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Infamy or Praise

Updated: 2018-03-17T05:32:54.673-07:00


TGIS: Thank God It's Schadenfreude! (340)


This week's joy in the misfortune of others comes courtesy of NBC Washington (from Thursday, October 6; link good at time of posting):
Westboro Baptist Church, the Kansas-based congregation infamous for picketing the burials of slain soldiers, said it will demonstrate at Apple founder Steve Jobs' funeral - and made the announcement using an iPhone.

Margie Phelps, daughter of pastor Fred Phelps, tweeted that the church will attend Jobs' so far unannounced funeral. Apparently unaware of the irony, Phelps used an iPhone to issue the Twitter message, reported Web pro News.
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TGIS: Thank God It's Schedenfreude! (328)


This week's joy in the misfortune of others comes courtesy of The Telegraph (from Sunday, July 10; link good at time of posting):
Departing staff at the News of the World appear to have sent a parting message of disgust to former editor Rebekah Brooks in the crossword of the paper's final edition.

Despite orders allegedly given from the top of News International to ensure to "ensure there were no libels or any hidden mocking messages of the chief executive", staff appear to have found a way of mocking Mrs Brooks one last time.

Among the clues in the paper's Quickie puzzle were: "Brook", "stink", "catastrope" and "digital protection".

The clues for the Cryptic Crossword seemed to cut even closer to the bone, with examples including: "criminal enterprise", "mix in prison", "string of recordings" and "will fear new security measure".

The clue for 24 Across - which reads "Woman stares wildly at calamity" - is thought to be a reference to a photograph of Mrs Brooks staring furiously from the window of a car as she left News International's Wapping headquarters following the announcement the News of the World was to be shut down.

The answer to the clue is not one she would appreciate: "disaster".

Other answers included: "stench", "racket" and "tart".

A source at the News of the World told the Daily Mail that Mrs Brooks had ordered two loyal Sun journalists to comb the papers looking for tricks.

They said: "Rebekah tried everything to stop the staff having the last word and she utterly failed.
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A Round Tuit (62)


When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.While you place your order, I'll share a few posts which are worth your attention.If I might digress for a moment, I'll mention that some months ago my family opted to discontinue our cable television subscription. Between Apple TV and streaming Netflix, I'd found that nearly all of our entertainment needs could be satisfied without coughing-up a hunski every month to the fine folks at Comcast. Until a couple weeks ago, I was merely satisfied with that choice; there's downside — namely, my limited live sports choices — but it's outweighed by the upside — increased disposable income and fewer hours spent watching drivel, amongst other things.Since discovering what I'd missed in all the news coverage of the Casey Anthony trial and verdict, however, I've revised my opinion. Going cable-free is an unmitigated good.Friends, you can rid yourself of the social disease that is Nancy Grace and save money while doing so! I'm living proof!As distasteful as the furor surrounding the trial and disgraceful the unhinged commentary of lawyers (including Grace) on television was, the discussion in the legal blogosphere demonstrated that sane consideration and discussion of emotional legal topics is indeed possible. Shortly after Anthony was acquitted on all but a few misdemeanor counts, Brian Tannebaum offered some thoughts about the shameful coverage of the trial in the media and reaction to it online:I don't know what happened to 2-year old Caylee Anthony. Neither do you.....The jury of 12 unanimously rejected that the state proved Casey Anthony killed her daughter. CNN calls this a "stunning" conclusion. Why?Because the public knew she was guilty.....For the media now doing the typical questioning of their behavior during the trial, save it. You made your bed, you lost your bet that there would be a death sentence, and questioning yourself is the definition of hypocrisy.As for the public's "disgust," and whiny disastrous attempts at complete sentences on social media - I can't help you understand the system of American justice. You don't care. You want what you want, damn the Constitution and jury instructions. All I can say about you is that I will argue for your right to act like complete morons and I will argue for a criminal defendant's right to a fair trial, which includes the obligation of the state to prove each and every element of the charge(s) beyond and to the exclusion of a reasonable doubt.The embarrassment of the Casey Anthony verdict is not the verdict, it's everything surrounding it.The jury's verdict of "not guilty" didn't affect Elie Mystal's suspicions about her culpability, but he was as disgusted as anyone by the coverage of and reaction to her case:...I expect lawyers and people with a modicum of legal training to at least be able think about “the justice for Casey Anthony.” Look, the jury found her “not guilty,” but that doesn’t mean I have to believe that she’s “innocent.”I just fail to see the outrageous miscarriage of justice here. Was the trial unfair or rigged in some way? Was the jury tampered with? Was there some kind of “smoking gun” evidence that prosecutors were not allowed to present in front of the jury? No? Then STFU, please. The lady beat the rap. It happens.....Look, I’m not trying to defend Casey Anthony. I’m not that crazy. I’m just trying to say: “Nothing is f**ked here, dude.”Amongst those trained attorneys discussing the case anywhere except on television, "nothing is f**ked here, dude" seemed to be the general consensus. As Scott Greenfield put it, "Stercus accidit." He discussed our unease with the jury system when our questions remain unanswered:Before the verdict, eve[...]

