I don’t have time at the moment to capture my thoughts about the response to Aaron Swartz’s suicide, but I’m offended by the popular simple-minded explanation for his death: the government was prosecuting him, he committed suicide, therefore the government killed him. I’m not offended that his family and close friends embrace of this explanation–were he my son, my lover, my mentee I’m sure I would feel the same. I don’t know anything about Aaron Swartz that I’ve not read in the past week, but clearly that does not prevent me from commenting about the case–with a few exceptions (e.g. Larry Lessig) most of those embracing this binary view did not know him either.
Swartz wrote about his depression. Depressed people cannot think clearly and rationally about why they feel low–otherwise they could reason their way out of their depression. Did the prosecution over-charge Swartz–that is, did it wring every possible criminal claim out of the facts? Assume it did, then ask: how many other criminal defendants currently awaiting trial in Massachusetts have also been over-charged? Two? Two hundred? Two thousand? 80%? The answer is, “a lot”–assuming one could reach agreement on what it means to over-charge. Defense lawyers always think their clients have been over-charged. Prosecutors always think the charges are appropriate. Prosecutors have considerable discretion–which may in fact be a problem, but like most things legal the solution is not to straightjacket discretion.
Over-charging and aggressive prosecution are not unique to this case. How many criminal defendants believe they are being prosecuted unfairly? How many kill themselves because of it? Suicide is not a rational method for solving problems. Should the government not prosecute defendants who are clinically depressed?
I’ve already gone on longer than I intended. The point is that suicide of a depressed person cannot generally be explained with binary “but-for” analysis–a point that Eileen McNamara expresses more clearly than I have in this piece from WBURToday: Carmen Ortiz’s Case Didn’t “Kill” Aaron Swartz. Swartz’s death is a tragedy–because he was evidently a talented, passionate, and sensitive person whose gifts are now lost to the world due to mental illness. But I won’t blame the U.S. Attorney for his death.
A federal court in Cleveland is hearing corruption charges against former Cuyahoga County Commissioner Jimmy Dimora. TV cameras are not allowed in the courtroom. Nevertheless a local TV station is broadcasting trial excerpts–by having puppets recite actual testimony. Brilliant idea. I’d like to see the Republican debates in the same format.
In When Patents Attack!–truly a great title–This American Life devotes an hour to uses and abuses of software patents, focusing on Intellectual Ventures, a Silicon Valley company that exists to acquire and enforce patents through litigation. Outsiders view Intellectual Ventures as a patent troll–“a pejorative term used for a person or company that enforces its patents against one or more alleged infringers in a manner considered (by the party using the term) unduly aggressive or opportunistic, often with no intention to manufacture or market the patented invention” (I am perfectly comfortable citing Wikipedia for this definition). Intellectual Ventures disagrees. It’s a provocative episode if you have any interest in intellectual property and cutting-edge issues in patent law. One criticism is that it leaves the impression that ideas themselves can be patented, when patent law protects the manifestation or implementation of an idea but not the idea itself. As I said last night in class you cannot patent the idea <mousetrap>, only a particularly-described method or process for catching mice. (“Use peanut butter” is not particular enough.) The episode does address how software patent claims are often overbroad, throwing a net over far more than is legitimate, and I recommend it notwithstanding my criticism.
The next podcast is This American Life’s Very Tough Love, which originally aired on March 25 of this year. The entire episode deals with the drug court in Glynn County, Georgia, run by Judge Amanda Williams. No doubt Judge Williams sincerely believes that she is doing the right thing, but some of the criminal defendants caught in her unyielding and imperious grip have Kafkaesque experiences, a description that would come to mind even if it were not used in the episode. You must listen to the entire 60 minutes but, if you are in a mood for outrage, this will satisfy you.
Yesterday’s class on contract law prompted a number of students to ask variations on the same question: why does the law allow oral contracts? Wouldn’t one of the parties just lie in court about the contract’s terms? You can restate the question more broadly to ask why do courts allow witness testimony? Whether it’s two parties to an oral contract offering competing testimony about the contract’s existence or terms, or two divorced spouses in a child custody proceeding offering competing testimony about their relationship to the child, or a supervisor and employee offering competing testimony in a sexual-harassment suit, the issue is the same. A short answer is that our law has always allowed oral contracts unless the contract’s subject matter is governed by the Statute of Frauds, in which case the contract must be evidenced by a writing. If the terms are disputed then the law’s adversarial process deals with it as it does with any competing oral testimony. Attorneys subject the witness to direct and cross-examination and the jury or judge evaluate the witnesses’s credibility with the tools we use every day to decide whether to someone is telling the truth: body language, tone of voice, eye movement, nervous tics, uneasy laughter, etc.
This question involves what I call the proof versus right problem: do not confuse whether a person can prove her case at trial with whether she suffered a legal wrong and has a cause of action. In Introduction to Law I focus on the substantive issue–whether a person’s legal rights have been violated–not the proof issue–how difficult will it be to prove a fact at trial. Do people lie in court? Yes. Do people get away with lying in court? Yes, but most people don’t lie particularly well.
It’s Kagan-All-The-Time in legal periodical world. I’ve been impressed with her since hearing Kagan speak at a few conferences. She’s a good choice for the Court, and I think she’ll be approved. She is smart, personable, comfortable in her own skin, and confident. I think she’s pretty much in the center–she’s attracted flak from both the left and the right, which is a plus. She had not been an ideologue, another plus. The most refreshing analysis (from Legal Blog Watch via Bitter Lawyer via the source of most of my legal insights, MLB.com) concerns her batting stance:
Major League players critique her hand position (“she’s got the Barry Bonds choke-up working, maybe that’s two strikes on her”), balance (“her weight’s distributed evenly”), aggressiveness (“you can’t smile at the pitcher or you’re gonna get hit”), and other attributes as a batter. It’s amusing, and as useful as much of what one can read about her online. When Scalia tries to throw one by her, don’t you want to know that she can handle it?
Texas community college freshman Kelsey Gloston did not want to fulfill jury duty. Called with 59 other prospective jurors to federal court in Houston, Gloston ignored the summons. When the court clerk called to ask where she was Gloston blamed her absence on a flat tire. When the clerk offered to drive her to court she said she was going to class instead. When the clerk called back to say the judge himself wanted her in court the next day to explain herself, Gloston “repond[ed] rudely and hung up.” The following day U.S. Marshals “rounded up” Gloston and brought her before Judge David Hittner “in ankle and wrist restraints . . . wearing flip flops, a tight white T-shirt, short-shorts and sporting green streaks in her hair.” The angry judge said “I’m going to hear exactly what your problem is with jury duty and what your problem is with how our country operates. . . . Nobody hangs up on our people.” Judge Hittner released Gloston on instructions that she appear with a lawyer the following day for a contempt hearing. Gloston appeared as ordered, apologized for her disrespect, and was let go with a lecture and a copy of the Constitution. At first Gloston’s father planned to sue–of course–and blamed the judge for overreacting, saying of his daughter “she’s 19, she’s ignorant, she’s a kid. They don’t take anything seriously.” (Way to have my back, Dad!) Now he’s happy to put it behind.