Not So Simple Explanation

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.

Patent Abuse

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.

Don’t Do Drugs in Glynn County

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.

Proof versus Right

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.

Definitive Kagan Analysis

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, concerns her batting stance:

Elena Kagan's 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?

To Be 19 and Ignorant

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.

Looking Back from Law School

Over the last few days I’ve heard from two former students who are now in the first year of law school.  The first relayed two “things I wish I knew at SMG about law:”

The first is the fact that jurisdictions have different standards and different tests to apply to the same concept.  It seems obvious, however in real estate law I never remember going over how New York has codified their implied warranty of habitability making proving breach easier while other states, like Massachusets, have their implied warranty of habitability grounded in common law.

The second is a more depth explanation of stare decisis and the difference between binding and persuasive precedent.  Knowing which court’s decisions are binding [and] where is very important . . .  most students [do not] realize that decisions made by appellate courts in different circuits are not binding on each other.

The latter point was particularly timely, coming one day after discussing in class an exam question about “binding precedent” that most students answered incorrectly.  I’ll convey the concept more clearly next semester.

The second mentioned how his SMG law classes prepared him for law school:

Taking both LA245 and 349 seriously prepared me for the first year. My contracts professor is really “old school,” in that he requires written briefs of every case, and makes us stand up when he calls on us — but having done the case briefs in your classes made it much easier to handle. Also, I’m really amazed with how much we covered in those courses, because a lot of what we have been working on are things I already understood from your class: consideration and offer/acceptance in my contracts course…. res ipsa loquitur in torts… restrictive covenants and protected classes in property… those are just coming to mind. There are also the auxiliary concepts we picked up on the way, like how different jurisdictions might be favorable, or the hierarchy of the court system, or even that Pi = plaintiff, and Delta = defendant … all things that a lot of my classmates didn’t know or understand at first.

He confirms what I tell prospective law students in the advanced courses:  case briefs and discussion-based classes can help train students for law school, but other students will catch up to whatever edge they provide.  Still, it is heartening to hear the courses benefited him in some way.

No Bell

The recession has whacked salaries of associates of big law firms, but has not reduced the disparity in starting associate salaries according to Study Shows Sharp Disparities in Law Associate Compensation.  The study is based on 2008 starting salaries.  Since 2000 starting associate salaries abandoned a bell-curve distribution for a distribution with two peaks.  The first is part of a small bell curve between $40,00 and $65,000 and accounts for 42% of starting salaries.  The line trends down steadily to $65,000 and then soars to a narrow peak between $160,000 and $170,000, where 23% of starting salaries lie.  A rollback in starting salaries and re-engineering of associate compensation models should move that peak to the left in coming years–it may “inch back toward the $145,000 range” flatten the curve.  In other words the low end will remain low and the high end will move closer to it.

Juror #131

I’ve not had jury duty for at least a dozen year.   A jury summons used to arrive in the mail every three years and then–nothing.   Last year the jury commissioners rediscovered me but the date, October 9, conflicted with teaching.  (That conflict existed only in my eyes.  It would not likely have excused me from serving.)  I rescheduled to today, March 9, the first Monday of spring break.  The numbers worked in my favor.  Most of those summoned for jury duty are not seated on a jury and if I were to be seated the average trial in Middlesex Superior Court lasts four days.  I could satisfy my civic responsibility and not miss any class time.  I would like to be a juror.   In recent years my wife and two of our three sons have sat on juries and they all thought it was interesting and rewarding.  I’m jealous.

Then a hitch developed.  Judy wanted to visit her father this spring in Florida, I have this week off from teaching, so why don’t we go?  We dealt with the potential conflict with jury duty by scheduling the trip for the end of the week and next weekend.  Not much margin but how likely was it that I’d be selected for a jury?  I’m a lawyer, a college lecturer, once a defense counsel used a peremptory challenge to bounce me from a criminal case because family members have been victims of crime–the numbers made actual jury time unlikely.   I approached today with an odds-maker’ s confidence.