TGIS: Thank God It's Schadenfreude! (324)


This week's joy in the misfortune of others comes courtesy of the Associated Press (from Tuesday, June 14; link good at time of posting):
An online action figure company has jumped on the Anthony Weiner sexting scandal bandwagon with a doll of the New York congressman in two versions: censored and uncensored. of Oxford, Conn., is offering the "standard" doll for $39.95 and the anatomically correct "for adults only" version for an extra $10.

Both are dressed in a gym shirt and shorts with a label that reads "Tweet This."
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TGIS: Thank God It's Schadenfreude! (322)


This week's joy in the misfortune of others comes courtesy of Reuters (from Wednesday, June 1; link good at time of posting):
Italy foiled an attempt by North Korea to import tap-dancing shoes in breach of a U.N. ban on the sale of luxury goods to Pyongyang, according to a U.N. report on the enforcement of sanctions against the North.


"In December 2010, a shipment of high-quality tap-dancing shoes was blocked at Orio al Serio Airport (Milan)," said the report by the so-called U.N. Panel of Experts, which monitors compliance with U.N. sanctions against North Korea.

A U.N. diplomat told Reuters on Tuesday that the seized shipment involved several dozen pairs of tap-dancing shoes. He said that it was not clear how the tap shoes might fit into North Korean leader Kim Jong-il's lavish lifestyle, which includes grandiose stage performances by North Korean performers.
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TGIS: Thank God It's Schadenfreude! (318)


This week's joy in the misfortune of others comes courtesy of a number of our Special Forces personnel (via (from Monday, May 2; link good at time of posting):
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TGIS: Thank God It's Schadenfreude! (312)


This week's joy in the misfortune of others comes courtesy of Reuters (from Wednesday, March 16; link good at time of posting):
Comedian Gilbert Gottfried apologized on Tuesday for a series of jokes made on Twitter about the Japanese earthquake and tsunami, comments which got him fired as the voice of insurer Aflac.

"I sincerely apologize to anyone who was offended by my attempt at humor regarding the tragedy in Japan. I meant no disrespect, and my thoughts are with the victims and their families," Gottfried said in a statement.

Since 2000, the comedian had been the voice of the quacking duck in Aflac's commercials, shouting "Af-LAC!" at opportune moments.

But the company was quick to dismiss him after a dozen jokes made on his Twitter account last weekend, many of them crude and sexual riffs on the effects of the disaster.
[Previous TGIS]

A Round Tuit (55)


When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.While you place your order, I'll share a few posts which are worth your attention.The passage of the "Obamacare" healthcare reforms was the signature legislative effort of the President's first two years in office; the defense of Obamacare is shaping-up to be the signature legal effort of his administration's next two years.This week in Florida v. Department of Health and Human Services (link provided by The Wall Street Journal), the landmark healthcare law was declared unconstitutional; the Administration will, of course, appeal. The ruling was reported by Ashby Jones:Judge Roger Vinson, a Republican appointee, said that the law’s requirement to carry insurance or pay a fee “is outside Congress’ Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not constitutional.”In contrast with the Virginia ruling from last year, Judge Vinson found that the entire health care law must be struck down; that the so-called “individual mandate” is not “severable.”....The ruling ties the score at 2-2. To date, two federal judges have upheld the law as constitutional... while two have found that Congress exceeded its constitutional authority in passing it....While I won't attempt to summarize the legal or political debate which preceded Vinson's decision (the earlier cases Jones mentions are linked in his post and were widely-discussed when issued), I will say that I find it remarkable that this ruling hinges on two screw-ups: one was a legislative mistake — in Congress' rush to draft and pass the law, a severability clause was inadvertently omitted — whereas the other was a strategic mistake — the Administration consistently argued that the individual mandate was an essential, inseparable part of the broader law, more-or-less daring the Judge to invalidate Obamacare in its entirety if he found any part objectionable. Peter Suderman explained how the Administration's brinksmanship backfired:Because the law contained no severability clause, a contingency provision that would have protected the bulk of the law should one part be ruled unconstitutional, Vinson had to decide whether in striking the mandate he should also strike some or all of the rest of the law. Supreme Court guidance on laws lacking severability clauses suggests that judges should generally seek to excise as little of the law as possible, but also to ensure that if there is a remainder, it still serves the law's overall intended objective.Therein lies the problem for the law’s legal backers. As Vinson notes in his ruling, both the administration, which is implementing the law and defending it in court, and Congress, which wrote and passed the law, have made clear that the individual mandate is an absolutely critical provision.....As a result, Vinson concludes that “the individual mandate is indisputably necessary to the Act’sinsurance market reforms, which are, in turn, indisputably necessary to the purpose of the Act.” Essentially, the administration's lawyers argued that the health care law wouldn’t work without the mandate, and Vinson took them at their word.Elie Mystal, for one, was unamused that the fate of healthcare reform seems likely to turn on a swing-vote in the Supreme Court:You know what that means? It means that very soon America will be operating under the Anthony M. Kennedy health care system. Does Justice Kennedy think that I have a right to health care? Does he think that pre-existing conditions should be covered? Is he comfort[...]

