Thank god for our founding fathers — John Adams, honorable lawyer.

Whose values do the lawyers for Guantanamo detainees share? John Adams’, for one:

John Adams, in his old age, called his defense of British soldiers in 1770 “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.” That’s quite a statement, coming as it does from perhaps the most underappreciated great man in American history.

The day after British soldiers mortally wounded five Americans on a cobbled square in Boston, thirty-four-year-old Adams was visted in his office near the stairs of the Town Office by a Boston merchant , James Forest. “With tears streaming from his eyes” (according to the recollection of Adams), Forest asked Adams to defend the soldiers and their captain, Thomas Preston. Adams understood that taking the case would not only subject him to criticism, but might jeopardize his legal practice or even risk the safety of himself and his family. But Adams believed deeply that every person deserved a defense, and he took on the case without hesitation. For his efforts, he would receive the modest sum of eighteen guineas.

So when Lynn Cheney’s group, keepamericasafe.com, suggests that there’s something un-American about the fact that lawyers in the Justice Department have defended Guantanamo detainees, the real question is this: why is keepamericasafe.com spouting the un-American propaganda that those accused of wrongdoing are not entitled to a defense and to requiring proof of their wrongdoing? In fact, as Adam Serwer reports,

Lt. Col. David Frakt, who has represented detainees both in military and civilian courts, said that the lawyers who secured due process rights for detainees were ultimately vindicated. “There is an assumption there that has proven to be a fallacy, which is that everyone at Guantanamo was a terrorist,” Frakt says, pointing to the fact that the government has lost three-quarters of the habeas petitions filed by detainees at Guantanamo. “What we have seen over and over and over is that the vast majority of detainees at Guantanamo are innocent.”

This is, in short, ugly, anti-American propaganda:

Our capacity to be just is measured by our capacity to do justice to those most in need of it.

The only way to do justice is to provide opportunities for justice. 50 years ago, in Gideon v. Wainwright, the Supreme Court ruled that a criminal defendant has a constitutional right to representation by a lawyer and that, if he cannot afford one, the state must provide him with one. Now, with our states and local governments starving for money, this foundation of our justice system is sorely threatened. Two lawyers whose careers have been devoted to these issues, Virginia Sloan and (my good friend) Cait Clarke, write:

The report of the Constitution Project’s National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, is the most comprehensive examination of the indigent defense crisis in over 30 years. The Committee, whose members represent every relevant part of the criminal justice system, including prosecutors, judges, victim advocates, defenders, bar leaders, and scholars, unanimously concluded that this country’s indigent defense system is in crisis, that the government has for too long ignored its obligation to provide lawyers in these cases, and that it cannot be ignored anymore. The report outlines 22 urgently-needed recommendations for reform.

One of the most important recommendations is that indigent defense should be provided through an independent, non-partisan authority that appoints qualified, experienced lawyers who have adequate resources. Of equal significance is the recommendation that the federal government assist the states in ensuring that the Sixth Amendment is protected and that poor people have the kind of lawyers to which they are constitutionally entitled. The federal government provides badly-needed funding for law enforcement and prosecutors, but to continue doing so without also providing funding for public defense services simply exacerbates the already untenable situation.

Another recommendation is that the federal government should create a federal office of public defense services to distribute funds, collect data, promulgate standards, and develop and deliver training similar to the federally-supported training for state and local prosecutors. Additionally, the federal government should require all states to abide by national standards for public defense. Adoption of the American Bar Association’s Ten Principles would provide constitutionally adequate legal representation for criminal defendants unable to afford an attorney.

One innovative idea that will improve the quality of representation for indigent defendants is to create a national fellowship program to cultivate and train the next generation of indigent defense lawyers. This would dramatically increase the number and caliber of lawyers working to secure justice for clients and communities. Equal Justice Works, working in partnership with the Southern Public Defender Training Center (SPDTC), is proposing to do just that.

Justice Department: Torture Memos were “insane” but not the product of professional misconduct

From Jurist

The US Department of Justice (DOJ) [official website] has overruled the findings of a report [DOJ Ethics Report] released Friday concluding that two Bush administration lawyers committed professional misconduct when they wrote memos [JURIST news archive] authorizing the use of certain interrogation techniques that critics have called torture. Instead, the DOJ said that John Yoo [academic profile; JURIST news archive], and Jay Bybee [official profile; JURIST news archive] were only guilty of “poor judgment” in writing the memos. An internal ethics investigation by the Office of Professional Responsibility (OPR) concluded that Yoo had committed “intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” The report also found that Bybee had committed professional misconduct when he acted in “reckless disregard” of his duty to exercise independent legal advice. However, David Margolis, an associate deputy attorney general, released a separate memo [DOJ Margolis Report] overruling the OPR’s report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct.

Back in August of 2008, when I began writing this blog, I explained my then long-held conviction that the White House Office of Legal Counsel — and in particular Jay Bybee (now a federal judge) and John Yoo (a tenured law professor) had acted immorally and in violation of their professional duties as lawyers in writing the so-called “torture memos” that gave legal approval to the torture the Bush Administration began. Both the DOJ Report and the DOJ Margolis Report confirm the details of  what I wrote back in 2008 — the memos were plainly written to justify a pre-determined conclusion. As I wrote then:

Somehow a justice department lawyer who is now a tenured professor at Boalt Hall Law School at U.C. Berkeley, along with his boss, who is now a judge on the U.S. Court of Appeals for the Ninth Circuit, thought they could get away with this utterly fictional definition of “severe pain.” And they did. Plainly, though, Yoo does not believe in constraints. In December 2005 he stated in a Chicago debate that there is no law that could prevent the President from theoretically ordering the torture of a child of a suspect in custody – including by crushing that child’s testicles.”

And now the DOJ Margolis Report concludes that “the’ evidence of the knowing violations . . . led us to conclude that Yoo put his desire to accommodate the client above his obligation to provide thorough, objective, and candid. legal advice, and that he thereforecommitted intentional professional misconduct.”

Mr. Margolis in the DOJ Margolis Report also stated:

While I have declined to adopt O.P.R.’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client.

