Author Archives: Michael Froomkin

Unicorn Sighting: I Agree With Judge Silberman

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Links to My Miami-Dade Voter’s Guide

(Sticky until election day).

Posted in 2014 Election, Miami | 1 Comment

Looking for a Good Student Note Topic?

I think this qualifies: FTDI Removes Driver From Windows Update That Bricked Cloned Chips (via Slashdot).

As Ars Technica explains:

Hardware hackers building interactive gadgets based on the Arduino microcontrollers are finding that a recent driver update that Microsoft deployed over Windows Update has bricked some of their hardware, leaving it inaccessible to most software both on Windows and Linux. This came to us via hardware hacking site Hack A Day.

The latest version of FTDI’s driver, released in August, contains some new language in its EULA and a feature that has caught people off-guard: it reprograms counterfeit chips rendering them largely unusable, and its license notes that:

Use of the Software as a driver for, or installation of the Software onto, a component that is not a Genuine FTDI Component, including without limitation counterfeit components, MAY IRRETRIEVABLY DAMAGE THAT COMPONENT

The license is tucked away inside the driver files; normally nobody would ever see this unless they were explicitly looking for it.

The result of this is that well-meaning hardware developers updated their systems through Windows Update and then found that the serial controllers they used stopped working. Worse, it’s not simply that the drivers refuse to work with the chips; the chips also stopped working with Linux systems. This has happened even to developers who thought that they had bought legitimate FTDI parts.

Nice four-hander here: the rights of the end-user, the rights and duties of the vendor, the rights and liabilities of the legitimate parts maker, and the potential liabilities of Microsoft for serving up the malware-to-counterfeits via Windows Update.

Heck, it could be an article.

Update (10/28/14): Good semi-technical background info on this at Errata Security: The deal with the FTDI driver scandal.

Posted in Law: Internet Law, Student Note Topics, Sufficiently Advanced Technology | Leave a comment

The New Pictograms

Google released 750 new icons for phones and tablets that will undoubtedly take over the world. They’re free for anyone to use.

click for larger image

(Click above for a larger image of a some of them.) Cory Doctorow thinks this move by Google is great, and one disagrees with Cory at one’s peril since he’s usually right.

I suppose it’s language-independent and transnational. I can’t help but think, though, that the task of memorizing the meanings for these pictures will be akin to learning Chinese.

Wasn’t the move from pictograms to the alphabet supposed to be a triumph of civilization?

Posted in Internet | 3 Comments

2014 November Voting Guide (Part Two: Constitutional Amendments, Charter Amendments, and a Bond Issue)

This is part two of a two-part guide to the ballot in South Florida. Part One covered candidates on the 2014 ballot in Miami-Dade; this part looks at the three state-wide proposals to amend the Florida Constitution, at four proposals to amend the Miami-Dade County Charter, and a proposal for a bond issue.

Florida Constitutional Amendments

1- YES, 2-YES & 3-NO

No 1: Water and Land Conservation. (Full text.) Earmarking certain existing tax revenues for the environment. Vote for water conservation. We need it badly. This won’t directly raise taxes in that it just earmarks existing revenues. Money being fungible, it is of course possible that taxes might be raised to pay for something that these existing revenues might otherwise have been used for. Vote YES.

No. 2: Medical Marijuana. (Full text.) Very limited – too limited. Vote YES anyway.

No. 3: “Prospective Appointment of Certain judicial Vacancies,” AKA court-packing in some scenarios. (Full text.) The court appointment process ain’t broke: Vote NO

Seriously, why would we want a lame-duck governor doing the Florida Supreme Court appointments … here’s why and it isn’t pretty. As former Florida Supreme Court Justice Harry Lee Anstead explained, it’s a “partisan political power grab”:

In the past, Florida was hailed nationally as a model system for appointment of fair and impartial judges based solely on merit. It was perhaps the greatest legacy of the late Gov. Reubin Askew, who voluntarily gave up his sole authority to appoint judges in favor of a nonpartisan merit selection system based on his belief that “the judiciary is too important to be left to partisan patronage.”…

Now, instead of working to restore Askew’s nonpartisan merit system, the current legislative majority is seeking to accelerate a partisan political power grab of Florida’s judiciary at the highest level. They want to vest a lame-duck outgoing governor with the authority to fill three seats on the Supreme Court that become vacant after the governor’s term expires.