Collectively We Enjoy a Waking Dream


Gideon hosts, as he often has, a Dr. Martin Luther King, Jr. Day edition of Blawg Review this week at his A Public Defender blog. Gideon's written in past years of the lessons he's drawn from Dr. King's words and efforts and Blawg Review #294 is a worthy addition to his remarkable series of annual posts. Highlights of this edition include posts concerning the price and value of freedom, the right and wrong meanings drawn from King's words, and the real-world consequences of poorly-considered state bar rule changes. Kevin Thompson, a former Blawg Review of the Year honoree, will host next week's Blawg Review #295 at his Cyberlaw Central blog.

TGIS: Thank God It's Schadenfreude! (303)


This week's joy in the misfortune of others comes courtesy of The Telegraph (from Saturday, January 8; link good at time of posting):
The North Korean government's official Twitter account appears to have been hacked, with the feed calling for an uprising to remove the leaders from power.

The microblogging site ranted to its 11,000 followers about huge spending on nuclear weapons and leader Kim Jong-il's lavish drinking parties "while 3 million people are starving and freezing to death."


The tweets, in Korean, were unlikely to harm the internal image of the country, as internet access is widely prohibited.

However, the hacking will come as an embarrassment to the regime – especially as Saturday was thought to be the birthday of Kim Jong Un, the man believed to be poised to take over.


One tweet from @Uriminzok on Saturday read: "Let's create a new world by rooting out our people's sworn enemy Kim Jong Il and his son Kim Jong Un!"

Though it remains uncertain who coordinated the breach, South Korean citizen media sites and the Yonhap news agency attributed the scheme to South Korean hackers.
[Previous TGIS]

A Round Tuit (52)


When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.While you place your order, I'll share a few posts which are worth your attention.At times, the sounds of sirens in Tucson, Arizona this past Saturday were all but drowned-out by the noise generated by cable news commentary, partisan bickering, and angry recriminations from all quarters. The facts of the shootings of Congresswoman Gabrielle Giffords and others, to the extent those facts are yet known, need not be summarized here.In the hours and days since the tragic event, many in the legal blogosphere have taken time to comment on various aspects of the debate and to weigh-in on the forthcoming criminal trial of the accused, Jared Loughner. Though I'll not try to gather a comprehensive, or even representative, collection of those posts, I'll offer a few here which (for me at least) stood-out amongst the chatter.Killed in the attack on Representative Giffords was Federal Judge John Roll, the chief judge of the District of Arizona. In a pair of posts from Ashby Jones (see here and here), other Federal judges remembered a man reputed as "a conservative and even-handed jurist" who was "always fair-minded and absolutely attentive to everyone who appeared in his courtroom." Somewhat jarringly, they also demonstrated that it's never too soon after a judge is murdered to begin publicly fretting about the hassles involved in redistributing his caseload.Several people distinguished themselves with quick-thinking and decisive actions to subdue the gunman, bringing the horrible incident to a close before there was further loss of life. Eric Turkewitz noted those heroes' names and added another — Loughner's new defense lawyer (and former Unabomber defense lawyer) Judy Clarke:Why celebrate the defense lawyer? Because here is a person that will:Represent a hated individual;Receive death threats from other wackos out there;Be outgunned by the Department of Justice;And move from a private practice in Southern California to Arizona in order to do it, and do it for public dollars as opposed to more lucrative private ones.In other words, she and her team will voluntarily take on one of the crappiest jobs in America, and do so at great personal risk. Whatever personal risk may usually exist for the criminal defense bar — and it surely does for many who represent some tough characters with even tougher frenemies — it will likely be magnified a zillion-fold in a case like this.....And since my personal definition of a hero is a person that sacrifices safety or comfort and goes to a place of danger, and does so for the benefit of others, then these defense lawyers will fit that bill.A couple of legal bloggers commended John Green, the father of murdered nine-years-old Christina Green, for his measured and inspiring comments in the wake of his child's death; in speaking with media, Green said:This shouldn’t happen in this country, or anywhere else, but in a free society, we’re going to be subject to people like this. I prefer this to the alternative.Radley Balko wrote that Green "gets it":After all the partisan, self-serving, asinine commentary of the last two days . . . bless John Green. What remarkable perspective, composure, and clear-thinking in the face of a grief that few of us can imagine.....It’s enough to restore one’s faith in humanity.At the Popehat blog, Ken wrote of Green and his wife Roxanna:In their shoes, I would be railing against guns, against mental health laws, against politicians, against God, against anyone I could [...]

