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Tagged: law

Culture / Law school / Random / The law

One more thing lost

I’m watching The Pelican Brief (and I’m only 20 minutes in).  Two things stand out.  First of all, Cynthia Nixon played one of Julia Roberts’ law student friends, which is kind of hot.  I guess she got her Sex and The City J.D. by having a part in this film.

Second, I loved — as I always do — the library scene where Julia Roberts rifles through countless dusty old law books, trying to figure out who might have killed the Supreme Court justices.  You can feel the drama.  Then I thought about it: in the digital age, there is no dramatic dusty old book scene.  There’s just Julia Roberts, staring slackjawed at shitty old Westlaw.  Hollywood is never going to put together any frantic iPad research sequence.  (“Turn it to portrait orientation!  Hurry!”)  I hate the iPad and all it is doing to the death of print.

The law

Reckless op.

I’ve always enjoyed hearing Justice Stevens’ laconic, flat, Chicago-y accent on the bench and his dry sense of humor at public appearances. But at the ripe old age of four hundred, he is growing ever-crotchetier, and it’s enjoyable to watch. In my mind’s eye, I picture the “Stop it! Stop this jibber-jabber!” judge from Boston Legal. (In sincerity, my affinity for Justice Stevens is real.)

Granholm v. Heald, 544 U.S. 460 (2005), was a case involving the validity of States’ restrictions on wine shipments direct to the consumers in those States, usually over the Internet. Those who wanted the Court to permit out-of-state shipments direct to the consumer argued that the restrictions were an impermissible interference with interstate commerce, and they won the day.

Justice Stevens was among the dissenters. His argument was that section two of the Twenty-First Amendment, which repealed Prohibition in this country, “should be ‘broadly and colloquially interpreted,'” so that States may retain the power to restrict alcohol shipments if they want to. What I remembered about this case was that he referred to “those members of the younger generations,” and pointed out that his position on the amendment was based on his “understanding (and recollection) of the historical context.” In other words, Don’t try to tell me what the Amendment means — I’m the only one here old enough to remember it happening!

But I think yesterday’s high-speed car chase case offered Stevens the chance to write an even crankier dissent. In that case, Scott v. Harris, ___ U.S. ___ (2007), Georgia police clocked a driver doing 73 in a 55, and they tried to pull him over. Rather than just pulling over, the driver led the police on a dangerous, nearly ten-mile chase through intersections and a strip mall parking lot at speeds of over 85 mph. When the lead police car finally rammed the driver’s car in an effort to stop him, the 19-year-old driver’s car pitched over an embankment, rendering him paralyzed. He sued the police, claiming that they violated his Fourth Amendment rights against unreasonable seizure.

The decision, which was 8-1, held that the District Court and the Court of Appeals both incorrectly denied the police’s motion for summary judgment, which had the effect of permitting the driver’s case to go to a jury for a determination whether the police actions were “reasonable.” The Supremes, all except Stevens, said that on a motion for summary judgment, the court is supposed to construe the facts in the light most favorable to the non-movant — except when no reasonable jury could believe the non-movant’s version of the facts. Because the lower courts shouldn’t have believed the driver’s explanation of his own conduct, the majority (in an equally amusing opinion by Justice Scalia) held that the lower courts got it wrong. The majority noted that there was a videotape in the record that disputed the driver’s version of the facts. “[R]eading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test[]. . . . The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.” Because the tape depicted a “Hollywood-style car chase of the most frightening sort,” it totally contradicted the facts the driver alleged, and the lower courts should not have adopted them. The Court took the unusual step of posting the video on its web siteand citing the URL in a footnote. You hear the police giving the orders to “take him out.” (Is nothing not on YouTube? Don’t bother with the Court’s link, go here and here.)

Justice Stevens, writing only for himself, dissented. The reason: the tape wasn’t as terrible as the rest of the justices believed, so the reasonableness of the police actions should have gone to a jury. What’s the big deal, he asked, writing that the “13 cars that respondent passed on his side of the road[,] … and both of the cars that he passed on the right[,] … no doubt had already pulled to the side of the road … because they heard the police sirens or saw the flashing lights” before the reckless driver got there. The rest of his opinion is also full of other descriptions that serve to minimize the danger created by the driver who was fleeing the police at 85+ mph. He also gets in a few good slams at the other justices, referring to them as “eight of the jurors on this Court” and “my colleagues on the jury.” But the best part of the opinion has to be footnote 1:

I can only conclude that my colleagues were unduly frightened by two or three images on the tape that looked like bursts of lightning or explosions, but were in fact merely the headlights of vehicles zooming by in the opposite lane. Had they learned to drive when most high-speed driving took place on two-lane roads rather than on superhighways — when split-second judgments about the risk of passing a slowpoke in the face of oncoming traffic were routine — they might well have reacted to the videotape more dispassionately.

I do love a good dissent.

Culture / Technology / The law

More on Google Book Search

I couldn’t help writing a rejoinder to those defenders of Google Book Search and, of course, good old Banks.  Because everyone should have the right to own their own content, however, I’ve posted it here on Before.  Why should World get all the good material?  For those who haven’t been following this storyline, start at Marcus’ original post on Google Book Search, then read my comment, followed by his “redux” second posting.

