Another environmental concern

Over the past decade law enforcement has cracked down on the production of methamphetamine, shutting over 100,000 homemade meth labs. Many of these labs were located in private homes. During production methamphetamine residue lodges in carpets, upholstery, drapes and other surfaces. When these former meth labs are sold unwitting buyers are exposed to the residue and suffer respiratory problems, severe enough in some cases to require the residents to vacate the homes. As reported in The National Law Journal on March 17 some buyers have sued the sellers and brokers involved in the sale for their failure to disclose the property’s former use as a meth lab. The article cites two state trial court decisions–Taylor Bean & Whittaker Mortgage Corp. v Wagner in Ohio and Bloor v Fritz in Washington–involving such claims; the Washington case is on appeal following the trial’s award of $94,000 in damages from the seller and broker to purchasers who were forced to move because of methamphetamine contamination. Fourteen states have passed laws mandating that owners disclose their property’s use for production of methamphetamine, and 13 states require that sellers clean up such former labs before selling them.

Privacy and Security

A story in yesterday’s Wall Street Journal titled NSA’s Domestic Spying Grows as Agency Sweeps Up Data (subscription required) reports that–

According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called “transactional” data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA’s own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge’s approval when a link to al Qaeda is suspected.

The NSA’s enterprise involves a cluster of powerful intelligence-gathering programs, all of which sparked civil-liberties complaints when they came to light. They include a Federal Bureau of Investigation program to track telecommunications data once known as Carnivore, now called the Digital Collection System, and a U.S. arrangement with the world’s main international banking clearinghouse to track money movements.

The effort also ties into data from an ad-hoc collection of so-called “black programs” whose existence is undisclosed, the current and former officials say. Many of the programs in various agencies began years before the 9/11 attacks but have since been given greater reach. Among them, current and former intelligence officials say, is a longstanding Treasury Department program to collect individual financial data including wire transfers and credit-card transactions.

An NSA spokeswoman stated that the Agency “strictly follows laws and regulations designed to preserve every American’s privacy rights under the Fourth Amendment to the U.S. Constitution.” If you find comfort in that statement, consider this description of how the Agency uses its expanded domestic surveillance authority to pursue leads:

If a person suspected of terrorist connections is believed to be in a U.S. city — for instance, Detroit, a community with a high concentration of Muslim Americans –the government’s spy systems may be directed to collect and analyze all electronic communications into and out of the city. The haul can include records of phone calls, email headers and destinations, data on financial transactions and records of Internet browsing. The system also would collect information about other people, including those in the U.S., who communicated with people in Detroit.

The information collected “doesn’t generally include the contents of conversations or emails.” Generally. That’s a word we lawyers use to say “most of the time we don’t, unless we do.” Even without such content the NSA can identify the parties to phone calls and emails, their locations, and their cell phone numbers. The telecoms enable the NSA’s efforts either by copying all data through their switches to share with the NSA, or by ceding control to the NSA over the switches. The White House is pushing a bill that would immunize the telecoms from liability for privacy claims arising from this data collection. The NSA domestic surveillance program includes elements of and technology from the Pentagon’s Total Information Awareness initiative that Congress defunded in 2003 following criticism of TIA’s potential for civil rights abuses. Before it was killed the Pentagon renamed TIA to Terrorist Information Awareness to make it seem less creepy. Now the NSA is implementing TIA through its “black budget,” beyond effective non-NSA scrutiny.

The Journal story reminded me of a recent Wired column by the always-prescient Bruce Schneier: What Our Top Spy Doesn’t Get: Security and Privacy Aren’t Opposites. Schneir’s column focuses on a proposal from National Intelligence Director Michael McConnell to monitor all–“that’s right, all–” Internet communications:

In order for cyberspace to be policed, internet activity will have to be closely monitored. Ed Giorgio, who is working with McConnell on the plan, said that would mean giving the government the authority to examine the content of any e-mail, file transfer or Web search. “Google has records that could help in a cyber-investigation,” he said. Giorgio warned me, “We have a saying in this business: ‘Privacy and security are a zero-sum game.'”

