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Your Law Firm on Trial: Jurors Investigate the Trial Attorneys

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According to the New Jersey Law Journal New Jersey’s Supreme Court is considering a “rewrite of model charge 1.11(C) to include the Internet, cell phone messaging, chat rooms and Blackberries as off-limit sources for information about cases.” Although the charge is intended to address jurors seeking more information about the case at hand, the article reports that jurors are Googling the attorneys trying the case as well. A jury consultant firm asserts “Research has shown that jurors routinely disregard the instruction and want to find out as much as they can about everything related to the case, including the judges, witnesses and lawyers.” Apparently some firms are trying to cater to this phenomenon by being humorous and softening their Web image to affect possible jurors. In one case a firm made jokes about lecturing and an attorney’s love of beer beginning in college. My guess is that juries will bring all sorts of impressions to the trial. And, as one trial attorney (who at one point had won more than 30 trials in a row) told me, jurors watch and evaluate every move the attorneys make during the trial. If so, juries probably make evaluations more based on that interaction rather than the what they read on the Web. Thus it may be better to smile at trial rather than pretend to be some warm and fuzzy lawyer on the Web.

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The Pitfalls of Punishment

Thank you for the opportunity to join Concurring Opinions as a guest blogger for this month.

At the risk of repetition, I would like to continue the conversation begun by Dan and Deven about the recent execution of Saddam Hussein.

Dan has described his discomfort with his reaction to the imposition of the death penalty on Saddam. Indeed, as the New York Times has noted, the death penalty has been a sticking point for potential supporters of the tribunal, both in other countries and in international organizations. The cold shoulder given to the Iraqi court by much of the world has undermined the tribunal’s status as an exemplar of the increasing turn toward legal accountability for mass crimes.

Nevertheless, the furor over the imposition of the death penalty in the Iraqi case masks a greater systemic problem with international criminal law. While the applicable law and procedure of the field have been greatly clarified in the past decade, the appropriate punishment for transgressions of its norms remains an incoherent morass.

Read More

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Sending Up the White Flag?: Music Labels Moving Away From DRM

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Today, CNET reports that the music industry is backing off of DRM in part because download sales are not at the numbers it desired. In a previous post I highlighted what appears to be a misuse of the DMCA. In that post I offered that copyright might be seen as protecting a business model and what may be wrong when that is the case. What’s the connection? I think that if the CNET article is accurate and the music industry is moving away from DRM because of failed sales, that shift supports the idea that DRM is not about copyright but about protecting an unviable business model.

To elaborate, one might say that in general copyright protects an otherwise untenable position. That is, one argument holds that promoting the useful arts requires that the law provide protection for those who generate copyrightable or patentable subject matter. The nature of the thing created means that without intellectual property protection these items would arguably not be created, as once one invested in the creation others could copy easily.

I am suggesting that one could also say that the law is protecting a business model (in intellectual property) that otherwise would not survive. Yet, specifically in copyright that claim of necessity may not be as true as before because of the broad swath that copyright covers. Film and other capital intensive copyright industries may have an argument for copyright laws and strong protection. They may even have arguments that if we want to protect the incentives to produce these creations, we should offer remedies for those who work to get around copy protections (I am not saying these arguments are correct; I am simply saying there may be a logic to them). But in other less capital intensive copyright industries the premise for protection may not be present.

In addition, one could argue the DMCA was forced through Congress by the copyright industry. That may be. Regardless, the question is what does the DMCA or a specific copyright protection do? Does it foster or adhere to the incentive premise or not? And one should ask is the premise in play when we talk about using the DMCA to protect non-copyrightable areas such as a business model? Put differently is the law fostering creation and/or competition or merely being used to protect a market’s status quo?

The music industry offers an example of what asking whether the incentive theory is in play or not might reveal. In other words does music fit the premise regarding incentives to create? As the CNET article notes eMusic has “surpassed 100 million downloads; it’s the second-largest digital music retailer after iTunes, all sans DRM” which might indicate that the claims by the copyright industry for the need for extra protection are unfounded. Cory Doctorow offers that the advent of radio had a similar outcry as live performers gave way to recorded broadcasts:

Performers lobbied to have the Marconi radio banned, to send Marconi back to the drawing board, charged with inventing a radio they could charge admission to. “We’re charismatics, we do something as old and holy as the first story told before the first fire in the first cave. What right have you to insist that we should become mere clerks, working in an obscure back-room, leaving you to commune with our audiences on our behalf?”