The reports really are remarkable testaments to how far the Bush Administration went to force its desire to torture within a rule of law that does not permit torture. Among other things, the DOJ Ethics Report quotes other Bush Justice Department appointees stating that John Yoo needed “adult supervision” and describing the torture memos as “insane,” a “one-sided effort to eliminate any hurdles posed by the torture law,” “plainly wrong,”  and “slovenly”:

Our view that the memoranda were seriously deficient was consistent with comments made by some of tlie former Department officials we interviewed, even though those individuals would not necessarily agree witl! some of our findings in this matter. [Daniel] Levin stated that when he first read the Bybee Memo, “[I had} the same reaction I think everybody who reads it has - 'this is insane, who wrote this?'". Jack Goldsmith found that the memoranda were "riddled with error," concluded that key portions were "plainly wrong," .and characterized them as a "one-sided effort to eliminate any hurdles posed by the torture law." [Steven G.] Bradbury told us that Yoo did not adequately consider counter arguments in writing the memoranda and that “somebody should have exercised some adult leadership” with respect to Yoo’s section on the Commander-tn-Chief powers. [Michael] Mukasey acknowledged that the Bybee Memo was “a slovenly mistake,” even though he urged us not to find misconduct.

” Insane” about sums it up. You’re not acting as a lawyer if the research and analysis you do is insane. But, I guess, “insane” is not a sufficiently firm legal standard for Mr. Margolis. The funny thing is that I’d expect any reviewing official who didn’t see discern a standard in the report he was reviewing to state the proper standard and make his own determination whether the facts set forth satisfied or did not satisfy that standard. Or he could have sent the matter back to the ethics people with instruction to set forth a clear standard. Instead, he plainly was looking for a way to find no ethical violations here. Honestly, if the flat out lies about the law contained in the torture memos is permitted, then anything is permitted in the “war on terror.” Which, of course, is exactly Yoo’s position.

Archers Daniel Midland abuses copyright law to censor criticism — corporations have the right to free speech, but not the people who criticize them?

Some corporations apparently believe in free speech for themselves but not for individuals. The first video below is a deadly dull piece of propagandistic pap in which Patricia A. Woertz, Chairman, President and CEO of Archer Daniels Midland (ADM), USA drones on (someone get her better training for dealing with the media!) about ADM’s profound importance to feeding the world. The piece was produced in advance of the recent Annual Meeting of the World Economic Forum in Davos, Switzerland.

ADM has, top it mildly, been the subject of considerable ire, criticism, and even criminal prosecution for price fixing (the subject of Matt Damon’s recent film The Informant and Fair Fight in the Marketplace, an excerpt of which appears below’s Woertz’s blathering), political corruption, destruction of the rainforests, and the forced labor of children.

A couple of days ago I posted on my Facebook page what I thought was a hilarious edit of the Woertz video in which some of her original words were retained and many were dubbed over to make it appear as if she were speaking openly on behalf of an evil multinational bent on the gross and horrific exploitation of the world and especially of multinational food markets. I thought it was hilarious piece of political critique. No one could have mistaken it as an “official” ADM production, but plainly it hit a nerve at ADM.

Today I noticed that when I click on the video on my Facebook profile a message appears that it is “no longer available due to a copyright claim by Archers Daniel Midland Company” and that if I click through to YouTube there’s no page for the video at all, not even a page with the same empty video box and takedown message.

This is outright copyright abuse. Criticism is fair use. When anyone asks whether in fact fair use is grounded in the Constitution’s guarantee of free speech, all you need is to think of a situation like this — one can appropriate copyrighted works to criticize and parody the copyright holder. And to use the copyright laws to silence that critique has nothing to do with protecting intellectual property and the rights of a creator to profit from his, her, or its creation: it’s unconstitutional censorship! (Peter Bouchard wrote a good summary yesterday on ” The Battle against Bogus Takedowns, a topic I’ve touched on in the past.”

Learn that government regulation can be very effective in under 2 minutes.

Next time someone tells you government regulation doesn’t do any good, ask them to watch the video below and whether they’d rather be driving a car built before the government started regulating automobile safety.

We can’t trust eye witnesses.

I tell my students the jury is our truth-telling machine. We don’t have God’s Videotape of reality. (Even if we did, would he have enough camera angles and high enough resolution to give us complete confidence in what the tape seems to show?)

But juries, of course, depend on evidence, a substantial amount of which is the evidence of witnesses. As US Supreme Court Justice William J. Brennan stated in his dissent in Watkins v. U.S., 449 U.S. 341, 352 (1982), there is “nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”

But eyewitness identification evidence is the leading cause of wrongful conviction in the United States. There’s a lot of scholarship on perceptual biases — ways our perception is shaped not by reality but, rather, by assumptions our minds impose on our perceptions — but I think the study discussed and shown below is one of the most vivid demonstrations I’ve ever seen of the unreliability of eyewitness testimony. 75% of the subjects did not even notice that the person for whom they began filling out the experimental consent form, after he’d bent down behind the counter, had been replaced by a different person!

If you understand the uses and limits of maps, you can begin to understand the uses and limits of legal rules (and it doesn’t hurt to know the offside rules in soccer and hockey)

Jeff Lipshaw of Suffolk Law School has been asked to teach Suffolk’s six credit contracts course next year and has “been puzzling . . . about . . . teaching philosophy.” As he claims, “Contracts is the often the bane of the first year experience, and I am thinking about hitting the reasons head on.” I think Lipshaw’s point is the same I’ve been trying to get across frequently in this blog — learning law (and perhaps, especially, contract law)  is not a matter of learning rules you apply to the world, thence to go on your merry way as a lawyer who knows and understands law. Rules are useful guides, but different rules are useful in different situations; when a situation changes, a particular rule may be useless — it may be too specific, and not take into account specifics never contemplated when the rule was formulated, or it may be too general to be of any practical use.

Lipshaw writes (emphasis added):

I’ve concluded instead that the way to approach the subject (and relieve some student angst at the same time) is to reject at the outset the idea that what they are learning maps on the real world.  It is more helpful to think of contract law as most casebooks begin – with the idea of the objective law of contracts, or, as we say more explicitly in areas like partnership, the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. . . . Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No – an integrated law of contracts, if one exists, is a figment of the . . . imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).

Put otherwise, if the reality of private ordering is metropolitan Boston, contract doctrine is a map, based on the mapmaker’s view of what is important.  But you could have a road map of major highways, a topographic map, a detailed street map, a map of population densities, etc.  This is merely one map, or several competing maps. . . . .