This states it as baldly as one can. This administration’s top intelligence personnel consider every increase in security to require a corresponding decrease in privacy. As Scheier states “I’m sure they have that saying in their business. And it’s precisely why, when people in their business are in charge of government, it becomes a police state.” Scheier says privacy versus security is a false dichotomy, that the true dichotomy is between liberty and control–and that “liberty requires both security and privacy.”

Thinking of Law School? Read This

A recent article in the Wall Street Journal titled “How to Cut Debt, Boost Job Prospects from Law School” (subscription required) addresses some issues raised here over the past few months about careers in the law (See Legal Careers, Not Covered by LSAT Prep, To Be* or Not to Be*, Women and the Law, Lawyer’s Life). The Journal article echoes much of the advice I give about law school; these are the highlights, reordered to my preferences.

  • Be a big fish. This is my primary piece of advice. Finishing at the top of your class at a regional law school will grab the attention of employers local employers. Unless you are extremely confident that you will place high enough in a nationally-ranked school to land the type of job you seek, going to a school where you can be a star will likely better serve your career.
  • Think about location. This goes hand-in-hand with being a big fish. “[I]n at least half of all states, at least 60% of graduates got an in-state job, according to the National Association for Law Placement, in part because most employers are more familiar with schools in their region.” If you want to find a job on the other side of the country then you should attend a nationally-ranked law school. If you will remain in the area after graduation then being in the 50th percentile of your class at a national school will not get you more interviews than being one of the top ten in your class at a regional school. The school’s alumni are likely to be well-entrenched in the local legal market and will open doors for a person at the top of his or her class.
  • Look for transfer opportunities. It is generally easier to get into a nationally-ranked school as a 2L than as a 1L. Be a big fish, excel in your first year, and you may be able to transfer to a nationally-ranked school.
  • Consider an in-state public school. “An in-state public law school costs about half as much, on average, as a private school or a public school for out-of-state residents.” If you will not attend a national law school, why pay considerably more to attend a regional school if there is a state alternative?

Like Chalk Across a Blackboard

If, when you were growing up, your family always said “you should be a lawyer” or “you’ll make a great lawyer some day!”, what did it mean? It meant you were an argumentative, stubborn–and possibly obnoxious–pain in the butt. Not all lawyers fit that mold–I don’t, of course–but the popular conception of attorney-as-irritant finds constant reinforcement. Take these two stories: A Lawyer Bride Sues Her Florist (Wall Street Journal-Subscription Required) and At Firms With “No Jerks” Rules, Abusive Attorneys Need Not Apply. The first reports on New York litigator Elena Elbogen’s breach of contract suit against Posy Floral Design Studios for “substitut[ing] pastel pink and green hydrangeas for the dark rust and green hydrangeas that she had specified for the centerpieces . . . using wilted and/or browned flowers, leaving the event without filling half the centerpiece vases with water, and using dusty and dirty vases.” The bride and groom paid $27,435.14 for the flowers and are seeking $400,000 in damages. Stamos Arakos, co-owner of Posy Floral Design, responded “My father used to tell me, ‘Don’t deal with lawyers.’ Maybe he was right, God bless his soul.”

The “No Jerks” article discusses how companies are adopting hiring and firing practices to reduce the number of abusive bosses: “The emergence of these practices should be of particular interest to those working or hoping to work in the legal industry, where the only thing larger than the significant book of business may be the bearer’s ego.” For example, Perkins Coie began dealing directly with incidents of abuse a few years ago. “Associates who frequently yell at or mistreat secretaries damage their prospects of becoming partners” and Fortune magazine named the firm in its Top 100 Best Places to Work for five years in a row. This sounds great, and the article states firms are implementing these practices “regardless of how many hours the offenders bill or how much business they generate,” but I’m dubious about the last statement. I bet that a few million dollars in annual billings would still buys considerable latitude for jerky behavior in most firms.