Furthermore I suggest that similar to Doctorow’s position on the value of a creator being known and shared rather than locking up access to his works, the creator’s “biggest problem is obscurity, not piracy.”

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Welcome to the Panopticon

panopticonbetter.jpgThe site PlateWire.com permits anyone to post “warning wires” about bad drivers they come across. According to its founders:

Using a drivers license plate, commuters can communicate their thoughts and feelings in regards to driving on today’s roadways. Report and flag bad drivers, award good drivers, and even flirt with cute drivers. . . . We believe that rage and courtesy go hand in hand. If you as a driver are treated rudely by someone, you are more likely to take that frustration out on someone else. . . .

Lior Strahilevitz has written an interesting article on the rise of such P2P surveillance. My initial sense is that such sites may indeed prove efficient in the long-run, providing valuable sources of information about hard-to-punish behavior that may be used as evidence when a bad driver’s luck finally runs out and they end up in an accident.

But I’m pretty worried about the potential for abuse and vigilantism here. If someone has some sort of due process to prove an accusation unfounded, great. But if employers can track license plates to individuals, would a person who is not hired on the basis of PlateWire accusations ever get a chance to tell his or her side of the story?

Concerns like this have driven Finland to keep employers from Googling applicants for jobs. As William McGeveran blogs, such an approach is not even on the agenda of privacy-protecting agencies in the US. But as more sites like PlateWire and DontDateHimGirl.com pop up, just about anyone may end up trailing dozens of virtual scarlet letters into their search results.

That’s one reason I proposed certain duties for search engines to clarify challenged information in certain results. As I tried to work out the intricacies of such a scheme, I began to sense that duties like those imposed on credit reporting agencies might not be feasible. But I still sense that something ought to be done, lest we see a rise of “virtual vigilantism” that Dan has done such a good job chronicling and critiquing. Perhaps the Finnish approach isn’t that strange after all. Let data aggregators and search engines put together their dossiers…but let the “accused” have some recourse before the data gets used. And if that due process is exceedingly unlikely to be accorded (as in the hiring context), perhaps keep the data out of decisionmakers’ hands altogether.

Art Credit: Jeremy Bentham (?), Panopticon. It’s his idea, but I don’t know if he drew this–Google Images doesn’t say. One more reason to read Lastowka’s excellent work on digital attribution.

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Introducing Guest Blogger Allison Danner

danner-allison.jpgIt is my pleasure to introduce Allison Danner, a professor at Vanderbilt University Law School. Allison is a specialist on international criminal law and teaches courses on a variety of international law topics. She was a Visiting Professor at Harvard Law School in fall 2006 and at UCLA Law School in spring 2006.

Before joining the faculty at Vanderbilt, Allison served as a clerk for United States Supreme Court Justice John Paul Stevens and for Judge John T. Noonan, Jr. of the Ninth Circuit Court of Appeals. She received her B.A. from Williams College and her J.D. from Stanford Law School.

Some of her recent publications include:

* When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War, 59 Vand. L. Rev. 1 (2006).

* Judicial Oversight in Two Dimensions: Charting Area and Intensity in the Decisions of Justice Stevens, 74 Fordham L. Rev. 2051 (2006) (with Adam Samaha).

* Beyond the Geneva Conventions: Lessons from the Tokyo Tribunal in Prosecuting War and Terrorism, 46 Virginia J. Int’l L. (2006).

* Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75 (2005) (with Jenny Martinez).

* Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int’l L. 510 (2003).

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Thanks for the visit

It’s time for me to sign off, so I wanted to say thanks to Dan and company for having me and leave some parting thoughts.

1. Since my post that generated the most comments related to the Duke rape case, I just wanted to make a couple of notes in response to the latest developments. I can think of no justification whatsoever for failing to make a complete and pointed disclosure of the DNA results, and I imagine that Mr. Nifong will soon be facing additional problems related to that lapse. But no matter what the ultimate outcome of the case, I fear the media firestorm the case has generated will deter rape victims from coming forward in the future, and that would be truly be a tragedy. We must not use the problems that have arisen in relation to this alleged victim as an excuse not to take other complaints seriously. At the same time, I hope the the criminal justice apparatus here in North Carolina will take a hard look at itself and consider implementing some new procedures like a more vigorous use of the grand jury and earlier interviews of victims by prosecutors.

2. I also wanted to make an appeal to our law student readers and recent law grads. When you have a minute, send an email to your professors to let us know how you are doing. I find the hardest part of being a law professor is that you meet all these wonderful students and become invested in their success, but then they understandably disappear after graduation, never to be heard from again. I at least want to know how you’re doing! So please keep in touch.

