Category Archives: law

The New York Times versus Free Speech

A judge in Oregon recently ruled that a blogger isn’t a journalist. John C. Dvorak, professional curmudgeon and one of the longest-tenured tech writers isn’t impressed with the decision:

The case of Crystal Cox, a self-professed "investigative blogger" from Oregon, should outrage the public. The woman was investigating targeted companies that she believed to be acting unethically and found herself at the wrong end of a lawsuit.

The evidence she had unearthed concerning a Pacific Northwest finance group she was after and the sources she used seemed, in the end, immaterial to the outcome of the lawsuit against her. I won’t get into the details of Cox’s case since my concern is the definition of journalist, but you can read more here." The judge, recent Obama appointee Marco Hernandez, asserted that as a blogger with no other credentials, she was not a journalist and was entitled to no protection.

He said, “Although the defendant is a self-proclaimed ‘investigative blogger’ and defines herself as ‘media,’ the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law in the first instance.”

Apparently, there are now new qualifications for journalists. So who decides these qualifications? Hernandez? Where did he get this from? I’ve never seen a laundry list in the U.S. that precludes bloggers. There is nothing in the Bill of Rights, to wit: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Predictably, the New York Times like the decision:

The ruling on whether she was a journalist in the eyes of the law turned out to be a MacGuffin, a detail that was very much beside the point. She didn’t so much report stories as use blogging, invective and search engine optimization to create an alternative reality. Journalists who initially came to her defense started to back away when they realized they weren’t really in the same business.

This is the problem. A MacGuffin shouldn’t matter. If Cox were lying, then there could be a case for defamation and it wouldn’t require the judge to make up the criteria for what is or isn’t a journalist. But it appears that the judge looked at what appears to be bad facts and came up with bad law.    

On Writing Well: Bar Exam Edition

One battle I have when editing people’s writing is whittling down overly complex sentences. Lucky I don’t frequently have to deal with paragraphs this ugly

The common denominator among the bar-failers in my class at Yale Law School—and there were a few—was a complete inability to comply with senseless rules; they weren’t the best students, but they were the tartest and the sharpest people—and the least likely to accept the constraints of Big Law that make neither financial nor intellectual sense: the fifty-state survey to prove a negative, the memo to nowhere, the repetitive brief that says nothing and gets read by no one. The inefficiency of law and litigation in practice begin with the complete waste of effort that is its licensing ritual.

Really? Three dashes, a semi-colon, and a colon, and 3 commas in one sentence. That is ridiculous. It might be 100% proper, but who wants to read it?

Here’s Ann Althouse with some wisdom on writing like this.

Thurgood Marshall’s interesting theory of Constitutional Interpretation

Micheal Steele, who I can’t believe I’m defending because I not a fan, is being criticized for Colbert King of the Post for an “incredibly idiotic criticism” of Elena Kagan. Kagan, cited Thurgood Marshall’s statement that “ the Constitution, as originally drafted and conceived, was “defective”; only over the course of 200 years had the nation “attain[ed] the system of constitutional government, and its respect for… individual freedoms and human rights, we hold as fundamental today.” Steele then criticized Kagan for saying that the Constitution as draft was “defective.” King thinks Steele is “idiotic” for suggesting that the Constitution wasn’t defective as written and the whips out the KKK card and wonder why Steele doesn’t join the KKK.

No one would think that Colbert King is a deep thinker. But we ought to consider Thurgood Marshall’s argument because Marshall’s argument is flawed:

I do not believe the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite “The Constitution,” they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.

For a sense of the evolving nature of the Constitution we need look no further than the first three words of the document’s preamble: “We the People.” When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America’s citizens. “We the People” included, in the words of the Framers, “the whole Number of free Persons.” On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at three-fifths each. Women did not gain the right to vote for over 130 years. These omissions were intentional.

Yes, those omissions were intentional. The world was a far different place 300 years ago. There was incredible amounts of inequality, and yet at the same time, Americans as a whole were some of the most free people on Earth.

But injustices in 1787 does not mean the Constitution was somehow defective. The Framers themselves foresaw the necessity to amend the Constitution. The Constitution was set up to set flexible and to change with the times. The correct way to change the Constitution is contained in Article V of the Constitution itself. Somehow Marshall omits the possibility that the Constitution itself contemplates that it might and should be amended.

The Framers didn’t think the Constitution would be set in stone—they saw the need for it to be amended and changed. Why Marshall omitted that material fact is not clear. I believe he didn’t want to be constrained by the actual language of the Constitution and so he argued that Framers had no great insight. That way, it was easier to twist the text of the Constitution to mean what you want it to mean instead of relying on the amendment process laid out in Article V.

What do you mean this table saw doesn’t have “flesh detection technology”?


A Boston jury recently awarded a man named Carlos Osorio $1.5 million because he screwed up while using a table saw like this. He argued that the saw should use “flesh detection technology” to prevent serious injuries.

The problem is that Mr. Osorio’s injury was completely preventable by Mr. Osorio. Instead of relying on “flesh detection technology,” which the saw was not equipped with, he should have followed the example of most people and not let his bingers get close blade to necessitate the technology. After all, spinning saw blades are pretty scary.   

The # 1 rule of using a saw is “be careful” and the #2 rule is “don’t saw your fingers off.” There is no negligence here on the part of Ryobi, the makers of the saw in question. The negligence was squarely on the shoulders of Carlos Osorio. He knew that the spinning blade would cut his fingers off if he messed and and he went ahead and negligently used the saw.