Random Articles

As the blog train begins powering up for the fall, a few news articles have caught my wandering attention:

  • 100,000 Gone Since 2001 (Bob Herbert, The New York Times 14-Aug-07) 100,000 people have been murdered in the U.S. since 9/11. “No heightening of consciousness has accompanied this slaughter, which had nothing to do with terrorism. The news media and most politicians have hardly bothered to notice. At the same time that we’re diligently confiscating water and toothpaste from air travelers, we’re handing over guns and bullets by the trainload to yahoos bent on blowing others into eternity in armed robberies, drug-dealing, gang violence, domestic assaults and other criminal acts.”
  • A New York Times article about former Surgeon General Dr. Richard H. Carmona, recounting how the Bush administration muzzled Carmona and politicized the post, quotes Carmona as saying “I increasingly witnessed a government that was more and more using theology and ideology to drive its policies and its people — stem cells, abortion, Plan B, the war and many more . . . Our go-it-alone so-called cowboy diplomacy has in fact isolated us from the world more than ever in our history.” The story is consistent with this administration’s promotion of cronyism, political loyalty, and ideological purity over competence, expertise, and fact-based analysis.
  • A Grass Roots Effort to Grow Old at Home discusses the movement to foster aging in place (a term which always makes me think of “ripening”) by delivering social, medical, and support services to elders in their homes. I read the article to be certain it credits Beacon Hill Village for its leadership role in this movement; it does. The executive director of Beacon Hill Village is a good friend and I’m pleased to see this non-profit acknowledged for its pioneering efforts.
  • Last, Who Owns the Concept if No One Signs the Papers? discusses an issue that students raise frequently: how can I prevent others from copying my great idea? The quick-and-dirty answer is this: you cannot protect ideas. You can protect the particular manifestation or expression of an idea through a patent, copyright, or trade secret, whichever might apply. The article focuses on the dispute between Cameron and Tyler Winklevoss, founders of ConnectU, and Mark Zuckerberg, founder of Facebook. The Winklevoss twins engaged Zuckergerg’s services as a coder to work on ConnectU, their Harvard University-based social network site. They claim Zuckerberg copied their sites program code and business plan to start Facebook and want Facebook’s assets turned over to them. The Winklevoss twins never paid Zuckerberg for his services, promising him to pay him later if they made money, and apparently never asked him to sign a non-disclosure agreement. Jason Pontin, the article’s author, states “I suspect that Facebook would not exist had it not been for ConnectU” but nevertheless concludes that ConnectU does not have a case against Zuckerberg.

More Cause for Hopelessness

U.S. military involvement in World War II began on December 7, 1941 and ended on August 14, 1945, a period of 1,347 days in which Allied forces defeated the Axis forces of Germany, Japan, and Italy. President Bush’s “war on terror” began on September 11, 2001 and continues today, 2,135 days later and counting. This war has cost hundreds of thousands of lives and somewhere between $400-$500 billion and has polarized this country in a way unmatched since the era of the Vietnam War. What has it accomplished? The prosaic title of the threat assessment prepared by the National Counterterrorism Center says it all: Al-Qaida Better Positioned to Strike the West. Al-Qaida is thriving in Pakistan and, despite the time, money, and human cost, it has improved its financial, training, and communication resources. Pakistan, remember, has received billions of dollars in U.S. aid. Not a great return on our investment. The billions spent on intelligence and security produced a “gut feeling” in Homeland Security Secretary Michael Chertoff’s bowels that the United States faces an increased risk of terrorist attack this summer. This threat assessment does not even address how our disastrous Iraq venture has catalyzed creation of vehement anti-U.S. security threats.