TGIS: Thank God It's Schadenfreude! (302)


This week's joy in the misfortune of others comes courtesy of the Legal In·sur·rec·tion blog (from Wednesday, January 5; link good at time of posting):


[Previous TGIS]

A Round Tuit (49)


When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.While you place your order, I'll share a few posts which are worth your attention.Criticism of the Transportation Security Administration (TSA) has been a regular feature in these Round Tuit posts. The agency's knack for implementing heavy-handed, reactionary, inefficient, and ineffective security measures in the most heavy-handed, reactionary, inefficient, and ineffective manner conceivable makes them an easy target. Hack that I am, I cannot resist taking aim at an easy target.The agency's latest initiative — widespread use of whole body imaging systems (which essentially take nude images of everyone scanned) — seemed calculated to stoke public scorn for and ridicule of our tens of thousands of federal mall cops.The public had been reassured by the Department of Homeland Security that anyone reticent about acting in the TSA's backscatter pornography could opt-out in favor of a stroll through a standard metal detector and a simple pat-down screening. By "simple pat-down screening", of course, the TSA meant a humiliating gropefest stopping (for now at least) just this side of a strip search and anal probe. Much to our dismay, it seems that the "SA" in "TSA" stands for "Sexual Assault".In an op-ed piece this past Monday, Homeland Security Secretary Janet Napolitano asked for travelers to be cooperative and patient with the TSA's "risk-based, layered security approach"; this would be more compelling if experience had not already demonstrated that the TSA indiscriminately regards everyone as a risk and treats all of us as criminals (or worse, when one considers that criminals can at least rely on some Fourth Amendment protections). Though I suspect she convinced no one, at least Secretary Napolitano managed to discuss the new screening procedures without falling into Clayton Williams territory and advising the traveling public to "just relax and enjoy it". To borrow Whoopi Goldberg's infamous characterization of Roman Polanski's crimes, those parents who decline to allow the TSA to take nude pictures of their small children can rest assured that the TSA's aggressive genital-area searches of those children isn't "rape rape".Indeed, the entire matter has seemed for some time like a cause in search of its cause célèbre; it arrived this past week in the person (and groin) of San Diego resident John Tyner. What ended with Tyner being directed to leave the San Diego airport but threatened with a hefty fine if he did so began simply enough with him doing what the TSA had claimed anyone could do — opt-out of the whole body scanning.Tyner said later that he had reservations about the safety of the machines and the invasion of personal privacy which these represent; before traveling, he'd checked the (apparently inaccurate) TSA website to find that the San Diego airport did not have the scanners. After opting-out, Tyner submitted to a metal detector check and a basic pat-down search, but declined the TSA agent's kind offer of a complimentary genital fondle: "You touch my junk and I'm going to have you arrested." He was escorted from the screening area by six agents and a police officer (seven being the magic number needed to accompany someone who's already expressed his willingness to leave rather than fly). At that point, he was told by someone else that he was obliged to return and submit to the screening even though he no longer planned to travel that day. Tyner [...]

A Round Tuit (48)


When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.While you place your order, I'll share a few posts which are worth your attention.Though the rise of digital media has made copyright much more familiar to the younger generation than it was for their predecessors, there remains a considerable amount of misinformation and misunderstanding about copyright issues. What is copyrighted? What's in the public domain? How much use is allowed as "fair use"? When someone oversteps, what is the appropriate remedy?These basic questions touch on the law of copyright as it presently exists, but there's the law and there's the law as "everyone" understands it. The folk wisdom of shared misconceptions about copyright is documented time and again in blogs, articles, studies, and comment boards across the internet. Layer upon the actual and perceived law the concept of "copyright norms" and one can begin to understand where reasonable minds can sometimes differ about the nature and scope of copyright. When confronted with an unreasonable mind... well, let's just say that some people's ideas about copyright are spectacularly copywrong.A case-in-point this week was that of Judith Griggs, editor of the Northeastern regional publication Cooks Source. Several years ago, a self-described medieval cooking enthusiast (and, really, who amongst us isn't?), Monica Gaudio, wrote an online article comparing earlier- and later-period apple tarts and pies recipes. She was somewhat surprised to learn recently that her article had been copied in its entirety (albeit with some editing) and reprinted without her permission in Cooks Source. As the originally-linked image of the article was taken-down, I've posted that image here, should you care to compare it with Gaudio's post. Although Gaudio was credited as the author of the Cooks Source article, she received no compensation for her work from the magazine, which is (for now) a commercial publication.On her blog, Gaudio described how she contacted the magazine and the replies she received from its editor, Griggs:I first phone the magazine then send a quick note to the "Contact Us" information page, asking them what happened and how they got my article. (I thought it could have been some sort of mix-up or that someone posted it to some sort of free article database.) Apparently, it was just copied straight off the Godecookery webpage. As you can see from the page, it is copyrighted and it is also on a Domain name that I own. After the first couple of emails, the editor of Cooks Source asked me what I wanted -- I responded that I wanted an apology on Facebook, a printed apology in the magazine and $130 donation (which turns out to be about $0.10 per word of the original article) to be given to the Columbia School of Journalism. What I got instead was this (I am just quoting a piece of it here:)"Yes Monica, I have been doing this for 3 decades, having been an editor at The Voice, Housitonic Home and Connecticut Woman Magazine. I do know about copyright laws. It was "my bad" indeed, and, as the magazine is put together in long sessions, tired eyes and minds somethings forget to do these things.But honestly Monica, the web is considered "public domain" and you should be happy we just didn't "lift" your whole article and put someone else's name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I [...]

