprehensive that they might miss some sign of infiltration of the base but were relatively inexperienced in how to handle such matters” and (2) the lurid details of just how nasty the conditions of confinement were when Capt. Yee was in solitary.

Even if all the charges against Capt. Yee are dismissed, his marriage has been perhaps irretrievably damaged, he spent weeks in solitiary in shackles, treated worse than the inmantes in Gitmo (who are at least told the direction of Mecca), and his career as an officer—probably not irrelevant to a West Point graduate?—is presumably finished. And it's hard to see how he'll get out of the adultury charge in light of the testimony (put into public evidence first in order to cause him the maximum personal damage). Ok, this isn't the modern Dreyfus Affair, but it's not a good advertisement for US military justice either.

Wouldn't It Be Nice to Have an Attorney General Who Wasn't Embarrassing?

FEC Fines Ashcroft's Senate Bid For Breach … and ….

Judge Rebukes Ashcroft for Gag Violation. Personally, I think this deserved much more than a slap on the wrist. The AG should be held to the highest standards and ought to set a better example than this.

Please understand: there have been a lot of bad AG's over the years. Ed Meese. John Mitchell. But there have also been a lot of good ones. We shouldn't have to settle for this.

Case Against Capt. Yee Starts to Smell Like a Train Wreck

Prosecutors Say It's Unclear Papers Chaplain Carried Were Classified. You can never be sure about a legal case you read about in the papers. There's so much texture and detail that gets lost in even the best newspaper report. That said, the case against Capt. Yee is giving off a certain stench of shambolic military CYA.

Would a white Christian chaplain get smeared with accusations of being a spy, get threatened with the death penalty, get locked up in solitary for three months, all over documents that the government isn't even sure are classified? As for the adultery charge, note that it's an offense only if it interfered with discipline—and apparently the affair was neither in the chain of command nor at all public. And by getting that testimony in first, then recessing the trial, the government manages a second round of strafe-and-smear.

Based on the news coverage, it sure looks like some combination of three things is going on: (1) Major government vindictiveness against someone who was effectively ministering to the Gitmo detainees and/or major government anti-Muslim bigotry [plus shades of Wen Ho Lee?]; (2) All that, plus the government is now throwing up whatever charges it can to cover up the fact that it smeared an officer without reason; (3) the prosecutors really think he's guilty but cannot prove it and/or are totally incompetent.

The information that is public makes the 'really guilty' story seem much the least likely alternative.

Note also that the key part of the original accusation wasn't giving secrets to the “enemy” nor even to the detainees at Guantanamo. Nor was the charge unlawful possession. No, as far as I can tell, the charge was carrying them around without the right security cover sheets….

Officials placed Captain Yee in solitary confinement for nearly three months in a naval brig while they completed their investigation into possible espionage. Maj. Scott Sikes, one of Captain Yee's defense lawyers, said on Tuesday that military prosecutors once told him that they might seek the death penalty in the case.

But when the investigation was completed last month and Captain Yee was released, the military did not bring any serious espionage case. Instead, he was charged with two counts of mishandling classified data, a reference to the materials found in his luggage, as well as four new charges with no apparent connection to security issues. Those included adultery and keeping pornography on his government computer, issues that prosecutors said came to their attention in the espionage investigation.

After repeated complaints from defense lawyers that they could not proceed on the issue of mishandling classified information if it remained unclear whether the documents were classified, the government acquiesced on Tuesday. Lt. Col. Mike Mulligan, one of the prosecutors, said the government had decided to conduct a thorough classification review of the documents.

Eugene R. Fidell, Captain Yee's civilian defense lawyer, called it disgraceful that his client had been kept in the brig for 76 days for possessing materials that the government still had not determined were classified. Mr. Fidell also said the military should be embarrassed to have tried to proceed with a criminal hearing on the charges without the determination.

The postponement of the hearing may create another problem for the prosecution. Mr. Fidell said that under military law charges were supposed to be brought within 120 days of the Sept. 10 arrest. The government has suggested that various factors have extended the time frame.

Major Sikes said he hoped the military would decide to drop the case. He said he believed that the military was pressing ahead as part of an unwise effort to save face over its initial miscalculation.

The case, he noted, “started out with allegations of being a spy.”

“There has since been a steady decline in the seriousness of the allegations,” Major Sikes said.

Major Sikes, a former military prosecutor, said, “This is the most incredible military proceeding this military counsel has ever seen.”

Followup reading: Justice for New Americans web site.

M$ To Demand Royalties on Pre-Formatted Media

Spotted via Dan Gillmore (“As a colleague said when he sent this link out in an e-mail, he had to double check the date of this posting to make sure it wasn't an April Fool's joke.”): Digital Photography Review reports on Microsoft's FAT charges:

Microsoft will soon be charging manufacturers of flash memory card devices and those which use them $0.25 per unit or up to $250,000 to use the FAT filesystem. For those who are unaware the FAT file system was developed by Microsoft back in 1976 and has become the standard file system for all digital still cameras. Microsoft owns patents to the FAT File System but for many years hasn't even hinted that it may one day decide to charge for it. These new licenses appear to come into effect immediately and specifically make mention of 'compact flash memory cards' and 'portable digital still cameras'.