Finally, the difficulty with putting aside whatever sense of reality we might have, and reconstructing the rules of the model (or game?) on their own is a little like trying to master the rules of cricket without making analogies to baseball, or the rules of rugby without making analogies to American or international football.  Let’s say you are playing cricket, and you do something that cause the other team to cry “foul!”  You have to make your argument why what you did was legal in cricket terms, not baseball terms.  That doesn’t mean there couldn’t have been other ways to play cricket, or that the world would be better off if we interpreted the rules of cricket differently, but to win the argument we have to fashion it in a way that appears to be consistent with cricket.  Contract law is the set of rules making up the objective contract litigation game, and some arguments based on those rules are cricket, and some are not.

A map that I draw you to get you to my house will likely be of little use in helping you navigate your way to other places in Ohio, but it will be very helpful as a means of getting you to my house. Then again, most maps of Ohio I’ve seen would be of little use in getting you to my house (which is on a road leading from one side street ending in 2 other side streets, none of which lead to a street (much less a highway) of any significance). And I could explain to you how being offside in soccer is akin to being offside in hockey, and doing so would help you understand the common purposes of the 2 rules (to avoid cherry picking), but when I’m arguing about being offside in soccer I better not be using rules and jargon from ice hockey.

Or, if you’d like to get even more involved in considering the role of maps in understanding the uses and abuses of rules, it’s well worth considering an article written by Boaventura De Sousa Santos, Law: a Map of Misreading. Toward a Postmodern Conception of Law, 14 J. of Law and Society 279, 282-283 (1987)(footnotes omitted; hyperlinks added):

UNDERSTANDING MAPS

The main structural feature of maps is that in order to fulfill their function they inevitably distort reality. The great Argentinian writer Jorge Luis Borges has told us the story of the emperor who ordered the production of an exact map ofhis empire. He insisted that the map should be exact to the most minute detail. The best cartographers of the time were engaged in this important project. Eventually, they produced the map and, indeed, it could not possibly be more exact, as it coincided point by point with the empire. However, to their frustration, it was not a very practical map, since it was of the same size asthe empire.

To be practical a map cannot coincide point by point with reality. However, the distortion of reality thus produced will not automatically involve the distortion of truth, if the mechanisms by which the distortion of reality is accomplished are known and can be controlled. And, indeed, that is the case. . . . As the American cartographer Mark Monmonier put it:

[A]ll advantages and limitations of maps derive from the degree to which maps reduce and generalise reality, compress or expand shapes and distances and portray selected phenomena with signs that communicate without necessarily resembling visible or invisible characteristics of the landscapes. The three elements of a map are interdependent. Scale influences the amount of detail that can be shown and determines whether or not a particular kind of symbol will be visually effective.

Maps should be convenient to use. There is thus a permanent tension in maps between representation and orientation. These are contradictory claims and maps are always unstable compromises between them. Too much representation may hinder orientation, as we saw in Borges’s map. Inversely, a very accurate orientation may result from a rather poor and elementary representation of reality.

When you are invited to a party in a house whose location you do not know, the host will probably draw a map which will be very effective in orienting you though very inaccurate in representing the features of the environment along the way to your destination. One more example: some of you may have seen medieval portolans, those maps of ports and coasts well-renowned in the Middle Ages which, though very poor as far as representation of the globe goes, were very effective in orienting navigators .at sea. There are maps that solve the tension between representation and orientation in favour of representation. These I would call, borrowing from French cartography, image maps. Other maps solve the tension in favourof orientation. These are instrumental maps.

I would like to suggest that this dialectic of representation and orientation applies to law as much as it applies to maps. In the analysis of .the relations between law and society we should [consider] the simple paradigm of correspondence/non-correspondence. In the following I will linger on maps a little while to analyse in more detail each one of the procedures through which maps distort reality. In the process I hope to interest you in the fascinating world of maps. As Josef Konvitz has said, “lt is a supreme irony that maps, though they are one ofthe most common cultural metaphors, are still far from occupying the place they deserve in the history of mentalities.”

One common distortion of which most of us remain unaware is the ways the traditional mercator projection of the map of the world grossly distorts the relative sizes of the earth’s various landmasses. Below is the Arno Peters map , which, as Sirius Bark of Temple 3 explains “isn’t perfect (every map (and rule) creates some distortion), but . . . does address some of the overall size distortions which dominate our more well-known Mercator projections” (emphasis and hyperlinks added):

A cell phone really (not just abstractly) is different than an address book.

The Ohio Supreme Court ruled yesterday (pdf) that police officers must obtain a search warrant before searching the contents of a suspect’s cell phone unless the officers’ safety is at stake. The specific data at issue were the records of the telephone calls made to and from the suspect’s cell phone.  As the court made clear, “[o]nce the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.” Slip op., ¶23.

In reaching its decision, the court first distinguished cell phones from “closed containers,” “physical objects capable of holding other physical objects.” Such objects on or in the vicinity of a suspect are subject to search without a warrant. ” Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’  One such example is a cigarette package containing drugs found in a person’s pocket.” Id., ¶19 (citations omitted). The dissenin the Ohio case concluded that the cell phone is a “closed container” because “a cell phone’s digital address book is akin to traditional address books carried on the person. Courts have upheld police officers’ search of an address book found on an arrestee’s person during a search incident to a lawful arrest.  The phone’s call list is similar, showing a list of telephone numbers that called to or were called from the phone.” Id., ¶34.

The dissent’s reasoning seems odd. The phone’s call list is not “similar” to an “address book.” The call list is electronically generated by making and receiving telephone calls, and thus is the same kind of electronically generated information regularly produced by, among other devices, your laptop. Thus, the majority of the court were convinced that because modern cell phones “have the capacity for storing immense amounts of private information” they are thus are more like laptop computers, in which arrestees have significant privacy interests — in contrast to address books or pagers found on their persons, in which defendants have lesser privacy interests. Id., ¶18. The court did not equate cell phones precisely to laptops (though no doubt iPhone users might take exception to the court’s failure to do so), but the similarity, in combination with the fact the police have the means necessary by warrant to obtain information from a cell phone, compelled the court’s conclusion:

Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents. Id., ¶24.

The dissent, on the other hand, unable to distinguish a cell phone from an address book, accused the majority of “needlessly embark[ing] upon a review of cell phone capabilities in the abstract.” Id., ¶30.

Funny, I didn’t know that the review of differences between cell phones and address books in 2009 required “abstract” thinking.

Can we force a prisoner to be medicated in order to be competent enough to be executed?