A Round Tuit (46)


When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.While you place your order, I'll share a few posts which are worth your attention.It's October. The Mariners' bleak season has finally ended; the Seahawks' bleak season is yet to develop; my EPL fantasy soccer team is circling the bowl. No matter; the real games have finally begun.The first Monday in October starts the Supreme Court's term and this term... will continue until the first Monday in October next year. That seems to be as much as the prognosticators can agree on, at least in the mainstream commentary I've seen over the past few days.Fortunately, the legal blogosphere is generally a few cuts above the mainstream and it hasn't disappointed me this week — unlike the aforementioned Mariners, Seahawks, and EPL fantasy teams, but I digress.Ashby Jones noted that his readership didn't need a reminder about the significance of the first Monday in October; he offered a round-up of some of the better mainstream press coverage of the new term, including articles on key cases and on the logistics of handling former Solicitor General Elena Kagan's elevation to Associate Justice. Bob Ambrogi and Craig Williams' long-running Lawyer2Lawyer podcast also took a look at the term ahead, focusing on a few of the more noteworthy cases the Court anticipates deciding during this coming year.If there is a must-read source for information about the new term, it's certainly the much-redesigned SCOTUSblog site. Ahead of the opening day's arguments, James Bickford collected some excellent coverage and commentary, including a link to Nina Totenberg's interview with former Justice John Paul Stevens, who doesn't seem to regret his decision to trade his Supreme Court seat for a Barcalounger. The former Justice did admit one regret, however — his vote to uphold capital punishment in Gregg v. Georgia. As Mike Dorf explained, though, Stevens' regret is a nuanced one and might be somewhat misplaced:In the interview with Totenberg, Stevens says that he expected that the sorts of factors upheld in Gregg would mean that only the worst of the worst would be executed, so that a death sentence would not be the sort of random lightning strike that Furman condemned. But, Stevens goes on to tell Totenberg, in the ensuing years the Court expanded the number of people eligible for the death penalty and otherwise changed the procedural law so that the assumptions underlying Gregg no longer held.....It's not entirely clear that Stevens has this right. The pro-death-penalty wing of the Court has argued that the lightning-strike character of the death penalty is due to the self-contradictory nature of the Court's death-penalty jurisprudence: Furman and its progeny require that the sentencer's discretion be constrained by aggravating factors, but Lockett v. Ohio, Eddings v. Oklahoma, and their progeny require that the sentencer have discretion not to impose the death penalty based on non-enumerated mitigating factors. Stevens was in the majority in both Lockett and Eddings, and if those decisions are the source of the failure of the Gregg assumptions, then he shouldn't be blaming the rest of the Court. But it's also not clear that the tension between Furman and Lockett/Eddings is responsible for most of the mess....Gideon had hoped that the Stevens-less Court might agree to hear Georgia death row inmate Jamie Ryan Weis' appeal, but the Court declined[...]

Rosh Hashanah if you must, but I for one will enjoy a Leisurely Hashanah.


At his Likelihood of Confusion blog, just ahead of the upcoming Rosh Hashanah, Ron Coleman hosts Blawg Review #280. He writes:
...Rosh Hashanah is the Day of Judgment for all of humanity—even lawyers. Even judges. Even blawgers!


“Happy New Year” is not the primary Rosh Hashanah sentiment; rather, we express the wish that we, and those we love, and the very world we live in, see the way clear to merit existence and blessing for another year. For ourselves we ask for clarity as to what was wrong with our previous submissions, the strength to prepare amendment and the time to get the revised prayers, if you will, filed before the record is closed—secure, however, in the knowledge that such rectification, if pled both artfully and with appropriate candor, can be effective in the manner we litigators call nunc pro tunc—and then some.

Heavy, yes, but isn’t every capital trial?
I look forward to Coleman's Blawg Reviews more than most and perhaps more than anyone else's. He's a thoughtful writer, adept at gathering the best legal blogging and presenting it in an entertaining and informative way. His Blawg Review #191, concerning the history and meaning of Chanukah, remains one of my all-time favorites, as does last year's "not that kind of Chanukah Blawg Review" post. This year's post may be themed around another Jewish tradition, but it will be no less memorable.

Highlights include a questionable trademark decision rendered in service of a college football money grab, a biblical parallel to a modern-day littering case, and another case which may answer whether bigamy can withstand constitutional scrutiny. Keith Lee will host next week's Blawg Review #281 at his An Associate's Mind blog.