The sponsors of Amendment 3 say they are trying to eliminate confusion and an imaginary future constitutional crisis in the delay of a new governor making the appointments. Those claims are thin cover for continued improper political interference in our courts…

What Floridians are really being asked to eliminate is a critical protection Askew built into the system of merit selection and retention. When the system was adopted, it was built on two pillars of public input and accountability. In addition to requiring appointed judges to go before the public for merit retention at regular intervals, a governor seeking re-election could be held accountable at the ballot box for his appointments. That accountability vanishes if an outgoing governor makes the appointments.

The scheme proposed in Amendment 3 gives a departing governor the power to tip the scales of justice for partisan reasons on the way out the door — with impunity. And, therein lies the easily identified real intent of this amendment. Partisan advocates, frustrated by the public’s rejection of their attempt to remove these same three Florida justices in their retention elections in 2012, have audaciously found another scheme to achieve their goals of stacking the court politically.

It is a one-time gamble and a shortsighted strategy on multiple levels. First, it presumes Gov. Rick Scott is re-elected so that he can make the appointments at the end of his second term. More importantly, it cynically ignores the possibility that an informed Florida public will reject this blatant attempt to politicize the judiciary.

Of course if Crist wins in November and this passes, it will kind of blow up in their faces. I’d still be against it though, even if I knew that was going to happen.

County Questions

Vote NO on all four attempts to undermine Art. 7.

Amend Article 7 to allow Libraries in Parks? Sounds innocuous. But it could be the thin edge of the wedge on undermining green spaces in a town where every proposal is about less green space, or ignoring promises about old green spaces. Let’s fund the libraries we’ve got first. NO. Note also that Commissioner Esteban “Steve” Bovo proposed this – that can’t be good. And indeed it isn’t. No, indeed.

Exempt Miami Dade Regional Soccer Park from Article 7? Another attack on greenery. Well, actually this is about a former landfill that they want to open to a privately run soccer camp. So there’s less at stake here environmentally, but it seems a bit special-interest to me. NO, weakly.

Allow Campgrounds and Lodgers/Cabins in Camp Matecumbe? I couldn’t find much information on this other than this article which makes the development proposed in this County Question sound unattractive compared to the plan the locals want. Leaning NO, but I’m open to hearing the other side.

Exempt FIU from Art 7 to encourage their takeover of the Miami-Dade Youth Fair site? NO. Really, NO.

The whole local establishment is for this which tells you something not so wonderful about the establishment here. I’ve gotten robocalls and live calls too. But it’s a pig in a poke. To make this plan work work FIU would have to comply with a contractual requirement to find a new site for the Youth Fair – and there’s no obvious place for it. It would be folly to approve a project like this until we know where they are planing to send it And if anyone knows, they are not talking. Don’t encourage this sort of back-door governance. We have a right to know at least the basic facts about a deal before we are asked to OK it.

Funding new courthouse. This would authorize a $393 million bond issue, most of it for a new downtown courthouse. The old one is in terrible repair; it has leaks and mold. We need a new one. The price seems somewhat high; one could quibble as to how unrepairable the old building really is. But something needs doing, and this is something. I’m voting YES.

Posted in 2014 Election, Florida, Miami | 14 Comments

2014 November Voting Guide (Part One: People)

Absentee ballots are out, early voting begins this week, must be time for a South Florida election guide. (See your personalized sample ballot.) If your mind is made up on the headline races, skip down to the judges. My suggestions regarding the Florida Constitutional Amendments, and the County Questions will be in Part Two which will be up presently.

Governor

Hold your nose and vote for Charlie Crist. And enjoy that at least this means you also get to vote for Annette Taddeo.

The Governor’s race is painful this year, pitting a far-right-likely-criminal Republican Rick Scott against former Chain-Gang-Charlie Crist, a man whose journey from then-hard-right Republican Attorney General and gubernatorial candidate to soft-right Republican Governor to centrist Democratic gubernatorial candidate in 2014 has had at times a certain air of opportunism.

I for one will never forget, and find hard to forgive, Crist’s behavior as Attorney General, not least his behavior in one of the early sexting cases, where he personally argued an appeal arguing for further victimizing the female victim whose boyfriend shared her picture around by making her a sex offender. And I didn’t like his judicial appointments.