Patents, unlike copyrights, are only for a limited time. Even so, there's something unsavory about creating a de facto industry standard, never once suggesting you might charge for the use of it, sitting back and watching everyone adopt it, then sending out bills. I don't know any patent law, but there ought to be some sort of equitable limit on this for not just sleeping on your rights, but actively allowing the world to think a standard is in the public domain.

More on Justice Brown

Prof. Bainbridge has a response to my Justice Brown posting. I have a really busy 24 hours coming up, but I'll try to reply as soon as I can. Other commentary by Eric Muller and Kieran Healy at Crooked Timber, and in the comments to the original Brown item here.

Justice Janice R. Brown In Her Own Words

The blogosphere is getting very distracted by the Lochner tangent to the Janice Brown confirmation battle. Eric Muller injects some sense into that debate.

But forget about Lochner for a minute. The technical merits and demerits of that decision are the wrong debate. Read the whole speech in which the Lochner passage is only a small part. Jon Roland has HTMLized it: “A Whiter Shade of Pale”: Sense and Nonsense—The Pursuit of Perfection in Law and Politics, delivered to the The Federalist Society at University of Chicago Law School (April 20, 2000).

You should read the whole thing to get its true flavor. Justice Brown believed that the United States in 2000 was on the brink of collectivism, in the grips of a slave mentality in which the unthinking (led by Marxist academicians, of course) are just itching to surrender their liberty for the opiate of socialism exemplified by the New Deal—the great error in our history. And, oh yes, the family is being destroyed by bureaucrats, or by feminine reliance on the state [please note that Justice Brown clearly doesn't just mean AFDC, where there might be something to the claim…she means a substantial proportion of the women who voted for Clinton].

But fear not, “it is too soon to despair. … We must get a grip on what we can and hold on. Hold on with all the energy and imagination and ferocity we possess. Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.” That would be a new ultra-libertarian, anti-collectivist (defined as “regulation”) dawn, apparently. Which is of course why some folks fixated on the Lochner point.

There does come a point where, however smart they may be, a person is so far outside of the mainstream that they really shouldn't be a federal judge. This speech persuaded me that Justice Brown is out there, well past that point. And this despite the cool Procol Harum references.

Here are some quotes (minus footnotes)

There are so few true conservatives left in America that we probably should be included on the endangered species list.

…

Writing 50 years ago, F.A. Hayek warned us that a centrally planned economy is “The Road to Serfdom.” He was right, of course; but the intervening years have shown us that there are many other roads to serfdom. In fact, it now appears that human nature is so constituted that, as in the days of empire all roads led to Rome; in the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.

It is my thesis today that the sheer tenacity of the collectivist impulse — whether you call it socialism or communism or altruism — has changed not only the meaning of our words, but the meaning of the Constitution, and the character of our people.

…

Ayn Rand similarly attributes the collectivist impulse to what she calls the “tribal view of man.” She notes, “[t]he American philosophy of the Rights of Man was never fully grasped by European intellectuals. Europe's predominant idea of emancipation consisted of changing the concept of man as a slave to the absolute state embodied by the king, to the concept of man as the slave of the absolute state as embodied by 'the people' — i.e., switching from slavery to a tribal chieftain into slavery to the tribe.”

Democracy and capitalism seem to have triumphed. But, appearances can be deceiving. Instead of celebrating capitalism's virtues, we offer it grudging acceptance, contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism. We do not conclude that socialism suffers from a fundamental and profound flaw. We conclude instead that its ends are worthy of any sacrifice — including our freedom. Revel notes that Marxism has been “shamed and ridiculed everywhere except American universities” but only after totalitarian systems “reached the limits of their wickedness.”

“Socialism concentrated all the wealth in the hands of an oligarchy in the name of social justice, reduced peoples to misery in the name of shar[ed] resources, to ignorance in the name of science. It created the modern world's most inegalitarian societies in the name of equality, the most vast network of concentration camps ever built [for] the defense of liberty.”

Revel warns: “The totalitarian mind can reappear in some new and unexpected and seemingly innocuous and indeed virtuous form. [¶]… [I]t … will [probably] put itself forward under the cover of a generous doctrine, humanitarian, inspired by a concern for giving the disadvantaged their fair share, against corruption, and pollution, and 'exclusion.'”

Of course, given the vision of the American Revolution just outlined, you might think none of that can happen here. I have news for you. It already has. The revolution is over. What started in the 1920's; became manifest in 1937; was consolidated in the 1960's; is now either building to a crescendo or getting ready to end with a whimper.

…

Lionel Tiger, in a provocative new book called The Decline of Males, posits a brilliant and disturbing new paradigm. He notes we used to think of a family as a man, a woman, and a child. Now, a remarkable new family pattern has emerged which he labels “bureaugamy.” A new trinity: a woman, a child, and a bureaucrat.” Professor Tiger contends that most, if not all, of the gender gap that elected Bill Clinton to a second term in 1996 is explained by this phenomenon. According to Tiger, women moved in overwhelming numbers to the Democratic party as the party most likely to implement policies and programs which will support these new reproductive strategies.

