Archive for 2002

DESERTPUNDIT informs me that the Arizona Bar is investigating Glendale lawyer Stan Massad, who wrote the threatening letter to the teacher who flunked a still-unnamed high school student.

Let this be a lesson to you, folks. I’m sure his insurance carrier already knows about this, and is reevaluating his premiums even as I write.

UPDATE: Edward Boyd has more on this, including the email address for the Arizona Bar’s disciplinary office.

DAN GILLMOR is very unhappy with the detention of Al Muhajir, since he’s a U.S. citizen. I agree that that’s an important distinction.

If the U.S. government locks up noncitizens, it may be a human-rights violation (or it may not) but it’s not politically corrupting. When the government locks up citizens without following Constitutional niceties, it may tempt it to abuse that power, and it may intimidate critics by the threats of such abuse, both concerns that don’t exist when noncitizens are involved.

I think that’s a good reason for maintaining a firewall between treatment of citizens and noncitizens. One offers a risk (so far, based on Guantanamo, not realized) of human rights violations. The other offers a risk of tyranny, in which the government, which should be the servant of the people, begins to act as master. We’re not close to that yet, but we’re closer than we were.

UPDATE: Eugene Volokh identifies a World War Two case holding that citizens who join enemy belligerents can be imprisoned without trial for the duration of the war:

On the points made about the detention of the dirty bomber, I think this case is instructive: In re Territo, 156 F 2d 142 (9th Cir 1946), [which holds] that a citizen who is an enemy belligerent [there, a prisoner of war] can be held without trial for the duration of the war. The only question is whether the Executive’s determination of belligerent status is subject to habeas [corpus] review. I believe that it is, and should be, and I predict that the dirty bomber will seek habeas, and that the Executive will present its evidence, and that the federal courts will determine that he is in fact an enemy belligerent subject to detention without trial.

JUST ADDED A NEW COUNTER: The Extreme Tracker only counts visitors to this front page; it doesn’t see anyone who follows a link to an individual post. (It also apparently can’t see anyone who has Java disabled). It’s open, too. Since the Sitemeter just went up, it won’t be accurate for today’s totals, but it should make an interesting comparison starting tomorrow.

I don’t know if I’ll keep these up forever (a couple of people have complained that it’s an invasion of privacy since it shows some information on the last few visitors) but in the interest of transparency I’m doing it for a while at least.

LIVIN’ THE BLOGGING LIFE: John Hiler notices that he’s not just getting book and music recommendations from bloggers — now he’s reading unpublished books and listening to unsigned bands that he found out about through bloggers. And he likes it! Yeah, I think that’s a growing trend.

In fact, I think that the growth of these forms of micro-publishing is what really has the MPAA and RIAA scared. They’re not so much worried about piracy as competition. And they should be.

UDPATE: Dave Winer agrees.

BRUCE HILL SAYS THAT IN THIS WAR, we don’t need to hate the enemy. He’s onto something. When I see these guys’ faces I don’t feel hatred. Frankly, they tend to look like pathetic goofballs.

Yeah, they’re evil and bad, and they’re dangerous and have to be stopped. But I can’t really summon up a lot of hatred. And that probably would bother them even more.

UPDATE: Will Allen writes:

If this war is prosecuted with efficient ruthlessness now, hating the enemy will not be required. If this is not done, however, and the enemy has success in pursuing his logic, then this society may well decide to pursue a logic that WILL require hating the enemy, which will have terrible effects for this society. Much as slavery is toxic to the enslaver, massive slaughter is toxic to the slaughterer. All the more reason to prosecute this war with tremendous urgency now, so as to avoid what may be required later. There are times in which this conflict seems to have entered a “phony war” stage, in which goals seem to be muddled or put off. Hopefully, this is not the case; that our war leaders are quietly taking care of business while setting the stage for what must happen, which is a wholesale change in much of the Islamic world. One of “Rumsfeld’s rules” is that when one is faced with an intractable problem, the most effective response is to enlarge it. This problem needs to be enlarged beyond Al Queda and Iraq to include Iran (where a substantial population wishes to rid themselves of the mullahs), Syria, and most of all, our “friends” on the Arabian peninsula, who use their oil money to fund entities from Nigeria, to Pakistan, to the Phillippines, and beyond, which kill Americans with great glee. Put bluntly, the House of Saud is an enemy of the United States. It is time that we approach them as one, lest far more horrible methods become necessary later.