I drove through fog, heavy wet snow, and morning rush hour traffic to arrive on time at Middlesex Superior Court in Woburn.  After passing security–my hip set of the metal detector–I checked into the jury assembly room with 143 other souls.  After the obligatory judge’s welcome and instructional video I opened the privacy text I’m using in a seminar starting next Monday and read while I waited for something to happen.  We were told that eight judges had jury trials starting today–that would be 112 jurors at 14 jurors (12 +2 alternates) per panel.  With conflicts, challenges, and excused dismissals and factoring in the number gaps caused by absentees my #131 looked vulnerable.

The court officers made an announcement: 40 jurors were needed upstairs for a criminal trial.  Numbers were called out, ending at 48 because of absentees, and the pool walked up two flights.  I returned to reading about digital searches and seizures.  Twenty minutes passed.  Another announcement:  70 jurors were needed upstairs for another criminal trial.  I packed my bag before they called my number.  Seventy of us climbed two flights of stairs to Judge Fahey’s large, light, and airy courtroom and I took a seat in the first row on the visitors side of the bar.  The Woburn courtooms are much nicer than those in the old courthouse in East Cambridge.   Judge Fahey entered, we all rose, the judge sat, we all sat, and then she told us about the case.  Three counts: attempted murder, assault with a deadly weapon, assault.  She read the list of prospective witnesses:  there were more than 20.  Uh-oh.  There go Florida and maybe the first few days of post-break classes if I am chosen.  The judge questioned us aboutour  potential bias, conflict of interest, difficulty understanding the proceedings, and substantial hardship if selected for the jury.  With a dozen others I raised my hand on the last question, prepared to mention my non-refundable airline tickets to visit my 88-year old father-in-law.  The clerk recorded our numbers–if we were called we could explain our hardship to the judge and counsel, and the judge would decide whether to excuse us from this trial.

The clerk called the first number.  The juror rose and took seat #1 in the jury box.  The clerk called another number, and another, repeating the process until jurors filled 14 seats.  The judge excused a few before they were seated.  Her sidebar conversations with the jurors were out of our earshot.  The prosecutor and defense counsel studied the juror questionnaires for five minutes, then approached the judge with their peremptory challenges.  The judge excused the challenged jurors and new jurors were called in sequential order, seated in the box, and subjected to the same scrutiny.  In this fashion it took almost an hour to select a jury.  The last one chose was juror #88.  Plenty of warm bodies before they would have gotten to me.  I was disappointed because it looked like an intersting trial, but relieved not to have to explain to Judy that I couldn’t come to Florida.  All of us not chosen returned to wait in the assembly room.

Twenty minutes later there was another call for jurors, 70 for a civil case.  I did the math. 28 jurors had been selected for two trials, they needed 70 more, there were a number of gaps in the number sequence–I might be called for another impanelment.  The court officers read out the numbers:  “44 . . . 48 .  . . 49 . . . 52 . . . ”  I cheered when a string were called in sequence:  “90, 91, 92, 93, & 94.”  The numbers rose from 100 to 110 to 115.  It was getting close.  “120 . . . 121 . . . 122 . . . Okay, that’s it.  The 70 jurors called report to the 6th floor with the court officer.”


I returned to privacy law and read for a while, until another court officer spokeinto the podium microphone.  “Two more judges upstairs need jurors.   Unfortunately, there are not enough of you left to fill the pool so one trial is put over to tomorrow and the other is putover to Wednesday.  This completes your jury duty for three years.   Thank you.”   Two minutes later the room was empty.  It was 11:50 AM, unprecedently early to be excused from jury duty in my experience.

Writing this and watching heavy snowflakes fall through gray mid-afternoon light, I’m happy to be home.  I have much work to do before next Monday and will enjoy a few days by the ocean in Florida weather.  Part of me would like to be seated in that criminal trial hearing the prosecution’s case.  Not the most part, but a part.