Author Archives: Michael Froomkin

Watching a Precedent Happen

Posted on November 26, 2004 by Michael Froomkin

The New York Times has an entertaining story today describing how a precedent is born. In this case, other courts seized on attractive legal reasoning even though the entire opinion turned out to be based on facts that had not taken the trouble to exist. See Legal Precedent Doesn't Let Facts Stand in the Way for the details.

I suppose it helps to be a lawyer to understand why this isn't nearly as weird as it sounds. Judging from the article, the original opinion was one that guided the parties — evidence is admissible if the following conditions exist. Yes, the judge wrote the opinion thinking those conditions existed…but when they turned out not to exist, the opinion was still valid as it explained why the evidence was not admissible after all. So it wasn't dicta. And if in fact other courts found the reasoning persuasive, so much the better for them. (Whether in fact the opinion is correct is, however, a whole different question….)

Posted in Law: Criminal Law | 6 Comments

XP SP2, So Far, So-So

Posted on November 26, 2004 by Michael Froomkin

I finally broke down an installed SP2 on my laptop, a bright blue Dell 300m. SP2 had been running fine on my desk top for a while, and also trouble-free on my wife's desktop, plus the laptop maker's web site endorsed it, plus all the tech columns I read (notably Ed Bott) endorsed it, so I figured, it's time.

The results are mixed. The laptop seems a little slower, especially on boot up. And one other change I made at the same time is not working out at all well. Having read all this tech advice about XP, I saw that there was a strong consensus that I shouldn't ordinarily be logged in as an 'administrator' but should be operating as a 'limited' account to prevent anything untoward taking over my PC.

Well, OK, I'm a very obedient guy when it comes to computer security (unlike most of the rest of my life), so I create a 'root' account, make it an administrator and change my usual account to 'limited' status. But now when I try to turn off the computer, both Explorer and the 'Power Meter' hang. This doesn't seem to happen when I am running solely as 'root'. All I can say is….harrumph.

Update: The indefatigable Ed Bott notes that I've run into a known Win XP problem with the 'limited' permissions identity. HARRUMPH again: they release a major service pack supposedly aimed at fixing security holes and they can't fix something like this which is a known bug — one with security implications — regarding the relationship between the MS OS and the MS Explorer programs? Come on guys!

Posted in Software | 4 Comments

What? A Croc?

Posted on November 25, 2004 by Michael Froomkin

It seems that the scenic lake in the center of campus has attracted an unwanted visitor:

The Department of Public Safety, by permission of the Florida Fish and Wildlife Commission, has arranged for the capture and relocation of a 9-foot, 250-pound American crocodile that has taken up residence in Lake Osceola. Pesky Critters, a well-known local wildlife control company, will be at the lake over the next few days until the animal is captured. Public Safety reminds everyone that this large, carnivorous animal is a protected species and, by law, should not be fed, harassed, or approached for any reason except by the Pesky Critters staff. There are no known attacks on humans by crocodiles in the United States, but that does not mean that if provoked or threatened it could not happen. Everyone is encouraged to follow the law and common sense by leaving the crocodile alone. Public Safety will monitor and report any changes in the status as they become available. Any sightings of the animal on land should be reported to Public Safety

Fortunately, I'm in DC visiting the folks for the next few days.

Update: Our crocodile seems to be bucking a trend in crocodile migration — most of them are going south.

Posted in U.Miami | Comments Off on What? A Croc?

There is Hope for Us All

Posted on November 24, 2004 by Michael Froomkin

Reading A Scholar's Book Adds Layers of Complexity to the Schindler Legend together with Superman is bad role model reinforces something I have long believed about law graduates, and indeed suggests it is a more general human tendency.

Law students typically graduate with substantial debt. The path of least resistance is work in firms, which pays well, or work in large firms, which pays very well. It is very hard to land any sort of public interest work without experience, and the pay is relatively low, especially for those with debt and especially for those with debt and families. (A compromise is government work, which pays ok, and is in theory work for the commonweal.)

So I think a significant number of people [no, not everyone!] just surrender when they work for the firm. They figure they can't be a saint (or Mother Theresa, or Superman, or Ralph Nader before he went nuts), either because the sacrifices are too great — and anyway no opportunity seems available. So they give up and go corporate, and in time stop looking for even the chances to do good in small ways or part time. (It doesn't help that junior lawyers in firms are encouraged to compete for promotion to partner, and some firms do not smile on non revenue enhancing activities, although the enlightened ones do.)

The truth, though, is that Superman is a myth (and so, to some extent, is Mother Theresa, but that's another story). There was a real Schindler. It seems that he wasn't such a great guy in many ways: a drinker, an adulterer, maybe a thief. But he rose to an occasion.

There is hope for us all.

Posted in Law School | 10 Comments

My Packets Take a Detour

Posted on November 23, 2004 by Michael Froomkin

I am trying to telnet (remote access) to a machine about a block and a half away. But my residential DSL provider is Bell South. The machine is on the campus at UM. And tonight my packets can't quite seem to get there….could it be because my packets have to take quite a long detour — through a bad neighborhood — to get across the street?

Continue reading →

Posted in Internet | 5 Comments

The Tie That Might UnBind

Posted on November 23, 2004 by Michael Froomkin

Salim Ahmed Hamdan has smart lawyers.

Guantanamo Detainee Asks Supreme Court to Intervene: Attorneys for a detainee at the U.S. military prison in Guantanamo Bay, Cuba, have asked the Supreme Court for emergency intervention to settle the legality of the military commissions set up by the Pentagon to prosecute hundreds of the alleged al Qaeda and Taliban fighters.

Lawyers representing a Yemeni detainee accused of serving as Osama bin Laden's bodyguard, joined by former military justice lawyers, argued that they be allowed to skip the appellate stage of their case and have the Supreme Court make a decision now. They say waiting while the case wends its way through the judicial process will leave the government's commission process in limbo and prolong the imprisonment of detainees, some of whom have been held at the U.S. military prison for nearly three years.

A federal judge ruled on Nov. 8 that the special military trials, revived by the Pentagon after the Sept. 11, 2001, terrorist attacks, are illegal and cannot continue. He agreed with Hamdan's lawyers that the detainees — considered “enemy combatants,” not prisoners of war, by the Bush administration — were not receiving fair legal treatment under the commissions process and had no effective ability to challenge the accusations against them.

Not to mention that Chief Justice Rehnquist may not be able to sit on the case now due to ill health, but may be well (or replaced) later. And a tie vote upholds the lower court decision. And the District Court ruled for Hamdan. And who knows if maybe the Court of Appeals might go the other way, shifting the effect of a hung court…

Posted in Guantanamo | Comments Off on The Tie That Might UnBind