Indeed. I agree that not taking the situation seriously now is likely to lead to a situation where far more will be required, to everyone’s detriment.

MUSIC DOWNLOADS: Yesterday I posted a link from Slashdot saying that Sony and Universal were planning to sell reasonably-priced music downloads without “crippleware.” But LawMeme doubts that this is true.

BY NOW a lot of people have heard the story of the high school senior whose parents threatened to sue the teacher who — apparently quite properly — flunked her. Now this editorial raises the question that has occurred to me: Why don’t we know the names of those parents?

The girl’s parents, who have done nothing to deserve the anonymity this and other reports afford them, have performed perhaps even a worse service than the district. Perhaps even worse than the lawyer.

They’ve made clear to their daughter that failure is never her responsibility. And that is a terrible message for any parent to send.

Yeah, they don’t deserve anonymity. Maybe the girl’s a minor — but is there a general rule of never reporting a minor’s name? I don’t think so. And why not report the parents’ names? They’re not minors. Yeah, sure, that would get the daughter’s name in public. But given that they threatened a lawsuit, well, that goes with the territory. I don’t see why they should be cut a break here. In fact, the letter sent by lawyer Stan Massad seems to border on extortion, something that the Arizona Bar should perhaps look into (and if I received such a letter I would lodge a disciplinary complaint): “Of course, all information regarding your background, your employment records, all of your class records, past and present, dealings with this and other students become relevant, should litigation be necessary.” Whether or not this constitutes a crime or a violation of legal ethics isn’t for me to say — but anyone willing to threaten to make private facts public in order to get an action they desire from a public employee surely has no standing in demanding that his/her own privacy be respected.

The press’s bizarre incidents of over- and under-sensitivity baffle me.

UPDATE: Reader David Bernstein writes:

Often, the difference between illegal extortion and legal “encouraging settlement” is whether the deman has an attorney’s signature. Remember the case of the women who claimed that Bill Cosby had fathered her daughter? If she had cut an attorney in for 1/3 of her claim, she would have been immune from extortion charges, so long as the attorney had a good faith belief that she *might* be telling the truth. Or am I wrong?

Well, it depends. Yes, it’s true that filing a lawsuit inevitably means that otherwise private information will become public, and that threatening to file a lawsuit isn’t, itself, extortion. The question is, if a lawsuit is sufficiently frivolous (as this appears to be based on the press accounts I’ve seen and heard), should that rule hold? This ties in with a bigger problem: that of attorneys using threats of frivolous litigation to extort (in the generic, not the specific legal sense) things from people to which they’re not entitled. (Look at some of the threatening letters sent by technology companies in IP cases, for example, some of which are worse than Massad’s letter).

I’ve talked with a colleague who specializes in this area, and he believes that a lot of lawyers are doing things that should — and ultimately will — subject them to discipline, civil litigation, and perhaps even criminal charges, based on an unjustified belief that anything you do relating to litigation is, somehow, not subject to such sanctions. I believe that this is a subject that deserves far more attention.

Actions like Mr. Massad’s certainly serve to bring the profession into disrepute, and to undermine people’s faith in the legal system. Unfortunately, people often cave in to them.

UPDATE: Max Power has more on this. But I wasn’t talking so much about filing frivolous lawsuits, as threatening to file a frivolous lawsuit. The former may be constitutionally protected (though in some cases I think bad faith should trump that) but it’s also subject to sanction via Rule 11, etc., at least in theory. The threats — which sometimes include objectively false statements of the law addressed to nonlawyers; there was a doozy linked via Slashdot a few months ago that I can’t seem to find now — seem to me to fall outside the First Amendment, and well within the bounds of attorney discipline. The teacher’s letter in response, by the way, makes the point that discovery cuts both ways. It also says that the student (whose name the paper removed) is an adult — so I’ll repeat:

Why are the papers keeping the studen’ts name secret?

SURE TO UPSET SOME, this high-school yearbook has a special section on its students who are mothers or pregnant.

UPDATE: Ross over at The Bloviator emails to say that he had this link up on Monday. Er, okay. I’m amused by his Chess Club analogy. If teenage pregnancy becomes as popular with highschoolers as the chess club, well, that’ll be the end of it.

NO TANK YOU: Howard Bashman has an amusing report of a tank-repossession case. Bashman’s summary might leave the impression that it is illegal for individuals to own tanks, though. Actually (as numerous emailers informed me last fall when I posted something tank-related) there are quite a few people who collect tanks, and a couple of wealthy individuals who have more working tanks than some third-world nations.