…

We find ourselves … in a situation that is hopeless but not yet desperate. The arcs of history, culture, philosophy, and science all seem to be converging on this temporal instant. Familiar arrangements are coming apart; valuable things are torn from our hands, snatched away by the decompression of our fragile ark of culture. But, it is too soon to despair. The collapse of the old system may be the crucible of a new vision. We must get a grip on what we can and hold on. Hold on with all the energy and imagination and ferocity we possess. Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.

You can also read her tamer — by comparison — Commencement Address to the Columbus School of Law at Catholic University, Keepers of the Faith; Defenders of the Light (May 24, 2003).

The question for you will be whether the regime of freedom which they founded can survive the relentless enmity of the slave mentality.

…

The American Creed has not been forgotten; it has been repudiated. “Historically, American identity has had two primary components: culture and creed.” The former is defined by our heritage from Western Civilization; the latter consists of a set of universal ideas and principles articulated in our founding documents: liberty, equality, democracy, constitutionalism, limited government, and private property. On these principles there once was wide agreement. Indeed, the Creed was hailed by foreign observers, ranging from Alexis de Tocqueville to Gunnar Myrdal, as the “cement in the structure of this great and disparate nation.” As Richard Hofstader notes: “It has been our fate as a nation not to have ideologies but to be one.”

The Greatest UCC Cartoons in the History of the World

My colleague William H. Widen is not your typical law professor. For one thing he practiced commercial and corporate law at Cravath, Swaine & Moore from 1984 to 2001, spending more than a decade of that time as a partner. Most law professors have some practice experience, but few have as much as that. For another thing, he has a wicked taste in movies, and wild taste in aphorisms (is it true that “business law is about as complicated as Donkey Kong”?). And did I mention he's pretty slick at programming interesting web sites on the Uniform Commercial Code? Including one that invites students to play a game he designed called Ultimate Commercial Code! [Admittedly there he has the advantage of being married to serious techie.] And, to top it off, he's fascinated by the Uniform Commercial Code, a subject most law professors do not necessarily find scintillating. In fact, he's so fascinated that it's almost contagious.

Then there are his cartoons, “Tales From The Code.” I think it's safe to call these the Greatest UCC Cartoons in the History of the World, if only because they are probably the only Uniform Commercial Code cartoons in the history of the world. But if there was another UCC cartoon or two, these are funnier. Start with Episode One. Beware, though. You might learn something.

Leaks About Leaking Investigation

Much of the most interesting news today was nowhere near the front page of my paper. One of these was the buried item, Senior Federal Prosecutors and F.B.I. Officials Fault Ashcroft Over Leak Inquiry, which appeared on page A16 of the national edition of the New York Times.

Mostly it's a bunch of near-gossip, albeit firmly based on prosecutorial experience: people in charge of investigations that touch their bosses and friends usually suffer, even when they don't screw it up accidentally or on purpose. Recusals protect more than the investigation — they also protect the person with the conflict from accusations. So the professional prosecutors and mid-level politicals in Justice are worried that either Ashcroft will do something bad, or he won't and still get unfairly blamed for it. Either way, the unamed sources think it would be better to get him out of the picture.

There is, however, one smoking gun here. Inexplicably you have to read to the end of the story to find it.

It's been mentioned before, but it's nice to see that it's not forgotten:

Mr. Ashcroft and Alberto R. Gonzales, the White House counsel, have also been under fire for their initial handling of the case. The Justice Department allowed the White House to wait overnight on Sept. 28 before sending an electronic message ordering White House employees not to destroy records related to the leak.

Ashley Snee, a spokesman for Mr. Gonzales, said he believed the delay was acceptable because no one in the White House had any idea there was an investigation. But The New York Times and The Washington Post had reported the day before that the C.I.A. had forwarded the matter to the Justice Department for possible investigation.

There seems to be a Washington law that the cover-up snares more people than the crime/non-crime. There's a decent chance that rule may control here too.

I think Mr. Gonzales's Supreme Court hopes took a big dive this week. That could be bad, as the other qualified Hispanics the administration likes to talk about are considerably worse.

Today's Overbroad Patent Story

Because my weather report in the left column is not customized for every user, I feel pretty confident that it's not covered by the latest over-the-top Microsoft patent. So, the scare headline over at Slashdot: Microsoft patents your local weather report, is slightly exaggerated—but only slighlty. This does seem like a radically over-broad patent. There must surely be tons of prior art on per-user customization using state information

Assuming that there is prior art on the use of user-set state info in a network (and UIDs?), I'll venture a guess that the patent isn't saved by narrowing its subject matter to applications with “topical groupings of customization options [that] relate to one or more of: news, sports, financial matters, entertainment, science and technology, life, and weather” if only on the grounds of obviousness. But I should say that I'm emphatically not a patent lawyer….

Note that the ICANNWatch site which I co-edit runs on the Slash:http://slashcode.com/ engine and does allow per-user customization of which RSS feeds you'd like to read. So it's probably at risk in the unlikely event this patent were (a) valid and (b) asserted against it…