Now you see them... now you don't....


Sadly, today's International Day of the Disappeared doesn't involve the sorts of disappearances one might see in a magic show. Unlike other days which focus attention on the plights of those who live under brutal regimes or on the fates of those killed by such regimes, this day commemorates those who... just aren't. In introductory comments to her Blawg Review #279, Mirriam Seddiq discussed her own family's experience:
As a child, I knew about the disappearances of loved ones in Afghanistan who were taken and tortured by the Soviets, or sent for re-education in the U.S.S.R. I watched the movie the Winds of War about World War II. There was a scene where the Nazi's took old men, women, mothers and children and put them in a ditch and then shot them. I sat stunned. I cried. I asked my mother "did they really do that?" She said "they are doing that in Afghanistan right now." We think my great uncle was dropped out of an airplane alive by the Soviets. We do not know. He disappeared.
This week's Blawg Review discusses disappearances of people, of reason, and of civility. Highlights include trials of juveniles in military courts abroad, imprisonment of juveniles here at home, and consideration of the core functions of criminal defense.

After last week's International Day for the Rememberance of the Slave Trade and its Abolition and this week's International Day of the Disappeared, I for one am a little apprehensive about what next week's Blawg Review #280 might hold. Ron Coleman will do the honors at his always-wonderful Likelihood of Confusion blog.

A Round Tuit (41)


When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.While you place your order, I'll share a few posts which are worth your attention.In 2008, when California voters approved Proposition 8, designated the "California Marriage Protection Act", opponents of the measure immediately challenged the amendment to the state constitution in both state and Federal courts. In last year's majority decision in Strauss v. Horton, the California Supreme Court found that Proposition 8 was valid under the state constitution and created "a limited exception to the state equal protection clause".In the consolidated Federal case, Perry v. Schwarzenegger, decided by Chief Judge Vaughn Walker of the District of Northern California this past Wednesday, Proposition 8 was determined to be unconstitutional under both the Due Process and Equal Protection clauses of the United States Constitution. The best (and most frequently updated) coverage of the decision itself and early reactions to it was provided by David Lat and his merry band at Above the Law. An ongoing reader poll at the site showed reaction to the decision to be overwhelmingly (nearly eighty percent) in favor of the result (which the blog has since posted as a wonderfully hyperlink-enriched .pdf).Lat's co-blogger, Elie Mystal, was one of those who cheered the decision, tweeting that he was "so excited about the Prop 8 decision I had to remind myself that I'm not gay." He nonethless wondered whether same-sex couples fully-appreciate what they're in for and what chaos their Perry victory could cause in their relationships:So gay people in California may soon be able to engage in the lovely “sh** or get off the pot” conversation that dominates the life of every guy who has been dating the same girl for more than a couple of years. Yay, congratulations!But are gays and lesbians really sure they want marriage equality? After the cake, the reception, and the honeymoon, there are a bunch of… obligations that attach to marriage. Just look at New York. We don’t even have gay marriage here, and yet same-sex partners will find themselves on the hook for all sorts of things…....Oh, I kid, gays and lesbians. Marriage is really wonderful. Really. You all are going to love it. What other institution allows you to have less sex, more responsibilities, and the opportunity to lose half your stuff if you make an honest mistake?Perry is, of course, far from over; Ashby Jones mapped-out the next steps the parties will take. For the many who have speculated that the victorious plaintiffs would have an easy time on appeal at the liberal Ninth Circuit, Jones sounded a note of caution — "the initial appeal will likely be heard first by a three-judge panel. And as several legal experts told us, there’s a decent chance conservatives could outweigh liberals on that panel, which are chosen randomly." Concerning the Due Process and Equal Protection issues which will be tested in the appeal, Jones wrote:Judge Walker ruled that the “fundamental right” in the case was the right to marry — and that it had been denied the plaintiffs. It’s important to note that Walker didn’t say the right was to marry someone of a specific sex, which might not be defined as a “fundamental right,” rather the right to marry generally.....[USC Law Professor David] Cruz said that the[...]

TGIS: Thank God It's Schadenfreude! (281)


This week's joy in the misfortune of others comes courtesy of (from Monday, August 2; link good at time of posting):
Raoul Moat's former cell-mate Nathan Flynn has tattooed a tribute to his dead friend on his arm with the name spelled incorrectly.

Instead of the correct version, Mr Flynn had "Raul Moat" put on his arm. When it was pointed out to him, he had a small "O" inserted.