Truly only Franz Kafka could do justice to some of the questions that arise in our justice system. In Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003), the defendant argued that he could not be executed because he was not mentally competent and that he could not be forced to take medication to make him medically competent because to do so would make him eligible for execution and therefore could by no means be in his “best medical interest.” The 8th Circuit disagreed, requiring the question whether the medication to make the defendant competent  to be answered “without regard to whether there [was] a pending date of execution.” Id. at 1026. Both the death sentence and involuntary medication regime had been lawfully imposed. The defendant thus could no longer assert either a life interest nor a liberty interest.

Now, though, the North Carolina Criminal Law Blog suggests that more recent U.S. Supreme Court precedents “may collectively stand for the notion that the execution of an inmate who is competent only by virtue of forced medication might violate the Eighth Amendment’s evolving standards of decency.”

I find the suggestion encouraging, but I am skeptical. We seem loathe to find reasons not to execute people these days.

Those naive little innocents may be a lot smarter than you, Mr. Prosecutor.

The range between online fluency and online ignorance is remarkable these days. It is largely, though certainly not entirely, generational. One example of this gap in fluency was the discovery by one of my more technically proficient students in a case we read in my Contracts course of ignorance regarding the technical implications of an online transaction. The ignorance, in my student’s opinion, undermined entirely the judge’s reasoning.

Ars Technica brings up another example, this one perhaps disclosing the naivety of a prosecutor:

Rodney Bradford, a 19-year-old Brooklyn resident, was arrested last month for allegedly robbing a man at gunpoint. This, in itself, was not a very newsworthy event—until his defense lawyer discovered that Bradford had made an update to his Facebook profile at the time of the robbery. Bradford had insisted that he was at his father’s Harlem apartment at the time, and that the update was made from there. When the district attorney verified the claims with Bradford’s father and stepmother and the IP information with Facebook, the charges against Bradford were dropped.

But, of course, “it’s obvious to everyone . . . that the Facebook posting could have been made by someone else, and there would be no way to truly verify who was sitting in front of the computer at the time.” As John Jay College of Criminal Justice law instructor Joseph Pollini points out, it might not be sufficient for the prosecutor to shrug off the possibility simply because the alibi is a teenager’s — teenagers likely know better than anyone how to construct such alibis (and that older people often fail to see through them):

Some of the brightest people on the Internet are teenagers. They know the Internet better than a lot of people. Why? Because they use it all the time.

Homeland uber alles.

I’m not Hannah Arendt’s biggest fan, but the prominence she gave to “banality of evil” is an accomplishment that ought to be honored through the ages. As Wikipedia explains her thesis as well as it can be concisely described, “the great evils in history generally, and the Holocaust in particular, were not executed by fanatics or sociopaths but rather by ordinary people who accepted the premises of their state and therefore participated with the view that their actions were normal.” The role of the legal profession in Nazi Germany is, I think, a relatively neglected topic, but one can recognize when judges engage in specious reasoning to transform ugly, degrading, murderous, and unspeakable acts into the “normal” way of protecting our homeland.

I’ve compared the case of Maher Ahar to The Trial. I’m afraid that comparing it to fiction was my own effort to deflect the ugliness. As Glenn Greenwald describes Arar’s nightmare:

Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” — despite his pleas that he would be tortured — to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.

Yesterday, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of Arar’s lawsuit (pdf) alleging, among other things, that his treatment by U.S. officials violated his constitutional rights to due process. Why? Because he couldn’t name the people who did what they did to him:

Arar alleges that “Defendants” — undifferentiated — “denied Mr. Arar effective access to consular assistance, the courts, his lawyers, and family members” in order to effectuate his removal to Syria. But he fails to specify any culpable action taken by any single defendant, and does not allege the “meeting of the minds” that a plausible conspiracy claim requires. He alleges (in passive voice) that his requests to make phone calls “were ignored,” and that “he was told” that he was not entitled to a lawyer, but he fails to link these denials to any defendant, named or unnamed. Given this omission, . . . we agree with the District Court and the panel majority that this Count of the complaint must be dismissed. Slip op. at 24-25 (emphasis added).

So next time you’re hauled in off the streets, held incommunicado, and sent to Syria to be tortured, be sure to get down the names of the “officials” doing this to you. Otherwise, you have no constitutional protections against this treatment. It’s all in the name of national security, and that trumps all, right?

This is “judging”?

Using the legal system to intimidate — Cook County Prosecutor and Northwestern’s Medill Innocence Project

Before beginning my teaching career, I was a commercial litigator for almost 12 years. As a result, many think I’m one of those people ready to sue at the drop of a hat. But I think that litigators might be among the most litigation-averse people around — we know the price litigation extracts, and we know it’s one of the least desirable means of dispute resolution around. (That’s not to say it isn’t crucial — one has to resort to bold and difficult measures when others fail.)

So litigators know too that suing people — forcing them into litigation — is a powerful weapon. Sometimes it is used flat out to intimidate. An example of litigation being used for, apparently, nothing but intimidation is pointed out by techdirt:

The Medill Innocence Project at Northwestern University “gives undergraduate students firsthand experience in investigating wrongful convictions.” The Project’s efforts have freed 11 prisoners, including 5 who were on death row. But now, according to the Chicago Tribune, in preparation for a hearing the Project’s efforts have won for another prisoner, “[t]he Cook County state’s attorney subpoenaed the students’ grades, notes and recordings of witness interviews, the class syllabus and even e-mails they sent to each other and to professor David Protess of the university’s Medill School of Journalism.”

I can’t say I disagree with Northwestern’s lawyer, who said the prosecutors subpoena is “an unwarranted fishing expedition that focuses on the messenger — rather than on the possibility that an innocent man has spent more than three decades behind bars. Prosecutors, he said, ’seem to be peeved’ at the Innocence Project for uncovering a wrongful conviction.”

Copyright and Good Judgment: Damien Hirst, Idiot.