The Undead

Like Cool Hand Luke rising from the ground each time Dragline knocked him on his ass or like the living dead from the George Romero movies, Allofmp3.com refuses to submit, popping up after each execution with an amnesiac’s disregard for its back story. See None of MP3.com, AllofMP3.com Lives Yet, and AllofMP3.com–Is That All You’ve Got? This story reports that Russia caused the site to be shut down “to end criticism from the United States that Russia was failing to clamp down on music and video piracy.” By the time the press ran the story Media Services, the company behind AllofMP3.com, had opened a new site named mp3Sparks.com that it claims is legal under Russian law. Since the arguments for the new site’s legality echo those used to support Allofmp3.com we can expect this saga to continue. Frustrating, I’m sure, for parties on both sides of the issues but a boon to a professor of Internet law, this story captures the nailing-a-blob-of-mercury nature of cross-border Internet regulation.

The 59th Street (Toll)Bridge Song

In the spring of 1967 Jimi Hendrix released Are You Experienced?, his first album, and The Beatles released Sgt. Pepper’s Lonely Hearts Club Band. My friend Rick bought Sgt. Pepper as soon as it was available and, incredibly excited by what he heard, called and played it for me over the telephone. I first heard “With a Little Help From My Friends”, “She’s Leaving Home,” and “A Day in the Life” on a spring afternoon while standing in my kitchen with a bakelite phone receiver pressed to my right ear. My first listening of Are You Experienced? came courtesy of another friend, who played it one Friday evening at full volume in his darkened bedroom. My hair stood on end at the opening chords of “Purple Haze.” I had never before heard music like that.

We experience music more immediately, more personally than any other form of popular culture. Movies and television required (until video-capable iPods and $1.99 episodes of Lost and The Office) that we sit and watch a screen. In my lifetime music has always been portable, first through car radios (my high-school car, a 1965 Plymouth Fury, had only AM radio which means I heard Mungo Jerry’s “In the Summertime” about 1,000 times in 1970 alone), then through the Sony Walkman and its progeny, which led to today’s ubiquitous MP3 players. Technology has allowed us to accompany our lives with a personal soundtrack. We all have music that is ours. 1967 was also the year of The Graduate,plastics,” and the birth of Dustin Hoffman’s career. I recall Dick Cavett asking Hoffman whether sudden fame had changed his life. Hoffman replied “It’s not like Mrs. Robinson plays when I go to the bathroom in the morning.” These days we can all have Mrs. Robinson–the Simon and Garfunkel original or the Lemonhead’s version–playing when we go to the bathroom in the morning.*

I’m thinking about this because of recent exposure to the inevitable boomer-retrospective articles and radio shows about the Summer of Love and the juxtaposition of two articles: Jason Fry’s “The Perils of Online Song Lyrics” in the 5/21 Wall Street Journal (subtitled “Yahoo’s New Lyrics Service Is Promising,But Why Can’t I Copy and Paste the Words?”) and Mark Helprin’s “A Great Idea Lives Forever. Shouldn’t Its Copyright?,” an op-ed piece in the 5/20 New York Times. Helprin argues that copyright law should protect creative works to the same extent that law generally protects rights in personal and real property. Congress can, Helprin asserts, circumvent (my word, not his) the Constitutional provision authorizing Congress to extend a monopoly to authors “for limited times,” by vitiating the meaning of “for limited times:” “Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw.” Helprin is a far-more skilled and practiced polemicist than me, but to my simple mind this expression of his argument falls off the rails before it leaves the station. In its entirety Article I, Section 8, Clause 8 of the Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” Congress’s power to enact copyright law must serve the purpose of promoting the progress of useful arts. This argument (in Eldred v Ashcroft) failed to convince the Supreme Court to overturn the Sonny Bono Copyright Term Extension Act, which extended the term to the life of the author plus 70 years, but the Eldred decision does not support the position that Congress can extend the term of copyright at will. Larry Lessig is articulating a more complete and scholarly refutation of Helprin’s argument.