However, the Sun newspaper interviewed him and pointed out that he had also got Moat's birthdate wrong. So Mr Flynn is to take another trip to the tattoo parlour.
[Previous TGIS]

A Round Tuit (37)


When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.While you place your order, I'll share a few posts which are worth your attention.This past week, we Americans commemorated our Independence Day. Our Declaration of Independence remains a remarkable document. Its prose is, in places, pure poetry; the underlying concepts have never been better stated elsewhere, before or since. As Americans, we have much to be proud of and thankful for, as Scott Greenfield noted:There are so many things that we could do better here, and so many stumbling blocks that prevent us from accomplishing the goals of the Declaration of Independence. Yet, Americans live a very good life. Often misdirected, with far too much emphasis on the material and personal status. A cynical view is that we're herded that way so that we don't spend too much time thinking about the more important things, the things that this nation isn't as good at providing. When the economy tanks and we lack the wherewithal to buy shiny things, our minds wander to more existential matters like freedom. But then the economy improves and we go right back to worrying about the new car we desparately need to show our neighbors that we're as good as they are. Maybe better. This is the good life we lead.....Despite the ongoing economic problems, the still-spewing oil in the Gulf of Mexico, the fighting without end in Afghanistan and Iraq, and a nation perpetually confused by the meaning of the Declaration of Independence, we still live a better life her than many other people do elsewhere. That's an accomplishment worth appreciating.On the Fourth, Bobby Frederick reread the Declaration of Independence and the Constitution and wondered whether we'll ever live up to their ideals:Today, most of our citizens have no idea what those documents say or mean, nor do they care. Freedom sounds good - but it should not get in the way of law and order, establishing and maintaining Christianity as the dominant religion of our country, or suppressing undesirable viewpoints. We quickly became an oppressive, imperialist nation which exerts its influence across the globe by attempting to conquer and control as many foreign lands as possible and then exploit them for as long as possible. We have become much better at this than England ever was.In a few minutes, I'm going to watch a fireworks display with my three year old son, and we'll have a good time. He'll enjoy the pretty lights and the loud noises. I'll stand in awe as I think of how we are celebrating the birth of a nation, and I'll imagine I am seeing the red glare of rockets and hearing the bombs as they burst in the air above us. I love this country, and what it is supposed to stand for. But I wonder if or when we, the human race, will evolve from our violent nature - will we ever stop trying to control one another, killing one another, exploiting one another.Mark Bennett reminded us that the Declaration of Independence was not a academic exercise:The founders were not always patriots. They began as traitors, risking everything to sever their ties with the government that was supposed to keep them safe but that broke that promise and stole their freedom.America didn't become independent in the first week of July of 1776. The founders didn't, with a stroke[...]

Until the vuvuzela came along, I'd always regretted losing my hearing.


Andrew Raff hosts this week's Blawg Review #269 at his IPTAblog site. The occasion is World Music Day and no discussion of world music during the World Cup would be complete without some mention of the ubiquitous vuvuzela horns heard during matches (not to mention the nightmares of soccer fans everywhere). Raff discusses the trademark status of "vuvuzela" in the course of rounding-up the best legal blogging of the past week. Highlights include discussions of Jazz' death-by-copyright, the impact of the Limewire decision, and the ease of online stalking. Dave Gulbransen will host next week's edition of Blawg Review at his Preaching to the Perverted blog.

A Round Tuit (33)


When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.While you place your order, I'll share a few posts which are worth your attention.In the Monty Python episode "Blood, Devastation, Death, War, and Horror", a television presenter portrayed by Michael Palin uses an elaborate gesture to indicate to his audience that the natural pauses and breaks in his monologue are just temporary, that his speech will continue once he catches his breath, and that they shouldn't wander off. In another episode, Graham Chapman's "Biggles" is obliged to don and doff a set of antlers to indicate to his dimwitted courtesan... er, secretary whether he's dictating a letter or simply speaking to her. Frankly, if either of these approaches had been recommended by the Berghuis v. Tompkins Supreme Court to clarify in-custody discussions between police and suspects, it would've been nearly as sensible as what they did choose.In Berghuis, Thompkins had been taken into custody by local police. He was read his Miranda rights and asked to sign a waiver of those rights. Very sensibly, he did not sign the waiver; somewhat less sensibly, he also did not request an attorney and expressly state that he would not answer police questions without an attorney present. Over the course of three hours, Thompkins sat quietly while interrogators peppered him with questions. As Steven Shapiro noted in a Wall Street Journal opinion piece:Until the very end, Thompkins made only two comments of note: He declined a peppermint candy that the police offered and he complained that his chair was uncomfortable.Thompkins said nothing else of substance in response to a barrage of police questions. He did not answer the easy questions and ignore the hard ones. He did not answer questions at the beginning of the interrogation and then stop talking later. The police themselves characterized the interrogation as "nearly a monologue."Still, the police persisted. After nearly three hours, Thompkins was asked whether he believed in God and whether he had asked God to forgive him for his crime. A police officer later testified that Thompkins said "yes" to both questions, and Thompkins was convicted of murder.If that sort of questioning causes you to flash-back to first-year Criminal Law lectures and the Brewer "Christian Burial" case, you're not alone. Scott Greenfield called the Berghuis questioning "A Christian Burial, Redux" and noted that this dimunition of Miranda hinged on one justice's decision:We've been down this road before. Every law students studies the 1977 decision of Brewer v. Williams, where the defendant invoked his 6th Amendment right to counsel. Yet police continued to try to get Williams to talk, manipulating him with an appeal to his deep religious beliefs, that the parents of the young girl he murdered should be able to have a Christian burial. Williams led police to the body.Much is packed into the Supreme Court's Berghuis v. Thompkins decision, Much surrounds it. It's a 5-4 decision, thus leaving the rights protected by our Constitution in the hands of a single individual, Justice Anthony Kennedy, whose individual views more than any other dictate the fundamental law of the United States of America.....The way it's told, the de[...]

