Author Archives: Michael Froomkin

For the Paranoid in Your Life

drive.jpgA USB Flash Drive disguised as broken cable. 2GB of extra security at least until the TSA puts it on the watch list.

(Via Schneier)

Or consider the (likely more useful) RFID Blocking Wallet and the RFID Blocking Passport Billfold.

Did you know that there are people out there who specially target paranoids?

Update: pointers to interesting techno-toys welcomed.

Posted in Shopping | 4 Comments

Head v. Head v. Heart

Part of my head says that there may be reasons to nationalize the auto companies in order to insulate workers from the effects of the current panic. Another part of my head says that this ought to be possible via a bankruptcy workout.

In practice, of course, we are not yet ready to do nationalizations (give it a few months and tens of billions) but instead will give the shareholders and management a giant payment from tax money.

Which leads my heart to say something like this.

Posted in Econ & Money | 1 Comment

Memories Are Short

Today's NYT has a buried article on some of the Bush administration's latest good-bye presents for the nation: various appointments that will last long into the next administration.

The article, White House Memo – On His Way Out, Bush Leads Others In, by Jim Rutenberg, claims that these appointments are mostly uncontroversial. If so, that's only because memories are short.

Consider this paragraph:

That same day, Mr. Bush appointed a longtime family friend and former business partner, Fred V. Malek, to the board of visitors of the United States Military Academy. Mr. Malek, who was a partner with Mr. Bush in the Texas Rangers baseball team, will serve for three years. A West Point graduate, he has donated generously to its campus; his appointment, like the others, provoked no complaint.

That's amazing. We're talking about the guy who was Nixon's hatchet man and political manipulator and who wrote the infamous Jew-counting “Malek Memo”. But then forgetting Malek's history appears to be a well-entrenched DC phenomenon.

Posted in Politics: The Party of Sleaze | 4 Comments

Imagine the Ineffective Assitance of Counsel Motions

Southern District of Florida Blog has a very disturbing item about the consequences of the Public Defender elections in Jacksonville.

…the newly elected PD, supported by the Fraternal Order of Police, fired all the top lawyers at the office.

[quoting News4 Jacksonville]

At least one of the attorneys told Channel 4 he believes the mass firings were a form of payback.

The firings came on the eighth anniversary of one of the office's most notable legal triumphs. On Nov. 21, 2000, taxpayer-supported public defender lawyers proved that a Jacksonville teen, Brenton Butler, was not guilty of robbery and murder.

It may seem hard to see what we gain from having defense counsel for the impoverished elected, although it's also easy to see how an appointed official could enact the same sort of abuses. The issues are many, including

  • What ethical rules do or should constrain the newly elected PD? (Is this a bar issue?)
  • What ethical, statutory, or constitutional rules give the employees in the Jacksonville PD's office rights to protest their dismissal?
  • What sort of claims will future clients have for ineffective assistance of counsel if they can show any sort of pattern or practice of avoiding certain types of arguments?

These are all potentially interesting questions, but I'm only going to address the issues on this list that I feel competent to speak about.

The constitutional lawyer in me wonders if the fired lawyers have claims under the Elrod v. Burns, 427 U.S. 347(1976) and Branti v. Finkel, 445 U.S. 507 (1980) line of cases.

As it happens, a very similar though has occurred to a lot of people in connection with the somewhat analagous US Attorney firings. Here's how David C. Weiss summarized the state of the law in his recent Michigan Law Review note, Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U.S. Attorney Removals, 107 Mich. L. Rev. 317 (2008):

Public employees may challenge dismissals by claiming that the firing violated their First Amendment rights to free speech and association; however, that path is unavailable to USAs. The Supreme Court has held that a person cannot be forced to forfeit her First Amendment protections as a condition of public employment, [FN203] but the prohibition on encroachment of speech is not absolute. [FN204] Generally, if an employee fired for her speech can demonstrate that the speech at issue is a matter of “public concern,” [FN205] a court will engage in a balancing test between the interest of the fired employee and the employer-state in serving the public. [FN206] Despite the Court finding significant safeguards for employees in the First Amendment, [FN207] USAs do not enjoy such protection because they are “policymaking” employees. [FN208]

Neither can the USAs bring a due process claim based on a property interest in their positions. Property interests in employment are statutory— not constitutional—entitlements. [FN209] The Supreme Court has broadly interpreted “property” protection, [FN210] but if an employee's status is provisional, untenured, or otherwise lacking a reasonable basis for an entitlement to her employment, an employee does not have a property interest in her employment. [FN211] Government employees who serve as at-will employees do not have a property interest in their continued employment, [FN212] and as presidential appointees …

Whether the fired PDs were “policymaking” under this test, I leave to others who know the PD's office better. I would note, however, that the issue of whether a public employee has a constitutionally cognizable property interest in a job for purposes of triggering a Due Process Clause analysis isn't quite as simple as the quote above makes it sound. In a series of decisions the Supreme Court has made it clear that the test is very unclear: it's not simply what it says in the statute, but rather the whole enchilada of workplace rules and expectations. In one leading case, for example, an employee who served on a series of one-year contracts and was not rehired at the end of a year was held to have a cognizable interest in the job because everyone in the office understood and acted as if those contracts were always and routinely renewed.

