May It Please The Court
Quote of the Day - A man's country is not a certain area of land, of mountains, rivers, and woods, but it is a principle; and patriotism is loyalty to that principle.
It Comes Down To This: Kelo Gets Evicted
Last February, the City of New London voted to condemn Suzanne Kelo's house, along with seven others, and redevelop the entire run-down area on the Thames River. The rub is in the result: the City wants to hand the redevelopment over to a private developer. From private homeowners to private commercial developers, with minimal government involvement.
The case went up to the U.S. Supreme Court and was one of the most widely-reported Supreme Court cases in recent history. The decision fell in favor of the City, in large part because it interpreted "public benefit" to fall within the Fifth Amendment's public use requirement. The 5-4 decision split the court, and also split much of the country.
Today, the deal is done.
The City of New London City Council voted to evict Ms. Kelo from her home, along with another holdout homeowner, Michael Cristofaro, and the matter is virtually over. She and Mr. Cristofaro may appeal, but I'm guessing the fight is just about gone in both of them. But she's had a huge effect on states, cities and counties across the country, many of which have enacted statutes to prevent future Kelo-takings, where land moves from private owner to private owner, and the City consequently increases its tax base.
I wonder whether King George would say, "I told you so."
There's No Reason Theft Of Sensitive Data Should Be Exposed To Criminals
Two Ways To Wipe Data From A Stolen Laptop And Cell Phone
There's a lot of buzz about stolen laptops and worries about the theft of personal data. Seems like veterans and travelers risk having their credit cards and other personal information spread around the internet, with criminals going on spending sprees with those credit cards. These days, with the amount of data that's stored on a small telephone could result in the same disaster if you either lose or someone steals your cell phone.
But the eventuality shouldn't even arise.
There are at least two software products out there that can immediately solve these problems. MIPTC recommends (I have no affiliation with these companies), two programs. First, for laptops, there's Lojack for Laptops, and for cell phones, there's RemotePROTECT.
While Lojack for Laptops is more robust (there's more hard disk space on a laptop) and has more options, both programs generally accomplish the same thing: they lock the device down, preventing unauthorized access to the sensitive data, and if the owner sends an appropriate command, then the software wipes the hard drive, making the laptop/cell phone worthless.
Both programs are inexpensive compared to the amount of damage caused. Lojack for laptops retails under $100 for three years of coverage, and RemotePROTECT is under $25.00 - a one-time charge.
So, if you have sensitive data, then protect it accordingly. You'll be glad you did, and so will the rest of us.
PSA: Italian-Americans To Celebrate Cheese This Fall
As part of its public service announcements, MIPTC announces the 5th Annual Cheese Feast of San Gennaro from September 21 to
Court Strikes Down The ADR Oddity of 'Binding Mediation'
At some point in time during a lawsuit, the parties inevitably ask about the prospects of settlement as a means to avoid continuing legal bills and the "outcome uncertainty" of a decision by the trial judge. There are a number of ways to approach settlement discussions with the other parties, and those lawyers with as much grey in their hair as me will remember the concept of "private judging," which now has been transmuted into the somewhat more sanitized word, "arbitration."
Arbitration then led to other sanitized words like "alternative dispute resolution" and "mediation." ADR is generally interpreted to encompass virtually all means of resolving disputes through means outside the court system. The two main forms are arbitration and mediation. They're very different animals.
In an arbitration, the parties have a form of a trial with the notable exceptions that the proceedings are conducted privately and not in court. There are a set of evidentiary rules and procedural means to either confirm or appeal an arbitration award in California, so while the process is somewhat less formal than court, it's not by much. Arbitration, though, has the advantage of being much faster and for that privilege the parties pay a private judge. That expense is a dramatic distinction from a court trial, depending on the fees, costs and length of the arbitration. The result can be binding or not, depending on the agreement of the parties.
Mediation, on the other hand, is a much less formal process where both parties and their lawyers pitch, cajole and negotiate with the mediator (notice I didn't say judge) on the respective merits of their case and try to convince the other side to settle by "using" the mediator. Mediations have no rules or procedure (at least in California and several other states where I'm admitted to practice) and the information provided to the mediator is usually quite different than provided in an arbitration. It's different because you're negotiating and trying to cut a deal, not litigate a case. You're more likely to discuss in confidence shortcomings in your case with a mediator. Mediation so far has always been considered nonbinding.
Given these differences, you treat an arbitrator quite differently than a mediator, and more like an actual judge. With an arbitrator (like a judge), you're an advocate, not a negotiator.
A recent California opinion explores the distinctions in these concepts alongside some of the surrounding issues involved with mediation, alternative dispute resolution and a brand-new oddity called "binding mediation." In the case on appeal, the parties reached a mediated settlement on all but two terms. The payment terms were left up in the air and the parties also agreed “in the event of a dispute as to the terms of the settlement the parties agree to return to the mediator for final resolution by ..." There, the communication broke down. One version said binding arbitration, but had a line through it, and was replaced by the word "mediation."
Binding mediation is very hard to describe, but in the case in the last link, the mediator described how he intended to resolve the parties' disagreement over the payment terms of the settlement he had mediated: “[T]he parties have agreed in advance that in the event the parties fail to agree, I then decide these terms and conditions, typically by asking the parties to each submit to me their final offers, accompanied by their oral argument as to why I should select their version over all others. I then select as the final binding provision the term or terms of either one party or the other."
