Author Archives: Michael Froomkin

Rule of Law

Posted on December 14, 2010 by Michael Froomkin

Suppose that after Bush v. Gore, someone had proposed as a testable hypothesis that an administration that took office thanks to a court ruling of dubious fidelity to stated norms of the rule of law would govern in defiance of those norms.

What would we say today about that hypothesis?

It’s “looking good“?

(Bonus legal contortion.)

[Original draft 12/19/2007: In preparation for my blog redesign, I found draft blog posts that somehow never made it to publication. This is one of them.]

2010: As we’ve just passed the 10th anniversary of Bush v. Gore, it seems like a time to post this, although people are starting not to care, which is itself a bad sign. The Obama administration’s decision not to prosecute anyone important from the Bush administration will surely come back to haunt us as it amounts to de facto legitimation — or at least acceptance which will in time be treated as legitimation — of their tactics. So even if the Obama appointees are more inclined to follow the rule of law than were their predecessors, they’ve still set it back in the end. It’s odd to have an administration that is both so Caeserist (or is that Bonapartist?) as regards state power and yet so often so inept at using political power. Unless of course they are in fact getting just what they wanted.

Posted in Civil Liberties | Comments Off on Rule of Law

Richard Holbrooke, RIP

Posted on December 13, 2010 by Michael Froomkin

Another, if rather grim, reminder of how lucky I am to be doing so well.: Veteran Diplomat Richard Holbrooke Dies. 

I’ve read that if you don’t make it to the hospital within an hour of the aorta bursting, that’s pretty much it for your chances. I walked in maybe 20 minutes after the back pain started, and ended up collapsing in the receiving area of the emergency room while answering the paperwork questions. Which if you are going to pick a place to collapse is not such a bad choice.

Since my discharge from the hospital, I’ve met a lot of medical personnel and EMTs who tell me that a burst in the aorta is one of the things that they train for, over and over — but not something they see that often. And clearly, a walking, talking, fairly hale survivor is even more unusual.

Earlier: Aortas in the News.

Posted in Personal, Science/Medicine | 3 Comments

I So Don’t Do This Networking Stuff

Posted on December 13, 2010 by Michael Froomkin

How to Save the World, a blog I generally like, has a repulsive essay, The Ten Keys To Effective Networking.

The item is repulsive in part because it credibly argues that careers are furthered by treating people as means rather then ends, by selling yourself in a soundbite, and the display and exchange of favors. I’m fine with the exchange of favors stuff — I’m not that much of an ivory tower guy — and I understand that there are times in life when you have to sell. But the idea that you “prune your networks” (abandon people who are not useful), and “understand that every conversation is an implicit contract” (nothing can be abstractly interesting?) is just too much like what I least liked about living in Washington D.C.

And yes, there are a bunch of neat people I’ve met over the years that I wish I kept up with. Life just gets in the way.

[Original draft 3/21/2004. As part of my blog redesign, I’ve been going through draft blog posts that somehow never made it to publication. This is one of them.]

2010: I was reminded of this last night: we went to a very swanky law school event at an large and quite elegant home some small ways south of here. The guest list was studded with important people and large donors.   I didn’t recognize many of them, and ran away from one of the few I did — a right-wing local congressperson — since it seemed like an occasion where I should be polite.   We spoke to a few people we knew.  We went home.

Posted in Readings, Zombie Posts | 6 Comments

Can Lawyers Hire Folks to Pose As Law Students to Get Links to the Firm’s Web Site?

Posted on December 12, 2010 by Michael Froomkin

Here’s a real-life event that might make a good short-answer problem for a Professional Responsibility final exam.

Today I received an email purporting to be from a law student. The sender’s email address was [common-first-name]@edu-student-mail.org. The subject line was “Suggestion for your page [URL]” with the URL being a fairly obscure page from an Internet law seminar I gave in 1998.

Here’s the text:

Hi!

I came across your site today while doing some research on intellectual property for one of my law classes. You provide some really great resources, but on your page http://www.law.miami.edu/~froomkin/sem98/sem11.htm I tried to click on your link to http://www.eff.org/pub/Intellectual_property and it doesn’t seem to be working. I also found this page in my research which could provide similar information if you wanted to check it out 🙂 [here followed a URL to a site advertising personal injury lawyers that I’ve cut out to avoid rewarding this behavior].

Best,

[First-Name Last-Name]

I responded with an email asking what law school she attended. Haven’t gotten an answer.

Suppose, just hypothetically (we have no reason to believe this at present), that the name is a fake and this was in fact an advertising message for the California PI firm sponsoring the website in the message.

Is this (hypothetical) duplicity banned by the California legal ethics code? I’m not a member of the California Bar, so I don’t know the answer to this one. A cursory glance at Rule 1-400. Advertising and Solicitation. makes me wonder if there isn’t maybe a gap in the rules.

The California ethics rules prohibit making false statements to potential clients, actual clients, opposing parties, and the courts. They also prohibit false statements to third parties about cases in which the lawyer is involved. But there doesn’t seem to be anything about hiring an agent to make a false statement to a third party (me) designed to get (let us hypothesize) accurate publicity for the lawyer, that is a link to the firm’s site.

The rules do say, among other things, that

A communication [defined as: “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client”] or a solicitation [“any communication: (1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain;”] (as defined herein) shall not:

(1) Contain any untrue statement; or

(2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public

It doesn’t seem to me that, true or false, the email I quoted above qualifies as either a “communication” or a “solicitation” under these rules. So I have to think it is not covered.

But shouldn’t sleazy lying marketing designed to promote a website be as unethical as a lie to a potential client or lies on that website?

Maybe the person who sent that email was real. But even if she is, the gap in the rules this email made me think about may be real too.

(I’d welcome enlightenment from anyone more familiar with the California rules.)

[Original draft 2/2/10.  In preparation for my blog redesign, I’ve been going through draft blog posts that somehow never made it to publication. This is one of them.]

12/12/2010: Never did get an answer to my email.

Posted in Law: Ethics, Zombie Posts | Comments Off on Can Lawyers Hire Folks to Pose As Law Students to Get Links to the Firm’s Web Site?

Elves are from Europe, Mortals from Cleveland

Posted on December 12, 2010 by Michael Froomkin

ElfpunkEurope and Faerie [Update: link fixed] suggests that “the entire genre of elfpunk is really about the way intelligent and sympathetic Europeans and Americans view each other today.”

There’s at least enough truth in this proposed metaphor about modern fantasy with elves and cities to make a very entertaining blog entry, even if I’m not 100% certain — well, not even 50% certain — as to which of the elves-at-the-gates books I’ve read for which this sort of works qualify as elfpunk.

(spotted via 0xDECAFBAD).

[Original draft 3/29/2004. As part of my blog redesign, I’ve been going through draft blog posts that somehow never made it to publication. This is one of them.]

2010: I should have deleted this one, but I love the title.

Posted in Readings, Zombie Posts | 1 Comment

Aortas in the News

Posted on December 11, 2010 by Michael Froomkin

Richard Holbrooke has suffered an aortic dissection. This is more or less the same thing that happened to me nine months ago. Being 69, his prognosis cannot be good. Being one of the lucky ones, partly because I was much younger, I can’t help but hope he somehow pulls through. If he does, don’t expect him on any shuttle diplomacy for a while: I’m not 100% yet myself, although I’m getting there.

Posted in Science/Medicine | 2 Comments