Again, I don't know what the facts are here, but there might be a claim if the employment relationship in the Jacksonville PD's office fit that pattern.

As it happens, I have always been a doubter about the wisdom of courts automatically giving state employees outside the civil service system tenure rights akin to the civil service. I think the spoils system actually has something to recommend it that is often too quickly dismissed by judges: it promotes a valuable type of accountability. And by that I don't mean primarily accountability among the employees who (Austrian economists might say) will be living in incentivising fear of job loss, but rather accountability of the elected head of the office who can't hide behind civil service rules to disclaim personal responsibility for what the office does.

Stories like this one out of Jacksonville certainly put that predilection to the test. It is another example of a lesson we've been learning since at least the Nixon administration (but for which the current lot serves as a master class): that when the heads of offices are determined to undermine the mission of their office, it is very hard to stop them.

Update: More at law.com

Posted in Law: Criminal Law | 1 Comment

Not Everything That Happens Will Happen Today

dbyrne.JPGWe've got David Byrne Tickets for his upcoming concert at The Fillmore Miami Beach on Dec. 13.

This is good.

I just hope he sings. Back in '04, something about Miami made Byrne think dark thoughts about fakery

Down by the lounge and pool, it's a meat market. Artificially enhanced specimens of both sexes stroll the grounds. Even the hostess has enormous breasts. The staff speak in sweet, breathy high-pitched tones — like they’re all little girls. Nothing is real. It’s a shocking change from Mexico, even though I realize many of these folks might have come from south of the border.

The venue, the Gusman theater — one of the over-the-top movie/theater palaces that John Eberson built across the country and around the world — is in the center of town. The State Theater in Sydney and the Majestic in San Antonio are other examples. As in some of the others, there is a vaulted, deep blue sky with little stars that twinkle. Fake classical pavilions create a kind of skyline and serve as outposts for spot operators.

… and this extends to music:

I think if a show has enough spectacle, pre-recorded vocals are permissible. Then the show is not about the emotive and personal power of the singer, but about the flash, the sets, the dancing boys and girls, the cool effects and sight gags. One could also say that the singer might be more easily replaced in these kinds of shows. The singer is a just another modular part, like any of the technicians or dancers.

Despite this, I love reading Byrne's online journal. Miami seems to be the last US stop on the tour, and then there's a significant hiatus until Hong Kong. Perhaps he's staying in town a while?

Hey David, if by some miracle you ever read this, I would love to buy you lunch or dinner — or you can come over for a drink. Who knows, I might not even bore you. If nothing else, I'm probably a little different from the people you usually meet.

(Then again, the guy has obviously thought carefully about online music distribution. So maybe I would be boring…)

Posted in Kultcha | 1 Comment

In Which I Do the Inconceivable and Rise to the Defense of the Otherwise Indefensible Illeana Ros-Lehtinen

My Congressperson, Ileana Ros-Lehtinen, hung up on President-elect Obama — twice and then issued an error-filled press release about it.

A Florida congresswoman — convinced she was being prank-called by a Barack Obama sound-alike — hung up on the actual president-elect Wednesday.

Florida Rep. Ileana Ros-Lehtinen was told by an aide that Obama wanted to speak with her. According to a statement released by her office, the Republican congresswoman cut off the caller, telling him she thought “this is a joke from one of the South Florida radio stations known for these pranks.” She then hung up.

Much as it pains me, I think I'll have to defend IR-L from some of the inevitable jokes, at least if the call was during morning drive-time. I can just see the local 'zoo format' jocks pulling a stunt like this.

And, anyway, think about it — on any rational calculation doesn't President-elect Obama have about eight million better things to do than call Ileana Ros-Lehtinen? As she herself apparently admitted:

When an amused Obama called again, Ros-Lehtinen he was either “very gracious” to reach across the aisle by contacting her, or “had run out of folks to call, if you are truly calling me.”

Indeed.

But it does make you wonder how many people Obama has called in the last month who have had the same reaction. I bet it's not a small number.

(Note that I'm not defending Ileana Ros-Lehtinen's office's inability to spell the President-elect's name — and that of his chief of staff, Rahm Emanuel — in the press release she put out about the incident. If only that were the only thing IR-L gets wrong….)

I do hope that Obama is not under any illusions that he owes anything to Miami's revanchist Cubans when it comes to normalizing relations with Cuba. It's now clear from the latest poll that a even a majority of Cuban-Americans in South Florida want to end the embargo.

Posted in Politics: FL-18 | 3 Comments