But give the man his due: he governed far more reasonably that he campaigned. (Yes, soft bigotry of low expectations.) He kept the polls open late in 2008, I think more on grounds of basic decency than calculation. If elected he’ll support expansion of medical care to the poor (if the legislature lets him), and ought generally to check the excesses of our very right-wing legislature. Plus we get Annette Taddeo as Lt. Governor, who’ll be a great voice for South Florida, and progressives generally.

The issue for conservatives is whether to stay home or vote for Libertarian Adrian Wyllie. The choice for progressives is whether to vote in this one at all, given the choice between two Republicans. The thing is, one is crazy, secretive, and possibly corrupt; the other is a bit of a weather-vane, but shows signs of humanity, and at least the wind is blowing more or less in the right direction.

Attorney General

They say Pam Blondi, the incumbent, will win because George Sheldon didn’t raise enough money. That means more years of bigotry and embarrassment for the state of Florida. She’s virulently, flailingly anti-gay-marriage (and, one suspects, anti-gay full stop). She’s unserious: Bondi really did get Gov. Scott to delay an execution to allow her to go to a fundraiser. George Sheldon on the other hand, is serious, and would do a fine job. What a pity it looks like he won’t get the chance this time. Vote for Sheldon.

CFO

Jeff Atwater (R), a big insider, is expected to romp against Will Rankin (D), who hasn’t made much of an impression.

Commissioner of Agriculture

This is actually also the consumer affairs portfolio, and it’s a pity for consumers that it remains in Adam Putnam’s Republican hands, but the state Dems haven’t done much for their ticket this year; I’ll vote for Thaddeus Hamilton because he’s not Putnam.

State Rep District 114

I’ve written about this before–Eric Fresen must go. Daisy Baez is a strong candidate. Ross Handcock is a good guy who unfortunately has persuaded himself he’s the people’s choice as an independent candidate, which looks to me like the best thing that could ever happen to Fresen. Certainly, if you’re a Republican and are disgusted by Fresen, but don’t want to vote for a Democrat, Hancock is your man. Otherwise, vote Baez. (Let me know if you need a yard sign.)

Three DCA Retention Elections

All three have sterling records – vote YES for all three.

Vote yes to retain Judge Barbara Lago (86% of bar respondents recommended Lagoa for retention), Judge Thomas Logue (91% of bar respondents recommended Logue for retention), and Judge Vance E. Salter (92% of bar respondents recommended Salter for retention).

Miami-Dade County Court Judge

Tough call. Go with the experience but dubious temperament of incumbent Jacqueline Schwartz (UM JD ’91) or go with the kinder, gentler but far less experienced attorney Frank Bocanegra? Bocanegra is on his second career after being a police officer for 30 years and then City Manager for the Town of Miami Lakes, which is why he has only seven years attorney experience without being a young ‘un. His campaign bio (more on this later) says he is currently an adjunct professor at Miami Dade College and St. Thomas University teaching Criminal Justice and Business Law. I know someone who says he’s a real nice guy.

First problem is, one of my basic principles for judicial elections is to prefer people with at least 15 years legal experience–and to demand at least 10 years–before voting for someone as a trial judge, a job that requires a lot of immediate evidentiary and procedural rulings from the bench and for which the State of Florida provides little support in the way of law clerks and the like. Bocanegra fails that experience test, and I gather that even in the few years since he left law school his court room experience has been limited. The Herald’s editorial says Bocanegra “currently” works for the Public Defender’s office, but if he’s ever worked there at all it seems that Bocanegra is embarrassed about it because this fact doesn’t appear anywhere on his otherwise-extensive campaign biography (he’s a Kentucky Colonel!), which I do not see as at all a good sign and is another reason I feel uncomfortable about suggesting you should be voting for him.

On the other hand, it seems Judge Schwartz has a temper, and being forced into a runoff by just a few votes doesn’t seem to have improved it.

The Herald endorsed Schwartz in the first round, then reversed field and endorsed Bocanegra:

Since the primary, the Miami Herald reported an incident at a Coconut Grove convenience store in which the owner said that Ms. Schwartz demanded that he remove an opponent’s oversized campaign sign from the parking lot outside or display hers, too, then cursed at him when he said he could not because he was not the property owner. The story continues that the judge called Miami code enforcement, which made the store owner remove the too-large sign.

This raises sufficient questions about the judge’s demeanor. The individuals interviewed at the convenience store — a cashier corroborated the story in a sworn statement — said they did not know she was a judge when she came in.