3. Most important, go Deacs! We’re playing in the Orange Bowl tonight, where as always we’re going in as the underdog. No matter what happens, it’s been a glorious season!

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AALS Blogger Happy Hour

wine1a.jpgAs a reminder, I’m moving this announcement to the top. Hope to see many of our readers on Wednesday!

It’s time again for what is beginning to be an annual AALS tradition. On Wednesday, January 3rd, at 9:00 PM, we’ll be co-sponsoring a happy hour at the AALS conference. The venue will be Cloud, located at One Dupont Circle, Washington, DC (right off Dupont Circle at New Hampshire Avenue). Thus far, many of the bloggers at PrawfsBlawg and here at Concurring Opinions will be there. Please mark your calendars. I hope you can join us!

Employer-Based Health Insurance as Social Darwinism

social darwinism.jpgThe NYT has done a great job chronicling the social costs of diabetes this year. A recent article focuses on the ADA struggles caused by the illness. Consider the following situations:

A mortgage loan officer in Oregon was denied permission to eat at her desk to stanch her sugar fluctuations, and eventually was fired. A Sears lingerie saleswoman in Illinois with nerve damage in her leg quit after being told she could not cut through a stockroom to reach her department. A worker at a candy company in Wisconsin was fired after asking where he could dispose of his insulin needles.

Some of these workers have rights under the ADA, but many live in circuits where judges consistently refuse to recognize diabetes as a disability under the Act. The employers sound heartless, but face an unavoidable market logic: when the health cost of diabetics average “five times that of workers without diabetes,” those who can eliminate “bad risks” from their workforce can gain an edge over competitors.

Our unique system of employer-based health insurance promotes Social Darwinism on two levels. First, the chronically ill individuals most in need of health care are the first to be shut out of it. Second, small employers are often the ones most vulnerable to catastrophic consequences of sick workers because they can’t afford to spread risk around (or buy plans that can).

This is one reason why I hope Jacob Hacker’s The Great Risk Shift lives up to its billing as “the essential policy book of the year.” Hacker realizes that there is something deeply wrong with a system that punishes people for being sick. There is little reason to expect some “private” or “charitable” solution to the problem of the uninsured, since nonprofit institutions have been stretched to the limit here and “good employers” that provide insurance will, as often as not, be undercut by more cutthroat competitors.

Much like the debate over net neutrality, the debate over employer-based health insurance will come down to our sense of the nature of fair competition. Hopefully we can all agree that a system that encourages employers to dump the most vulnerable workers is suboptimal.

Photo Credit: Flickr/beigeinside.

Happy New Year (ala Roth)

groszwarning.jpgI was recently listening to an interview with Philip Roth, and he recited a provocative passage he wrote in 1999 (apropos of millennium celebrations):

We watched the New Year coming in around the world, the mass hysteria of no significance that was the millennial New Year’s Eve celebration. . . . TV doing what it does best: the triumph of trivialization over tragedy. The Triumph of the Surface, with Barbara Walters. . . . a global outbreak of sentimentality such as even Americans hadn’t witnessed before. . . . The slightest lucidity about the misery made ordinary by our era sedated by the grandiose stimulation of the grandest illusion. Watching this hyped-up production of staged pandemonium, I have a sense of the monied world eagerly entering the prosperous dark ages. A night of human happiness to usher in barbarism.com.

From Roth, The Dying Animal, 145. As Roth said in the interview, the only time he does “redemption” is at the grocery store.

Anyway, the discussion of civility below reminded me of one of the essential qualities of our profession–the ability to look, together, at a desperate situation, and even in the midst of strong disagreement about what to do about it, treat each other with respect. Best wishes for a happy 2007, and I hope to see many of you at AALS.

Art Credit: George Grosz, Self-Portrait: Warning. This choice was inspired by the exhibit “Glitter and Doom” currently showing at the Metropolitan Museum of Art in NYC.

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(Moderately belated) Welcome to the Blogosphere: Dorf on Law

Michael Dorf (Michael I. Sovern Professor of Law at Columbia University School of Law) has been a participant in online discussion of legal issues for some time now, with his long-running column at Findlaw. As of about a month ago, Professor Dorf has also been a law blogger, opening shop at the new blog Dorf on Law. (For one recent interesting post, see Gerald Ford’s Greatest Legacy: John Paul Stevens.) Professor Dorf seems to have enlisted a number of co-bloggers as well, including Findlaw colleague Sherry Colb and Prawfsblawger Paul Horwitz.

Welcome to the blogosphere, Professor Dorf (and friends)!