Now that my "Scott Greenfield Day" fasting is finished, I can feast on Blawg Review.


Mark Bennett has a great round-up of yesterday's blawgospheric celebration of "Scott Greenfield Day". I commemorated this year's inaugural Scott Greenfield Day in a most appropriate way, I think... by working long but productive hours at my full-time job. Cynics might suggest that I was simply digging-through the accumulated workload piled-up during last week's time away and that, nose-to-grindstone, I simply missed-out on the Scott Greenfield Day festivities; to them I say, "You humbugs must learn to keep the spirit of Greenfield in your hearts all the year long!" Or not.

Venkat Balasubramai's publication yesterday of Blawg Review #267 at his Spam Notes blog is just icing on the Scott Greenfield Day cake. Highlights of this link-rich edition of the carnival of legal blogging include privacy and discretion on Facebook, sexual harassment on Craiglist and in the real world, and internet-induced stupidity. There's a lot in this week's Blawg Review; start reading it now if you've not already, lest you still be at it next Scott Greenfield Day.

David Harlow will host next week's Blawg Review at his HealthBlawg site.

TGIS: Thank God It's Schadenfreude! (272)


This week's joy in the misfortune of others comes courtesy of Reuters (from Wednesday, May 26; link good at time of posting):
Greek telecom engineers cut off the telephone line to the prime minister's house while attempting to disconnect a customer who was behind in payments, the telephone company said on Wednesday.

The Athens phone number of the customer in arrears was the same as that of Prime Minister George Papandreou's home number save for one digit, telecoms company OTE said in a statement.


OTE is 20 percent owned by the state. OTE's chairman wrote a letter to Papandreou to explain the mistake and engineers went to the prime minister's house immediately after they were informed of the problem.
[Previous TGIS]

A Round Tuit (32)


When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.While you place your order, I'll share a few posts which are worth your attention.I've written a few times before about American Needle v. National Football League, wherein manufacturer American Needle alleged that the NFL's exclusive apparel licensing deal with Reebok violated antitrust rules. The antitrust allegations made by American Needle and the NFL's counter-arguments raise interesting, if not monumentally important, legal issues and deserve some consideration. Mostly though, these Round Tuit posts reflect my own whims and I enjoy it when legal issues arise in sports and don't involve an overpaid crybaby getting into trouble in a nightclub. About the modern NFL, analysts often talk about the parity amongst teams in the league. Constructs like the salary cap and draft structure have been carefully designed by the league to ensure that fan interest across the country is not damaged by the dominance of a few large-market teams over their smaller-market brethren. They've been largely successful at this, as the NFL's staggering television and merchandising revenues attest. In terms of play, the game has never been stronger; while there are a few perennial losers, the talent is distributed across the league such that on any given Sunday (or Monday or Thursday or Saturday or whenever someone will pay to broadcast a game), even an underdog can prevail. Unless it's Seattle.Against the NFL, American Needle was an underdog. As Ashby Jones reported, however, they not only won but won big:American Needle clobbered the league, in a unanimous 9-0 decision penned by Justice John Paul Stevens. We had no dissents and no concurrences. This was an unadulterated blowout. This was the 1940 NFL Championship game; the 1986 Super Bowl.....American Needle, which had individual licensing deals with NFL teams, sued, arguing the NFL’s exclusive deal with Reebok violated antitrust rules. The NFL argued that it is a single entity with 32 teams that compete with each other in football but not in business, where the teams collectively compete with other sports and forms of entertainment. American Needle countered by arguing that the league was actually a collection of 32 independent entities — i.e., all the teams.....The Supreme Court on Monday essentially ruled that the NFL is composed of 32 separate business entities.....Therefore, the Court ruled that Section 1 of the Sherman Antitrust Act applies to the NFL, and ruled that any unilateral decision made by the NFL that affect all the teams shall be viewed under the so-called “Rule of Reason” for antitrust purposes. Under the “Rule of Reason,” a lower court has to examine all of the circumstances to determine whether and to what degree the action is anticompetitive.Lyle Denniston also noted the decision and that the adverse result for the NFL contrasts with the favored treatment allowed to Major League Baseball:Rejecting the National Football League’s claim that it has across-the-board immunity to antitrust law when its teams join in a commercial activity, the Supreme Court unanimously cleared the way Monday for trial [...]