In England, a 17 year old artist named Cartrain created a collage that included an image of Damien Hirst’s diamond encrusted skull, a work entitled “For the Love of God.” As the Independent reports: “The collages were put up for sale on a website, 100artists.com. Hirst reported him to the Design and Artists Copyright Society and a string of legal letters were sent to Cartrain’s art dealer, Tom Cuthbert, at 100artworks.com, about the teenager’s pieces, also called For the Love of God. The online gallerysurrendered them to Hirst with a verbal apology.” So, in July, Cartrain walked into a museum showing some of Hirst’s works and walked off with a box of pencils from one of the installations. As Cartrain explained, “That same day I made up a fake police appeal poster advertising that the pencils had been removed from the Tate and that if anyone had any information they should contact the police on the phone number advertised.” “A few weeks later I went out and I returned home to find out the art and antiques squad from New Scotland Yard had called round with a warrant for my arrest.” According to the Independent, Cartrain “was told by custody officers that the pencils were valued at £500,000 and that he had damaged ‘the concept of a public artwork titled Pharmacy … valued at £10,000,000.’ Cartrain is on bail and, if convicted, his actions will feature among the highest value modern art thefts in Britain. Does Damien Hirst have the right to foreclose the use of images in which he owns the copyright from collages? Plainly, I don’ t think so. But it’s also one of those situations in which I’d tell a client to just back off. Reportedly, Hirst sold the skull for $100 million. The image is ubiquitous. I know I’ve sent it to friends as part of an app on Facebook. Do you, I’d ask, really need to be so heavy-handed in connection with a kid trying to get his start as an artist? (hat tip to Techdirt)

Do we really want anyone to have free online access to court files?

Court documents are public. You can go down to any courthouse and examine the files from any case you want. But there has been no smooth transition to making those documents publicly available on the internet. That may be changing, though I’m not entirely sure I agree with the majority of commentators on the subject that making those documents freely available to anyone with an internet connection is a good thing.

As explained by the Wall Street Journal, “Digital records of court filings, briefs and transcripts sit behind paywalls like Lexis and Westlaw.” Lawyers, non-profits, and researchers can use PACER to access all documents filed in the federal courts, but PACER has 2 significant defects: (1) it costs 8 cents per page to download any document (an amount that can add up rapidly to access a sufficient amount of material to make sense of any given document), and (2) you cannot search the system by keyword.

As the WSJ puts it: That’s right: In 2009, judicial records in the U.S. are essentially unsearchable.” But last week, a team from Princeton’s Center for Information Technology Policy unveiled a Firefox add-on that promises over time to make all those documents filed in federal courts freely available and word searchable:

They whipped up a sleek little add-on to the popular Firefox Internet browser called RECAP (PACER spelled backward). Legit users of the federal court system download it. Then each time they drop eight pennies, it deposits a copy of the page in the free Internet archive. This data joins other poached information, all of which is formatted, relabeled and made searchable—the kind of customer service government tends to skimp on. Users can even see what has already been liberated while within the government system, a stylish and subversive touch. This week, as RECAP picked up speed, various court offices got skittish and began sending out emails acknowledging the project’s legality, but “strongly discouraging” its use anyway.

I’m as great an advocate of government (and corporate) transparency as almost anyone, but I can’t help but be troubled by the possibility that someday all the files in every court in the land will be word searchable and accessible to anyone with an internet connection. It’s one thing to go to a courthouse (or even through many free online sites) to access the papers filed by the parties to a particular lawsuit. Courts are public institutions, and the fact their documents have always been and continue to be accessible to anyone (willing to visit the courthouse where those papers are filed) has been fundamental to the greatness of our judicial system.

But papers filed in court do not necessarily state facts. Think of what friends of yours have been falsely and outrageously accused of in bitter business and divorce cases. Think of all the ridiculously frivolous lawsuits “tort reformers” are always screaming about. Think about how often the report of a filing of a lawsuit, which sets forth allegations that are merely allegations, not assertions of proven fact, are reported and read as fact. Do you really want anyone with an internet connection to be able to search the files of all the courts in the land for your name, pull up the documents from that case, and set forth on their website what some witness has stated without regard to the larger context of the court case that might reveal the witnesses lack of credibility, hostility, limited knowledge, subjectivity, or sheer misapprehension?

Just one example of the sort of problems free access to court records could create was described by Charlotte Watson, Executivec Director for the New York State Office for the Prevention of Domestic Violence in a public hearing held by the New York State Commission on Public Access to Court Records. Ms. Watson testified as follows (at pages 82 and following of the transcript of the entire hearing (pdf):

Ms. Watson: What we innocently put on the “Web” a few years ago is now being used in ways we never considered, including invasive crimes such as identity theft. We’ve heard horror stories of how stalking victims were tracked and harmed through information posted and available to all for good or bad intent. We’ve all seen those annoying pop-up adds on our computers, advertising the ability to find literally, anyone. As a domestic violence advocate with more than 27 years in the field, and one concerned about privacy in general, those ads, and the open, easy access to so much personal information in what we term the “information age” are truly frightening.

Nowhere is this more of a concern than when considering the safety and security of victims of domestic violence, sexual assault and stalking. We know that domestic violence is pervasive, on-going, life-changing reality for millions of women and children in this country, and stalking is an integral part of the dynamic of domestic violence.

Domestic violence victims know all too well their abusers will use any means to control and terrify them and keep them from escaping. It is not unusual for a batterer to monitor the odometer on a victim’s car, record the victim’s phone calls, or use hidden cameras. Imagine what it would be like to have a Global Positioning Satellite unit attached to your car and monitored constantly by someone in authority over you. This is the daily reality of many victims of domestic violence with the state of technology today.

What will tomorrow hold? It’s extremely difficulty and often dangerous for battered women to escape their abusers. Many find it necessary to flee the area entirely in hope of

finding safety. Those who are able to get away live with the extreme fear of being found by their abuser. A losing battle for approximately 1,100 U.S. women each year who were murdered by their intimate partners after fleeing, as well as, countless others who are re-assaulted.

There have been many attempts to help victims find safety. . . . Unfortunately, at the same time we are recognizing the needs of domestic violence victims, the trend toward “open government” and access to information has become an easy, affordable and valuable weapon for abusers.

As advocates for victims of crime, however, we do recognize the need to find ways to increase the accountability of systems, including the courts, in their responses and decisions. It’s vital that these interests are balanced against victim safety and the privacy of users of our court process. In the effort to increase accountabilities, the court must be mindful of even the appearance of culpability, should granting easy access to information result in harm to a victim.