If Osorio thinks that saws should be made with “flesh detection technology”, great! It’s a great business opportunity for Mr. Osorio. He should start a company making safety-table saws and put people like Ryobi and their finger manglers out of business. It’s that simple.  

I hope this decision is reversed on appeal and I wish Mr. Osorio well in creating his high-tech finger-protecting table saws.

“Are you guys really here to get me into trouble.”

The L.A. Times has an interesting story of a the Fish and Wildlife Service busting a guy for trying to sell an elephant skull

Did it matter that this elephant was legally in the United States and died of natural causes? Of course not. The Fish and Wildlife Service isn’t concerned about right and wrong. They are concerned about enforcing the law. It doesn’t matter whether or not it actually protects species.

There are good reason for the Fish and Wildlife Service to zealously prosecute the law as written. But no one should ever assume that bureaucrats enforcing the laws actually leads to good outcomes. 

Obama’s Guantanamo mistake

Two days after Inauguration Day, Obama apparently thought it would get his Administration off to a good start by announcing that he was going to close the prison at Guantanamo Bay without one year. I assumed, (incorrectly it turns out) that his Administration had a plan for doing this. I didn’t think this was necessarily a bad move. I don’t agree with Obama on much, but I thought he had some common ground on Gitmo. I’m not sure we do.

A year has gone past and Guantanamo is still open. And for good reason. We need some place to keep people who we arrest on battlefields, but aren’t affiliated with a country. Also, for these enemy combatants, there are good reasons to keep them outside of the United States. I don’t have a problem with Guantanamo being open for these reasons, but that was never my problem with Guantanamo.

My problem with Guantanamo is that people are kept there without a trial. How in the world can we keep people detained for year after year without trial? I’m not arguing they should be given full Constitutional rights, but they deserve a trial. I just wish Obama understood the most important issue at Gitmo and would have made sure people got trials.

Why, oh why was I not smart enough to go to Yale Law?

I didn’t get good enough grades in college and I didn’t score high enough on the LSAT to go to Yale Law. But if I would have I don’t know how I would have turned down an offer from a super-high-powered law firm to defer employment for a year in exchange for $80k. From the WSJ:

When I witnessed the job-search drama as a student at Yale Law School, just about the most desirable placement was a spot at Cravath. It didn’t seem to matter that even summer associates at Cravath were expected to close Time Warner deals way past midnight. Nor did anyone seem to care that a new hire could regularly expect to have his viewing of Saturday Night Live disrupted by an emergency call from the office. Prestige whores will give it up for their choice currency, and Cravath carries that elite cachet.

Or at least it did. The class of associates that just joined Cravath was asked to defer their arrival for a year in exchange for a sweet deal: They would receive $80,000 to not work, plus they would get benefits and student-loan payments. This offer was optional.

Not one Yalie took the offer. I sure would have. I would have loved to do nothing for ski, backpack, and hang out at the beach for a year, all while making $80k. In fact, that’s just about my dream job. Then again, afterwards you would be a slave to Cravath, Swaine, & Moore, but such is life.

The ultimate insult in the Kelo v. New London saga

Susette Kelo and her neighbors’ land was taken in New London, Connecticut as part of a redevelopment plan to allow Pfizer to expand their offices. But Pfizer has now  announced that not only are they not expanding their offices, they are closing up shop in New London. The Hartford Courant reports:

Pfizer Inc. will shut down its massive New London research and development headquarters and transfer most of the 1,400 people working there to Groton, the pharmaceutical giant said Monday.
The move comes in the wake of Pfizer’s recent merger with Wyeth, and is part of a global consolidation of the two companies’ research operations. Groton will be the biggest of the company’s five major global research sites, the company said. The move from New London to Groton will take place over the next two years.

Not only is Susette Kelo and her neighbors’ land vacant today, Pfizer is leaving. Nice work New London.  A couple months ago my wife and I stopped by New London and took some pictures. Here’s what the view from Susette Kelo’s house looks like today:


We Are Devoting Too Many of Our Best Minds to Lawyering

Justice Scalia recently said in a interview that we are wasting too many good minds lawyering:

I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

This is undoubtedly true. I know really smart people whose work produces absolutely no real value for society. For example, what value for society does a tax attorney produce? They do not increase knowledge or produce anything of real value, instead they spend their time navigating the labyrinthine tax code. If we had simpler laws, we wouldn’t need to devote some many smart people to figuring out the laws.

Kelo v. New London: The Aftermath

In 2005, the Supreme Court ruled on the controversial property rights case–Kelo v. New London. In that case, the Supreme Court ruled that cities could exercise eminent domain for purely economic development purposes, even if they took the land from one private property owner and transferred it to another. According to the Court, this was an acceptable “public use” under the Fifth Amendment.

But governments do not necessarily make good decisions about economic development and the Kelo situation is a good example. It’s four years after the Supreme Court’s decision and the land the land that the City of New London took from Susette Kelo and her neighbors for “economic development” is still vacant. None of the 3,169 new jobs and $1.2 million a year in tax revenues have materialized

Earlier in the month, my wife and I were near New London, so we stopped by to see what the land looks like today. Below are picture I took of the site:

View to the south from where Susette Kelo’s house once stood:

View to the west from where Susette Kelo’s house once stood:

Trees on the Susette Kelo’s block:

View to the north on East street:

One block North from Susette Kelo’s, more condemned land: 

View to the north, same location:

Bing maps has a nice aerial perspective of this location, especially when you use the Bird’s Eye feature.

This is a sad case of hubris. People homes were taken and replaced with empty lots?