Is this a great country, or what?

DEN BESTE responds to Eric S. Raymond and wins a convert. I want a T-shirt too.

ACCORDING TO THIS ARTICLE IN THE AMERICAN PROSPECT, America needs more rich unwed mothers!

UPDATE: Okay, that was a bit of a tease. But then again, read this:

High-achieving women are far less likely than women in the general population to have children out of wedlock. Only 7 percent of never-married high-achieving women between 28 and 35 had had children, according to the CPS. In contrast, fully 32 percent of other never-married working women had done so. One hardly need look farther afield to explain why only 60 percent of high-achieving women had children at ages 36 to 40, whereas among working women generally the figure is 66 percent. High-achieving women are simply much more reluctant to take on single motherhood.

The so-called baby bust thus has far less to do with female accomplishment or age-related infertility than it does with the persistence of traditional values among economic elites. For high-achieving women, it might as well still be the Eisenhower era, which was the last time the nation as a whole had such a low rate of unmarried births. Because of high-achieving women’s greater behavioral conservatism, it is marriage — not degree of professional success — that is the single largest determinant of whether they will have children.

See where the high-income baby-bust comes from? Sure, TAPPED coyly suggests later on that rich women should just consider marrying younger men — but the data speak for themselves, and they’re up front. And that would get us out of that dreadful Eisenhower era!

Er, or you could conclude that the avoidance of unwed motherhood has a causal relationship to “elite” economic status, I suppose.

MICKEY KAUS has picked up on my reference to Dave Winer’s post on what newspapers should do about weblogs, and is giving it the Mickey Seal of Approval.

That’s very generous of him considering our newfound rivalry: Moira Redmond of Slate emailed today that she wore an InstaPundit t-shirt to a Slate editorial meeting, and that Mickey immediately tried to outbid me for her affections with the offer of a “Kausfiles” coffee mug.

Of course, my initial reaction was: “Kaus goes to editorial meetings?”

SLASHDOT has an interesting thread on the latest music-download happenings. Record companies are reportedly going to allow singles to be downloaded for $0.99 and full CDs for $9.99, without annoying “crippleware,” etc.

Well, they should: a CD at that price probably costs them about $0.01 to “manufacture.” There’s also some interesting debunking of their “global piracy” claims, and some technical observations (natch).

I GOT A LOT OF EMAILS ON DDT. So did the mysterious “Juan non-Volokh” at The Volokh Conspiracy, so I’m incorporating his posts by reference. Start at this one and scroll up.

READER JOHN KLUGE WRITES in response to this post:

Its very funny that your liberal colleagues are scratching their heads over the Supreme Court’s evisceration of the 6th Amendment right to confront witnesses. Strict constructionists have argued for years that broad readings of the Constitution create a slippery slope for civil liberties. No one has listened. Instead, liberals have created this straw man that anyone on the Right who disagrees with them is automatically against civil liberties.

Yes, unrestrained governmental bodies are fine as long as they’re doing what you like. But, really, how long are they likely to keep that up?

SOME GOOD ADVICE from Jim Dunnigan. I took a similar lesson from Max Boot’s book, The Savage Wars of Peace, which is excellent.

35 TRILLION CHILDREN GUNNED DOWN! Er, either that, or someone who’s a mathematical illiterate, reports Minute Particulars. I think I’ve seen this story before, but it bears repeating.

MUSIC INDUSTRY SALES ARE DOWN? People must be stealing the product.

I mean, it couldn’t be because it sucks.

“HE’S STILL IN FEDERAL CUSTODY” — Reader Natalie Cohen sends this slightly surreal story on John Gotti’s post-demise activities.

CHARLES OLIVER OBSERVES:

I also find it interesting that the articles refer to al Muhajir as Jose Padilla. Most of the press seems to prefer to call him by his birth name, rather than the name he has chosen just as they refuse to call John Lindh by the Muslim name he has adopted. Funny, no one calls Muhammad Ali Cassius Clay or Kareem Abdul-Jabbar Lew Alcindor. Are we supposed to believe that only good guys truly convert to Islam?

UPDATE: One Hand Clapping wonders the same thing.

JOHN CARTER, ROLE MODEL: Orrin Judd emails with this interesting essay on the political and moral dimensions of Edgar Rice Burroughs.