It should never be the case that potential consumers of the courts must weigh the need for safety through court intervention against the need for privacy and anonymity

which may also impact safety. In light of these concerns, I will outline a number of recommendations regarding open access to court information. . . . The negative implications include, as has been mentioned:

A chilling effect on victims who are considering using the court for legal relief. While we applaud the fact that family court and matrimonial records will not be subject to open access, I must emphasize that under current law, criminal court is the only court in which many victims may seek relief. Consider, for example, a victim who’s being abused or stalked by a boyfriend. To obtain an order of protection, that victim will have to disclose significant personal information and potentially embarrassing details about the abuse in criminal court. Under the Conference of Chief Justices and the Conference of State Court Administrators Guidelines, this information would readily be accessible by the public and the offender. It’s not a leap to say the victims will be reluctant to pursue an order of protection under these circumstances. Is it fair to ask a victim to sacrifice her privacy for the safety she’s entitled to under the law?

Imagine the heyday the pornography and smut industry will have with such easy access to crime scene photos of horribly violent rapes and homicides. Imagine the websurfer who accidentally opens a porn site or the errant adolescent going to sneak a peak only to discover the crime scene photo of his naked mother lying in a pool of blood. At what point would the balace tip from accountability at this point to culpability? At what price? Who and how would these decisions be made as to where to draw the line?

There are safety risks for crime victims and witnesses. As I noted earlier, abusers often track and monitor their victims as a means of maintaining control. These behaviors typically increase when a victim leaves the abuser. Whenever a victim becomes involved with the court system, whether voluntarily, as a result of mandatory arrest or pro-prosecution policies or for some other reason, precious information about her location, status, current name, phone numbers and other circumstances is disclosed. Such disclosure is a major concern for my agency and victim advocates across the state. We know that abusers will access this information and use it every way possible to stalk, threaten, assault or kill the victim and maybe her children.

This can be a problem even when the victim is using the court system for something unrelated to domestic violence. For example, if these involved in a motor vehicle accident resulting in legal action and the information, includinging simply the location of the Court is posted on the Internet, her address would be posted making it all too easy for her abuser to find her. Perhaps she relocates to escape the abuser and later becomes the beneficiary of a probated estate. As a result, identifying information could be posted creating similar safety risks. Ironically, if the victim is seeking a legal name change, even this information could be posted on the Web, making her efforts at anonymity fruitless.

It’s important to note she may not be a victim at the time of her interaction with the court on the myriad of non-domestic violence related actions that could bring her to court. After one date with a stalker, she would be vulnerable to his gaining valuable information about her that could lead to her demise. There’s an increased opportunity for identity theft. Destroying the victim’s credit and reputation is a tactic already used by batterers. Open public court records will only increase the opportunity for accessing and misusing personal information.

We’re concerned about the secondary uses of the information. Information stored by the courts will most certainly be used for purposes that move far from the original public policy intent of governmental accountability. It will be gleaned and sifted and compiled along with other information to create entirely new databases that can be misused and misinterpreted. Once the information is gathered for another database, it can never be taken back or corrected. In domestic violence cases, false or misleading information could be deliberately planted by the batterer in spurious legal filings that include slanderous material against the victim which are then posted on the Web for all to see and use.

Internet access could undermine the victim in custody proceedings. Seeking custody is one of the most powerful tactics used by abusers to access control their victims. Abusers will use every means available to discredit the victim and prolong a custody battle. The proposed guidelines actually aid abusers in this process. Open public access to court information provides abusers with cheap and easy access to all records of any criminal proceeding, regardless of whether such information was relied upon we the court. This poses serious ramifications for victims who ultimately leave their abusers and seek custody. Economic survival or the abusers threats or false promises often compel victims to minimize or deny the events or later recant earlier statements of abuse that form the basis of a criminal prosecution. The fact that such records from a criminal proceeding and many civil proceedings will be within easy grasp of an abuser in a subsequent custody proceeding essentially re-victimizes the victim, rewards the abuser’s use of coercive tactics and facilitates the abuser’s use of custody as a weapon of control.

MR. ABRAMS: It seems to me that a good part of what you’re saying would apply to public access, regardless of whether there’s an Internet or not. When you say that “open public access — on page five — to court information provides abusers with cheap and easy access to all records of any criminal proceeding, regardless of whether such information was relied upon by the court.” The fact is that now, without an Internet — before we had an Internet, there was open public access to court information, regardless of whether the information was relied upon by the court. Does your office favor limiting access to the information itself, regardless of whether it’s going on

the Internet?

MS. WATSON: Our concern is the same one expressed many times today; that’s the cheap, easy affordable part of it. You can actually be sitting in your bedroom, walk over to your computer and find the information. It’s very different from having to go down to the courthouse and go through the records and find the information, being able to sit in California, sit on your computer, pull up your victim, your target’s information on a court record in New York.

Tort law serves a lot of purposes tort reformers don’t recognize, though Robert Bork might have changed his mind.

The law tends to be rational, though the rationale behind it is not always apparent. But when you see people screaming about irrational laws, they’re often failing to see, if not ignoring, what the laws do accomplish.

You’ll hear again and again in connection with proposals to reform our system of health insurance that the real way to cut medical costs is to reform our tort system so that doctors don’t practice excessively expensive “defensive medicine.” Don’t believe it. I’m not saying that our malpractice system is perfect, but merely cutting back on malpractice cases and recoveries because of their impact on the practice of medicine ignores two important consequences of the malpractice system that we better be sure are provided in other ways before we significantly cut it back.

First, the malpractice system maintains the high quality of health care we do have. My dentist, who is German, told me she hates practicing dental surgery in Germany because the standard of care is so low. She’s always afraid the anaesthesiologists will kill the patients. In contrast, she explains that the standard of care is so good here precisely because of the fear of malpractice liability.

Second, judges and juries in some jurisdictions likely do err in favor of patients in finding doctors at fault. Why? Because our health insurance system is so inadequate and, regardless of the doctor’s wrongdoing, a patient who suffers a bad outcome from a medical procedure is going to need money to take care of the bad outcome. If it isn’t going to come from health insurance, why not from the doctor’s malpractice carrier?

The second problem would be better taken care of by instituting a no-fault compensation scheme for people who suffer bad outcomes from medical procedures. But doctors have always, for reasons I do not fathom, resisted such a system, while at the same time they cry, understandably, about the blame game played in malpractice cases.

There have to be better ways than the malpractice system to maintain our nation’s high standard of medical care. But until we’ve devised such a system, we ought to be cautious about dismantling the system that currently maintains that high standard.