Huh? If you are as dumbfounded as me, then we're not alone. Three justices on the Court of Appeal were likewise dumbfounded, and one of the concurring justices called the term "binding mediation" oxymoronic, and a "fuzz PR phrase ... not worthy of us [lawyers and judges]." That Justice further eschewed legal language "softening" from terms like "private judging" and "arbitration" to "alternate dispute resolution" and "binding mediation" by the MBAs and PR personnel who have businessified the practice of ADR. The main problem with binding mediation is the utter lack of rules and procedures guiding how to engage in it and then how to interpret what happens when something goes wrong, which it inevitably does, and as it did in this appeal.
Fortunately, binding mediation is still just that: an oddity. The Court dismissed it out-of-hand, banning the use of the hybrid form of mediation and arbitration. Justice Bedsworth, who blogs here, summed up the problem with binding mediation this way, "A case-by-case determination that authorizes a 'create your own alternate dispute resolution' regime would impose a significant burden on appellate courts to create a body of law on what can and cannot be done, injecting more complexity and litigation into a process aimed at less."
Well said. The parties will have to reach an agreement all over again, but this time include all the terms of their agreement.
Coast to Coast Internet Radio Queries Law Professor About Blogs
Law professors’ blogs are getting a lot of attention on college campuses across the country, and the blog has become a powerful tool. Postings reach people around the world in seconds. Tech-savvy law professors have already joined the blogging craze. But the question has been raised - should those blogs be part of their "academic pursuit?” Join my co-host and fellow Law.com blogger, Bob Ambrogi and me as Coast to Coast turns to the experts to get their insight on the credibility of the blog and look into the debate of law professor blogs vs. law professor articles.
Bob and I welcome three guests: Professor Susan Crawford, law professor at the Benjamin N. Cardozo School of Law and author of the Susan Crawford Blog; Professor Eugene Volokh, professor at UCLA School of Law and founder of the blog, The Volokh Conspiracy; and, Professor Miriam Cherry, visiting professor at Hofstra School of Law and blogger for ContractsProf and Concurring Opinions.
There Were Just Too Many Questions
It's difficult to rob a bank. Do you wear a mask? Stocking? Which method do you use? Calmly walk in? Rush and run? Then there's the whole question of whether to use a weapon and if so, what kind of weapon? Do you use a note or just ask the teller for money?
If you just can't handle all of those questions, what should you do? One unemployed Japanese man decided to ask the expert: A bank teller.
During what can only be described as an attempted robbery.
That's right. He just walked up to the teller and said, "Any idea how you rob a bank?" The alert teller told another teller, who then asked the man to leave. He complied. I guess the options were just too many to deal with.
As she escorted him out, she noticed a knife sticking out of his trousers and that his leg was bleeding.
According to Reuters, police then arrested the man. For illegal possession of a weapon.
Court Declares Bloggers Journalists
The verdict is in, and the Court of Appeal sided with bloggers: we're journalists and our work is protected under the California Reporter's Shield law. I can't say I told you so, but I handicapped it here two to one in favor of bloggers, and was wrong. It was a 3-0 decision, authored by Presiding Justice Rushing and joined in by Associate Justices Eugene Premo and Franklin Elia.
Plaintiff Jason O'Grady, who publishes PowerPage, posted information about Apple's "super-secret" Asteroid, and his email ISP promptly received a subpoena from Apple seeking to identify those Apple employees who Apple alleged divulged trade secrets about the device, designed to plug a guitar into a computer, not necessarily a novel idea, but new for Apple.
O'Grady and others who also later published about the device fought back, but lost in the trial court. They promptly took a writ, and here we are today, with an appellate decision favorably ruling that bloggers are journalists and prohibiting Apple from accessing O'Grady's email and sources. Apple has until early July to seek review from the California Supreme Court, but the company will most likely going to receive a postcard (see page 3) for its efforts.
The decision rebuffs Apple's argument that the publishing of information constituted criminal theft of trade secrets, especially here where Apple could have ferreted out its own employees who leaked the information. The Justices heavily rely on privacy rights, the Reporter's Shield and the federal Stored Wired and Communications Act for protection, but in the end, it comes down to good, old-fashioned First Amendment right of freedom of speech. If Ben Franklin had a computer, he would have been proud.
Apart from O'Grady's position as the blogger staring down Apple's subpoena, there were a host of Amicus Curiae in the case, including the Bear Flag League, ably represented by Jeff Lewis and Justene Adamec, who wrote the BFL's brief. MIPTC had the privilege of arguing the BFL's appellate brief, even if it was for only seven minutes. The BFL's position vis-a-vis bloggers as journalists was vindicated, and its brief was cited by the Court in Footnote 21.
In-depth coverage of the decision can be found on Bag & Baggage, SoCal Lawyer, Dan Gillmor, Lauren Gelman, Bob Ambrogi and the Volokh Conspiracy. All the details can be found on the Electronic Frontier Foundation website, and a recent update on Surfette, the site of the journalists' journalist.
The decision is significant not only in the law, but also given that the opinion liberally cites to numerous online sources. In particular, the court racked up eleven cites to Wikipedia. This is likely one of the most tech-savvy decisions I've read. Joe Gratz claims the opinion was written by clerks who are wired, but having been at the hearing and listened to and responded to the Justices' tech-savvy questions, I can verify white hair is not an indicator of a lack of computer knowledge. These justices were and are wired.
6/12/06 Update: you can listen to the oral arguments here.
Some Things Should Not Be Tried At Home. Or On Vacation.
There are some things that just scream "arrest me."
Let me give you an example: a man, in a woman's purple bathing suit, dancing in the street in Key West, flashing and then charging tourists for taking pictures of his privates, brandishing a 12-gauge flare gun and threatening to kill "dirt bags" with it.
I can imagine the closing argument, which would come right after eliciting these facts. "I rest my case."