I’m still troubled by some of the arguments advanced in Google’s favor.  However nice or wonderful it would be to have every book in the world instantly searchable on the Internet, we cannot ignore the steady policy and laws of all the world’s democratic governments just because somebody would like to have that index.

Marcus claims that because some of the books have “absolutely no commercial significance to the publishers” somehow immunizes Google from abridging the copyright of the publisher or author.  Unfortunately, our laws don’t permit an infringer to make their own assessment of a work’s commercial significance and, if they find it to be zero, to use with impunity.  Further, I think the fact that the books are scanned shows they do have some commercial significance to Google.  And perhaps many of these titles have been out of print for years: as Google clearly plans to demonstrate, these old books have a value that can be unlocked by the technologies of scanning and indexing.

And, since each book does have indisputable value, why should Google be the one to profit from the unlocking of that value?  They’re not the author who wrote the book.  They’re not the publishers who took a chance and made an investment in the book.  They’re not even the libraries who shelled out a few bucks to buy the book.  They have no stake in the business of writing books at all.  So why should they benefit to the exclusion of the authors and publishers who do?  It’s argued that our copyright laws are out of date, so there should be some special exception for the Googles of the world.  But inventing a new technology is not some magic wand or shield that, when produced, defeats all claims held by the original creator and owner of a work.  The MP3 pirates learned that the hard way.

And I have to disagree that the appropriation of property with no monetary value can’t be “theft” or even just plain wrong.  I myself have been a victim of copyright infringement, so I know what it’s like.  I posted a rather ridiculous video of myself on my web site scaling down the face of an artificial climbing wall.  Months later, I went to the City Center mall and found it was showing on a fifteen-foot-high screen in a continuous loop!  This was part of a video advertising all the fun things that might be found in a great downtown (for the record, the rock-climbing happened at Easton).  Did my video have any monetary value?  No.  Did the company that stole my work and aired it thousands of times in a very public forum derive a commercial benefit?  Yes — else why do it.  Did they have, at the very minimum, the courteous obligation to ask whether they could use it?  I think the answer to that is clear.

Google argues it would be impractical for them to ask the author or publisher of each book for the rights to scan the book before including it in their permanent digital archive.  Therefore, they’re just going to do them all, copyright be damned.  A simple analogy to the physical world points up the absurdity in this logic.  Google’s stance is like my saying I can drive my car across the backyard of every house in the neighborhood, because it would just take too long to get permission from each homeowner.

Our system of copyright could not be more liberal.  In order to claim the copyright on an original work, all the author has to do is put the word “Copyright” and the year on it.  Unlike with patents, there is no central registry that authors have to apply to for permission: we just want to encourage creative endeavors by giving them reassurance that they’ll earn the fruits of their labors without interference.  No high-flying tech company should be permitted to swoop in and take that away.

The law

Tiptoe through the torts

When the defendant, Clifford Witter, a dance instructor, waltzed out of the employment of the plaintiff, the Arthur Murry Dance Studios of Cleveland, Inc., into the employment of the Fred Astaire Dancing Studios, the plaintiff waltzed Witter into court.  For brevity, the two studios are called ‘Arthur Murray’ and ‘Fred Astaire’.  At the time Witter took his contentious step, Arthur Murray had a string attached to him — a certain contract prohibiting Witter, after working for Arthur Murray no more, from working for a competitor.  That Arthur Murray and Fred Astaire are rivals in dispensing Terpsichorean erudition is not disputed.  Now Arthur Murray wants the court to pull that string and yank Witter out of Fred Astaire’s pedagogical pavilion.

No layman could realize the legal complication involved in Witter’s uncomplicated act.  This is not one of those questions on which the legal researcher cannot find enough to quench his thirst.  To the contrary there is so much authority it drowns him.  It is a sea — vast and vacillating, overlapping and bewildering.  One can fish out of it any kind of strange support for anything, if he lives so long.  This deep and unsettled sea pertaining to an employee’s covenant not to compete with his employer after termination of employment is really Seven Seas; and now that the court has sailed them, perhaps it should record those seas so that the next weary traveler may be saved the terrifying time it takes just to find them.

Arthur Murray Dance Studios of Cleveland v. Witter, 105 N.E.2d 685, 687 (Ohio Com. Pl. 1952).

Political / The law

Look out

The pain from the recent spate of court-related killings won’t be able to heal until some gun nut informs the country that if everyone could carry a firearm inside a courthouse, we wouldn’t have as many crazed defendants grabbing guns and shooting judges.  I do hope this brave truth-teller speaks out soon, because it is high time for there to be more loaded weapons around criminals.  After all, if guns were illegal, then only criminals would be able to shoot innocent court reporters in cold blood.

City life

City gets cleaner

I just witnessed Columbus City Council pass ordinance 1095-2004, which bans smoking in all public places. Businesses permitting violations of the law are subject to a $150 fine per offense. It takes effect in 90 days.