Ms. Schwartz has not responded adequately to the allegations. She told the Editorial Board that it would not be “wise” to talk about them in light of a complaint filed with the Judicial Qualifications Commission. She also referred a Herald reporter’s questions to her political consultant, Bob Levy. Mr. Levy told the Editorial Board this week that she denied, to him, that she directed unseemly profanity toward the store owner.

I too endorsed Schwartz the first time around, if halfheartedly, writing,

There are three candidates. Jacqueline Schwartz is the incumbent. She’s endorsed by the Herald – and by the Christian Family coalition. The challengers are Rachel Glorioso Dooley (17 years experience) and Frank Bocanegra (six (!) years experience). Again, I’m voting incumbent. Then again, Dooley has support in the bar and outpolled Swartz on competence: 39% saying Schwarz was not qualified but only 21% saying that of Dooley. Dooley was endorsed by the league of prosecutors. There’s some case for a change here, but not quite enough for me.

So here we are again, and meanwhile allegedly Schwartz has had a public blowup off the bench – a pretty serious one.

So I had a look at the Cuban American Bar Association poll of lawyers (I usually look only at the more inclusive and larger-sample Dade County Bar poll), and although it’s based on a small sample (n=229) it is pretty dire: Only 9.5% rated Judge Jacqueline Schwartz as “Exceptionally Qualified”, and only 31.4% rated her as “Qualified”; a whopping 59.0% rated her as “Unqualified”. Trouble is, Frank Bocanegra’s numbers were not much better: he got 11.1% Exceptionally Qualified, 33.3% Qualified, and 55.6% Unqualified. I don’t think there’s much difference to be found there although I suppose one might hope that Bocanegra might learn on the job.

I also reached out to some local lawyers I know. What I got was mostly hearsay: they hadn’t appeared in front of Judge Schwartz themselves, but they knew people who had, and what they heard ranged from not good to awful. It’s only hearsay, but it’s what I’ve got.

So, like I said, a tough choice. At this minute I’m leaning towards Bocanegra, mostly based on that hearsay, but this could easily change.

Update (10/31): I just learned of this Oct. 27 New Times article, County Judge Candidate Once Sued in Federal Court Over Harassment Allegations which reports on the City of Miami Lakes’s $21,000 settlement of a claim of a campaign of harassment:

In February 2007, when Bocanegra was a major on the county police department, Abella spoke at a Miami Lakes council meeting to argue against a mundane ordinance, proposed by Councilwoman Nancy Simon, concerning residents’ posting of signs along suburban streets. In the back of his truck, Abella also had his own sign: “Councilmember Nancy Simon wants to pollute Miami Lakes with signs.”

After leaving the meeting, Abella says, he was intimidated in the parking lot by police officers who didn’t like what he’d said. And then, he says, he was systematically harassed over months: He says that police stopped him and threatened to issue a citation if he didn’t remove the sign from the back of his truck, and that on several occasions other officers gave him bogus parking tickets and citations for ostensible violations like blocking handicapped parking spaces. Major Bocanegra, Abella alleges, used his officers to “make our life a living hell.”

Abella went to federal court, claiming he had been intimidated as retaliation for expressing his First Amendment rights. He named numerous defendants, including Bocanegra, Simon, and several officers, and the legal wrangling went on for years. Finally, earlier this year, the case was settled for around $21,000, says Dennis Kerbel, who represented the county.

A spokesman from Bocanegra’s campaign office referred comment about Abella’s allegations to Kerbel, who says the claims of harassment were frivolous.

Without knowing more, it’s hard to tell what to make of this story.

Property Appraiser

This one is a no-brainer: Pedro Garcia, who used to be the Property Appraiser until being turfed out in the previous election, may not be the change-maker we need in the job, but the alternative is a term-limited state Representative and, well, hack, named Eddy Gonzalez who is utterly unqualified for the post. Let’s not politicize the office. Back to the past, rather than forward into the deep end. (In a sign of strange bedfellows, or that all politics is local, or that principles don’t matter when your party is on the verge of forgetting you, Senator Marco Rubio endorsed Gonzalez. Ick.)

Next: Voting Guide Part Two: Florida Constitutional Amendments & Miami-Dade Charter Amendments.

Posted in 2014 Election, Florida, Miami | 5 Comments

John Oliver Makes Supreme Court Oral Argument Much More Interesting to Watch

Do not watch while drinking coffee.

Posted in Law: The Supremes | Leave a comment