The funny thing is that no one likes a personal injury lawyer until they need one. Robert Bork, of course, is a notorious conservative critic of our legal system who is often portrayed as a victim as a result of the rejection of his nomination by Ronald Reagan to the Supreme Court. Bork’s critique of the legal system has included an attack on the tort system, calling it, as Bloomberg News reported last month, an irrational and unpredictable process that subjects businesses to the kind of predation practiced by pirates:

In a 1995 opinion piece published in the Washington Times, Bork and Theodore Olson, who later became a top Justice Department official, criticized what they called the “expensive, capricious and unpredictable” civil justice system in the U.S.

“Today’s merchant enters the marketplace with trepidation — anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates,” they wrote.

But Bork recently sued the Yale Club of New York City, “claiming he tripped and fell because of the club’s negligence as he ascended a dais to give a speech.” His amended complaint alleges that “[w]hen it was his turn to deliver” a speech at the Yale Club, he “approached the dais. Because of the unreasonable height of the dais, without stairs or a handrail, Mr. Bork fell backwards as he attempted to mount the dais, striking his left leg on the side of the dais and striking his head on a heat register.” Among other defensess asserted by the Yale Club in its answer are that the risks of mounting the dais were “open and obvious” and that Bork has already been compensated (no doubt through his health insurance, which I bet is as good as it comes) for some or all of his economic loss.

Bork isn’t the first “hypocrite of tort reform,” nor will he be the last. But next time you know someone who’s been badly injured, you might want to keep in mind the ways he or she might get compensated for the costs arising from the injury and the ways the law discourages the conditions that caused the injury.

Amazon, EULAs, and Orwell’s memory hole.

Can Amazon take back from y0ur Kindle a book you thought you’d purchased? Well, it did exactly that — Kindle owners who’d obtained ebooks of George Orwell’s 1984 and Animal Farm discovered last week that Amazon had simply deleted those books from their Kindles. No one seems to have known Amazon could do that — the fact the Kindle connects electronically to the internet has until now always been considered a reason the Kindle is better than competing ebook readers.

But did Amazon have the contractual right to do what it did?

The first thing to note is that you don’t “buy” ebooks from Amazon. As the Kindle’s End User License Agreement (”EULA”) states, you merely purchase a “license” to use the ebooks. The license is the right to use the ebooks under the terms of the EULA.

But does the EULA allow Amazon to unilaterally take back a book? I’m not so sure. I think likely Amazon is in breach. Nowhere in the agreement do I see any provision that gives Amazon the right to do what it did. Moroever, the EULA states that the license is one to keep a “permanent” copy of the text you are obtaining and to view, use, and display that text an “unlimited number of times”:

Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times.

The fact Amazon refunded the price of the Orwell books would not excuse its breach. You can’t enter a contract and then unilaterally tell the other side to the deal you want to undo it.

So Amazon may indeed be in breach. But does it matter? First, it would be difficult to prove any damage over and above the “purchase” price, which Amazon has refunded. But there are two more important points. First, as I’ve written before about EULAs, anytime you enter one online you are probably agreeing that the agreement can be amended at any time without even any notice to you. Amazon may simply argue that its recall of the books was an amendment of the agreement.

Second, what are you going to do, sue? You can’t. The EULA requires any dispute arising under it to be arbitrated in Seatlle! Are you going to go to the trouble of hiring a lawyer in Seattle to start an arbitration proceeding so that you might be able to recover a few more bucks? Of course not.

Actions like these are why class actions exist — where a company engages in actions that cause small amounts of damage to many people, it’s not worth any individual’s time or money to pursue a remedy, and even if it were the remedy is so small that the company’s gains from the improper conduct are worth it. As Wikipedia explains:

[A] class action may overcome “the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 388, 344 (7th Cir. 1997)). “A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.” Amchem Prods., Inc., 521 U.S. at 617 (quoting Mace, 109 F.3d at 344). In other words, a class action ensures that a defendant who engages in widespread harm – but does so minimally against each individual plaintiff – must compensate those individuals for their injuries. For example, thousands of shareholders of a public company may have losses too small to justify separate lawsuits, but a class action can be brought efficiently on behalf of all shareholders. Perhaps even more important than compensation is that class treatment of claims may be the only way to impose the costs of wrongdoing on the wrongdoer, thus deterring future wrongdoing.

But you can’t bring a class action in arbitration. That’s why all these EULAs require arbitration — so that there’s no opportunity for a class action that would impose on the company the real damages it would be liable for to all the people it has wronged by its conduct.

Pretty clever, eh? Just remember, when you push for “tort reform,” you’re really looking to benefit wrongdoers, not to right the defects of a “broken” litigation system.

ADDENDUM: Maybe there is hope after all – in Harris v. Blockbuster, a federal district court in Texas ruling under Texas state law refused to enforce an arbitration provision precisely because the contract provided a unilateral right to amend. I’ve got to research this point more, but it seems on its face to be consistent with Texas law. I see reason, though, to think it wouldn’t be under the law of many states. The court says the agreement to arbitrate is “illusory” because it can be amended without notice. I would think that in most states the un-amended contract would be enforceable and terms that were added by amendment MIGHT be deemed illusory.

The Madoff Investigation Should Focus on the SEC.

Ever since the Bernie Madoff scandal broke, I’ve wondered: was the SEC paid off? It’s hard to believe the SEC could have investigated Madoff as it did, see what anyone who looked closely could see, and not dig sufficiently to uncover the fraud. And a story today from the Washington Post only adds gasoline to the fire of that suspicion. An SEC lawyer told her superiors in 2004 that “information provided by Madoff during her review didn’t add up and suggest[ed] a set of questions to ask his firm.” She was instructed in response to focus on other matters. And her immediate supervisor’s boss later married Madoff’s niece!

The suspicious SEC lawyer, Genevievette Walker-Lightfoot, “had previously worked at the American Stock Exchange, where she developed an expertise in specialized trading strategies.” After she was diverted to other matters, she never was asked about the Madoff investigation again, even during an agency investigation into Madoff in 2005 which only “found three violations of minor rules.” In 2006, Walker-Lightfoot left the SEC after filing a complaint with the agency alleging that she’d been subjected to a hostile workplace. A person familiar with the complaint said it was settled in Walker-Lightfoot’s favor.”

Madoff, incidentally, once “boasted at a business roundtable discussion about his close relationship with SEC regulators, saying “my niece just married one.”

When law doesn’t match up to reality, law loses – Connie Schultz makes an unworkable proposal.