I went with Marc, which was quite a thrill, since he seems to know everyone in city government. We sat in the front row of the balcony, where a restless, wheezing, crusty crowd of lovelies wore matching T-shirts reading “KEEP OUR BUTTS INSIDE.” The stagnant environment up there only reinforced my desire for cleaner air.

After what seemed like not too much boring utility stuff, the ordinance came up for discussion. Charleta Tavares was barely two or three minutes into the reading when a man ten feet away from me on the balcony raised his hand. “I have a question!” he yelled. Then he started a shouting match with President Habash. Pretty soon a beefy policeman came by to talk with him. This got rather a lot of my attention, but I think I got the gist of what Tavares was saying.

They added a number of amendments to the proposed ordinance, which were asked for by the Council members, including an exemption for private clubs. Marc and I were a little confused about that, because the ordinance was sold as a worker safety issue, and we thought that was a pretty significant loophole. It turns out this refers to non-profit clubs only.

I can’t bore you with all the details, but I will share some highlights. When Tavares announced that private collections of ashtrays would be allowed in public places, the audience troublemaker, apparently confused, yelled, “This is bullshit!” and “You gonna have to take me out of here!” Which, sadly, the comely policeman had to do.

When Sensenbrenner voted no, he got a weary round of applause from the “butts” people, who knew they were going to lose. When it was announced that the amendment passed five to one, there was a serious cheer from the audience, including yours truly, who couldn’t help jumping to his feet like it was some kind of awesome play.

On the way out, we got into an argument with a guy who had been at the meeting speaking on how the Near East Side was getting short shrift. “Black men get killed a lot more often by guns than smoking, but you don’t hear about that. It’s hypocrisy.” I couldn’t help pointing out that smoking and shooting people are now both illegal. Then he said it was hypocritical that we still allow smoking in private homes. “I agree! Let’s ban that, too!” I taunted. “Bring it on!” (I was embarrassed to have appropriated a John Kerry slogan, but I hear it so often.)

And finally, as we left the building, we marched through a cloud of secondhand smoke spitefully produced by the ordinance’s opponents. Marc cutely began hacking up a storm. Unfortunately, the only retort they could come up with is unprintable here (but George W. Bush used it on the campaign trail in 2000).

As we walked past the man from the Libertarian Party, who did not offer us a bumper sticker, and past the signs reading “Hitler / Stalin / Charleta Tavares”, I couldn’t help getting deep whiffs of the sweet smell of democracy and the sharp scent of common sense. I hope I witnessed lasting history and, if you’ll allow it, felt the healthy winds of change in my city.

(Excitingly, the City’s web site on the ordinance was already updated with the correct vote count by the time I got home.)

City life

Driving woes

Today was the first day back to work and school for anyone affected by the big snowstorm. I just got back from San Francisco, where they don’t have snowstorms, they have whiny “peace rallies.” (It’s a different kind of disaster.)

OK, I am trivializing war here, but can’t help it. The Left Coast has never been my favorite locale for its radical positions on… everything.

Speaking of positions, I hope in-town readers manage to pick up a copy of The Other Paper this week and catch my letter to the editor on the new 315 ramps. The paper has done two major stories on the spat caused by city engineers who say the state has done an unsafe design for new ramps that provide better accessibility to OSU Hospitals.  Somebody else wrote in to say there shouldn’t be new ramps, there should be better transit. I say (in a rather amusing manner, I might add), that in an emergency I’d rather take an ambulance than a bus.

My other comment for today is on the “level three snow emergencies” that have been declared around the state.  I realize driving in some areas is to be avoided right now.  But can the state, by the level three emergency, legitimately make driving illegal? Under the policy (and I don’t know if it’s in a statute), counties can declare level 3, making driving on public highways entirely illegal (except in some cases of emergencies). I have several problems with this law. 

1) The law obliges a driver to get the information about the emergency in some way, but doesn’t specify how. Usually you hear about it on the radio or TV. So can the law require someone to own and operate a radio? The law can’t even require a man to read and write. 

2) What if you are out driving when it’s still level 2, and then level 3 is declared? There is no exemption for heading home. You’re breaking the law through no fault (or perhaps knowledge) of your own. 

3) Under this policy, you can be ticketed for driving. Isn’t it pretty dangerous to pull someone over, demand to know if it’s a driving emergency, and then issue a ticket? In this kind of weather, pulling over can easily put you in the ditch.

4) Some police, knowing all of the above, may be reluctant to actually enforce the law. This could lead to uneven enforcement. And if that happens, the whole rule of law is weakened.

Finally, to round out this driving-related posting (and because I have been quiet for so long), I would like to have a rare link on my site, to a BBC news article on London’s congestion charging scheme. The government there has implemented a new requirement that any vehicle driving in central London between 7am and 6.30pm has to pay five pounds. Taxis are exempt and local residents can pay only 50p. To enforce the measure, there’s a big network of fixed and mobile cameras that read license plates at the entry points and at key intersections within the city. If you don’t pay, the fines are much higher. They say the point is to cause drivers to pay the actual cost of causing congestion; the fees go toward transportation improvements. I’ve been following this plan for a while, and if you’re curious, there is a great deal of British news and government information.  It’ll be interesting to see what happens.