The Residue of Design

“Luck is the residue of design” said Branch Rickey.  Last Friday I wrote a chapter on the Computer Fraud and Abuse Act for my Internet law casebook.  The chapter’s first two cases deal respectively with successful CFAA prosecutions for the Morris Worm and hacking.   Following these I want to present the problematic recent CFAA prosecution of Lori Drew for creating a false MySpace profile in the infamous Megan Meier suicide.  A federal jury  convicted Drew last November of various misdemeanors, but in early July presiding judge  George H. Wu provisionally acquitted Drew of all charges, subject to his issuance of an opinion explaining his ruling.  Great stuff–a high-profile, emotionally-charged case with a dramatic legal turn that fits my chapter’s theme.  There was one problem:  as of Friday morning Judge Wu had not issued his opinion and the chapter is incomplete without it.  I created a Google Alert for <Lori Drew acquittal decision Wu>, then spent the weekend preoccupied with how to fill the remainder of the chapter while waiting for the opinion.

Reading email this morning before researching the CFAA to find another case I saw this Google Alert in my inbox “Lori Drew Opinion Handed Down.”  The alert contained a link to Orin Kerr’s 8/29 Volokh Conspiracy post, which in turn linked to the opinion.  BINGO!  The optimal solution to my problem, thanks to my creation of an Alert and Kerr’s personal interest in the case.  Kerr, who worked pro bono on Drew’s defense, noted in Saturday’s post the strange press silence about the judge’s opinion. As of today, Monday, I’ve not seen it mentioned elsewhere.

The real estate developer for whom I worked often said “I’d rather be lucky than smart.”  Sometimes the tiniest bit of smarts can generate its own luck.

Summer Wanes

This morning’s swim was extra wet, Hurricane Danny’s peripheral rain plopping on the lake’s still surface.  The lake was 20 degrees or more warmer than the 52 degree air temperature and especially quiet, the rain and chill keeping inside the occasional fisherman I see during my just-out-of-bed ritual.  I don’t know how many more morning swims this season holds.  Likely they could be counted on one hand, and certainly no more than two.  Classes start in five days and life swings back to the city.  Judy and I have been in Maine seven of the past eight weekends, missing one for my bike trip around Lake Champlain and her family visit to the Garden State.  We had Maine guests every weekend save one, and loved it all–which does not mean we won’t enjoy time off from being hosts.  This weekend’s guests are long-time friends with whom we used to own a house.  They require little hosting, and we can dial back the relentless attention to detail required to make the weekend run smoothly.  Relaxing, but with the first taste of fall weather the past few days–and with Hurricane Danny dropping buckets of rain outside–this weekend is a transition.

I felt this keenly while I swam.  Rather than don a post-swim rain-soaked robe I left it in the house, walking to the dock wrapped in a towel.  Diving in was a relief, the lake so much warmer than the air and rain above.  I started fast to shake off the chill from the walk and swam to the rock ledge off the south end of our cove, standing in neck-deep water to adjust the goggles. Mist pockets drifted at the cove’s far edge and here and there across the lake.  The gray sky and water set off the dark green trees climbing the hills around the lake.  The boat and swim raft floated motionless in the cove, no wind disturbing the lake’s glassy rain-pocked glassy.  I tried to brand the image into memory, then swam 500 feet to the submerged rock off the cove’s northern point.  I swam fast, pushing myself, enjoying the rhythm–inhale on the breath stroke, water rushing past head and arms, loud burbling exhale.  This summer I swam anywhere from a half- to one and a half-miles each day at the lake and slip easily into good rhythm.  I never sprint, though, and almost out of breath was relieved to spot the large algae-slicked rock looming a few yards ahead.  It sits two feet below the surface 20 yards off the point, in six feet of water–a lurking hazard for an inattentive boater with a outboard motor.  After catching my breath on the rock I slowly swam back to the dock.  Each breath stroke brought a view of familiar water, rocky bank, mottled green foliage, gray-brown trees, and gray sky, a rolling series of snapshots skewed right 90 degrees.  I peeled the goggles off at the dock and floated on my back.  Not for long–the rain was falling too hard on my face for comfort.  Wrapping the towel around my waist–I left it in a tight roll so it was soaked on top–I walked back to the house for my morning coffee.

Loaner

My car–an automatic  Saab 9-3  Sportcombi wagon–has been in the shop since a week ago Wednesday to repair various problems in the radio and navigation system.  I bought it used  two years ago with the factory warranty in place.  I’ve been contentedly driving a loaner, a standard 9-3 sedan.  In fact, I like the loaner more than my own.  It’s peppier, more fun to drive, gets better mileage, and is easier to park.  I have never been as relaxed about a car being in the shop.  I do not call to bug them.  When they call to say “we’re still trying to figure out what’s wrong” (how did the amplifier get corrosion? It’s mounted underneath the cargo compartment.  Did the dogs drool seep through the floor?) or  “we’re waiting for a part” I say “no problem” and keep the loaner for another day.   I wonder what I could get on a trade-in for a used 9-3 sedan.

Feeling for the One L’s

Over the past ten days I’ve heard from a number of former students who had just begun classes as first-year law students.  I appreciate that they’ve taken time to write.  At the beginning of their first year most students are excited by actually starting this thing they’ve thought about for years, stimulated by their insertion into a group of a few hundred equally smart Type A personalities, and fretting about how they will do.  How will they handle the first time a professor cold-calls on them?  How will they keep up with the reading?  Who among their classmates is like-minded enough to befriend?  I wrote recommendations for all of the students who emailed and I feel some responsibility for them.  Not a lot, but some.  A headline like this from Tuesday’s NY Times grabs me:  “Downturn Dims Prospects Even at Top Law Schools.”  The article’s opening paragraphs are grim:

This fall, law students are competing for half as many openings at big firms as they were last year in what is shaping up to be the most wrenching job search season in over 50 years.  For students now, the promise of the big law firm career — and its paychecks — is slipping through their fingers, forcing them to look at lesser firms in smaller markets as well as opportunities in government or with public interest groups, law school faculty and students say.

The article explains that things are worst for the class of 2011, the rising 2L’s who are looking for 2010 big-firm summer associate positions.  There are too many ahead of them in the firm pipelines so the firms are cutting back their recruiting.  Even if things pick up over the next year, the rising 2L’s will miss have missed the summer associate boat that sails in 2011.

All of the students who wrote are clear-eyed about what lies ahead–but the road will be much harder than they thought when they applied last fall.

More on the Tenenbaum Judgment

Admired in Class, a Scholar Falters in Court covers the response to Charlie Nesson’s handling of the Tenenbaum file-sharing trial.  A sample:

It was a stinging defeat for Professor Nesson, and to many in the legal community, it seemed to be a moment when an eccentric scholar’s devotion to a soaring vision blinded him to the practical realities of winning a legal case. Taking on a lawsuit that his own allies warned was ill-advised, Professor Nesson acted in ways that many observers found bizarre and even harmful to the case.

The article reports that Larry Lessig advised Nesson in a personal email that he “[had] serious reservations about the suit and counseled against Professor Nesson’s plan to argue that Mr. Tenenbaum had made ‘fair use’ of the music . . . It would be wrong, Professor Lessig wrote, to ‘pretend’ that ‘fair use excuses what he did.’  ‘It doesn’t,’  he added.”  My undergraduate Internet law students would have told him the same thing.  They would have counseled Joel Tenenbaum to settle.  Sometimes the more you know, the dumber you are.