I deeply admire Connie Schultz, but I think she was mistaken in her column yesterday that called for a change to federal copyright law that would give “news originators” the exclusive right to the news they report on their web sites for the first 24 hours after publication. The “remedies” to enforce this exclusive right would include (1) a requirement that online “aggregators” would have to “reimburse newspapers for ad revenues associated with their news reports” and (2) “injunctions” to “bar aggregators’ profiting from newspapers’ content for the first 24 hours after stories are posted.”

Ms. Schultz shows her desperation to save newspapers in calling for immediate action, implying that waiting even 6 months before enacting this law would be to wait too long.

There’s a lot wrong with this proposal I won’t go into right now with respect to the purposes of copyright law (h/t to Natalie Gauthier, on Twitter @nggautier). Here’s my problem with it merely in my capacity as a business advisor (as much a part of being a commercial lawyer as knowing the law). It’s utterly unworkable. An injunction against use is no remedy — to be effective, an injunction needs to be enforceable. How in the world is a newspaper going to enforce its exclusive right to a story against use by anyone anywhere in the world on the internet? Second, to whom do these rights and restrictions really apply? Who’s a news source? Am I when I publish something online based on my own research and thinking? When is what I publish my own research and thinking and when is it merely “aggregation.” And am I an aggregator, or just a unicellular organism floating in the vast oceans of the information and news available around the world? When would I cross the line?

It’s an utterly unworkable proposal.

I have a lot of sympathy for Ms. Schultz and her position. I’ve grown up worshiping journalists. (To be an adolescent leftist poseur back in the early ’70’s meant worshiping the New York Times and the Washington Post.) And, as my dad complains, there is a really profound problem in the loss of the check newspapers have traditionally provided with respect to local events.

But there’s no going back. Law is not going to stop the inevitable consequences of the change in technology we’re experiencing. I’m not suggesting we’re in for a wonderful new world. We’re losing a lot, and I share with Ms. Schultz the desire to save it all. But we’re not going to. We’re going to have new things. Here’s one, for example, courtesy of the artist Daniel Nolan (on Twitter @danielnolan). There’s been very little news out of Iran. What’s going on in the streets, if anything, is a matter of intense interest around the world, but newspapers have largely been rendered unable to report on events thanks to the moves of the Iranian regime. But yesterday I received a tweet from Dan that referred me to Andrew Sullivan’s blog that was reporting that instead of appearing in front of his supporters in person Mir-Hossein Mousavi “instead delivered a speech to his supporters via cell phone. The speech was then captured on camera by a demonstrator, uploaded to Facebook, picked up on Twitter, and delivered to you through this blog. And now it’s on YouTube.” As Dan put it on Twitter, “[i]f scoring at home, that’s Mousavi – cell phone – camera – facebook – twitter – blog – youtube. Now that’s an alternative info stream.”

I’m not suggesting that is the equivalent of haveing a foreign corresondent on scene (but there are no western jounralists in Tehran as far as I know), but it’s extraordinary. There have got to be better ways than Ms. Schultz’s ill-conceived proposal to make the transition to what the new technology makes available and what the new technology makes inevitable. The way is not going to be through a rather simple law. When law doesn’t match up with reality, law loses, but worse, so do we. Make intoxitants illegal, and our prisons become jammed with non-violent offenders. Don’t provide legal means to immigrants motivated to get here, and you end up with millions of undocumented residents. Outlaw abortion and you expose the poor to unregulated and unsafe medical procedures. Refuse to adapt the marketing of your product to new technologies, and engage in ineffective litigation that results in blatant injustice. . .

The justice system complements the political system: Climate Change and Human Rights.

The University of Washington School of Law recently hosted a conference entitled Three Degrees: The Law of Climate Change and Human Rights. In the words of the conference organizers:

Numerous scholars have suggested that human rights law may provide the most adequate and responsible remedy for climate-related impacts, and this conference will create an international forum to thoroughly test the available remedies, raise the legal issues associated with these remedies, and collaborate over necessary advancements in the law.

Dan Bodansky raises an interesting question about using human rights law to address the problems posed by climate change: wouldn’t the focus on individuals through the use of legal remedies detract from the big-picture policy approaches that are most needed?

Climate change mitigation involves tremendously complex tradeoffs between different values. Focusing on particular individuals or cases, or on particular human rights, can obscure these tradeoffs, making sensible policymaking difficult. Although emphasizing the effects of climate change on human rights may be a useful means of mobilizing public concern and of prodding the political process, a solution to the climate change problem will, in the end, require political decisions by states, both nationally and internationally.

I appreciate Bodansky’s preference for large-scale political movements, but I think that law-making directed prospectively at the level of a political entity (city, state, country, etc.) can and is complemented by legal remedies for individual harm. Again and again I marvel at the blindness of doctors, for example, who direct their wrath at the legal malpractice system without considering the functions the system serves above and beyond punishing doctors. A patient injured by a medical procedure needs to bear the cost of taking care of his injuries regardless of the doctor’s fault. Given the absence of universal health care and the inadequacy of much of the existing health insurance in this country, is it any wonder that juries are likely when they have the chance to choose to have the doctor’s insurance carrier pay for the injured patient’s care? We all face the risk of bad outcomes from medical procedures; doesn’t it make perfect sense to socialize that risk, to have us all share it? Until we come up with a way to do that other than the malpractice system, individual justice is the best we’ve got.

So I would say to Bodansky: unless and until we have the most effective policy solutions to the problems posed by climate change, individual, case-by-case remedies for harm caused by climate change can only help.

Prohibition doesn’t work!

Back from Amsterdam (in Chicago, waiting for a flight to Cleveland), and wondering along with Bob Herbert when we’re going to give up our “war on drugs.” It never did seem to make a lot of sense to me to deal with what it seems isprimarily a medical problem as one to be solved through the criminal justice system. I thought we’d learned better from our experience with Prohibition. As Herbert writes, “The stakes are huge, the uncertainties great, and there’s a genuine risk that liberalizing drug laws might lead to an increase in use and in addiction. But the evidence suggests that such a risk is small.” And, after all, what we’ve been doing through most of my life has been a colossal failure:

This year marks the 40th anniversary of President Richard Nixon’s start of the war on drugs, and it now appears that drugs have won.

“We’ve spent a trillion dollars prosecuting the war on drugs,” Norm Stamper, a former police chief of Seattle, told me. “What do we have to show for it? Drugs are more readily available, at lower prices and higher levels of potency. It’s a dismal failure.”