The article about the Yahoo lyrics site explores the confluence of our appropriation of popular music for personal expression and the “propertization” of copyright. As Fry states “[s]ong lyrics are one of those things the Internet might have been made for . . .” Most of use have searched for song lyrics. The Archive of Misheard Lyrics at www.kissthisguy.com is a favorite site. Song lyrics are part of our aural wallpaper, a cultural touchstone, a form of shorthand, titles for the chapters of our lives (I’m in one titled “well . . . how did I get here?“), the raw material for wedding vows, and memory triggers. We hear a phrase in conversation that reminds us of a lyric that transports us to the time in our life associated with that song. (If reading that made you think of Patrick Swayze and Jennifer Grey, good.) Song lyrics are all that but, at the request of copyright holders, you can’t copy and paste lyrics from Yahoo!’s lyric site. According to Nicholas Firth, Chairman and CEO of BMG Music, Inc., a copied lyric is a lost sale–an idiotic comment that ignores the reality in which most of us live. If the choice is between paying a licensing fee to copy a lyric into a blog post and going without I’ll go without. Most people would say the same, even people old enough to remember Mungo Jerry’s “In the Summertime” who did not grow up with file-sharing. I won’t pay the copyright holder a trespassing fee to walk in my own memories.

* It must have been kismet that caused iTunes shuffle to play the S&G version of Mrs. Robinson as I was writing this paragraph.

PS: A student sent me the link to this video a few days ago. Titled “A Fair(y) Use Tale” it summarizes principles of copyright law using clips from Disney animations. Cute, obsessive, and worth a look, if just to wonder: how long did it take to put this together?

Hopper at the MFA

A few nights ago we went to the Edward Hopper exhibit at the Museum of Fine Arts. We loved it. His images are both visually and emotionally arresting. As the exhibit’s program states, he captures enigmatic moments in a story whose narrative is unknown to the viewer. You supply your own meaning. What relationships exist among the characters in Nighthawks? Does the painting portray individual loneliness or a place of refuge in a lonely city? What thoughts preoccupy the usherette in New York Movie? It’s an exhibit I could visit many times. I lingered over the composition of New York Restaurant (the linked image does not provide a viewing experience comparable to what I experienced). A hulking figure in a dark coat exits right, on the left a waitress with a bright white apron bends over a white-tableclothed table, and at the table in the center a woman, her back to the viewer, half obscures her dining companion who is bent over his meal. The V composition of light and dark elements centered on the diners is powerful, and evidence of Hopper’s technical skill. The show runs until August. I’m sure I’ll go again.

Two Schools of Thought

I wrote briefly recently about the Second Amendment, a post that prompted a spirited and articulate discussion. An article in yesterday’s New York Times provides fodder to continue that discussion. Written by Adam Liptak and titled A Liberal Case for Gun Rights Sways Judiciary, the article discusses what for liberals amounts to embracing the dark side–the individual rights view of the Second Amendment. There are two approaches to reading the Second Amendment, which reads “[a] well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The collectivist view, long embraced by liberal legal scholars, holds that the Second Amendment protects the right of states to maintain militias. The individual rights view championed by the National Rifle Association and other pro-gun (or anti-government) groups holds that the Second Amendment protects the right of individuals to own guns. What is new is that some influential liberal legal scholars–the Times article mentions Larry Tribe, Akhil Reed Amar, and Sanford Levinson–have embraced the individual rights view. In Levinson’s words “[t]he standard liberal position is that the Second Amendment is basically just read out of the Constitution.” Paraphrasing Levinson the article states “If only as a matter of consistency . . . liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment.” Law professor Carl Bogus criticizes this liberal apostasy as intellectually dishonest: “[c]ontrarian positions get play . . . Liberal professors supporting gun control draw yawns.”

I have no position on Second Amendment scholarship to throw into the ring. My interest is moved largely by the uncertainty in the law. My blog post and the discussion following generated a number of questions about why, at this point in our history, Second Amendment jurisprudence is so muddled. The lack of a clarifying Supreme Court ruling as to whether the collectivist or individual rights position embraces the controlling view is noteworthy. The Times article notes that the “Court has not decided a Second Amendment case since 1939,” a “somewhat cryptic” ruling cited since 1939 by both collectivists and individual-right-ists to support their interpretation. It is a curious state of affairs. The Second Amendment is the black sheep of the Bill of Rights, the provision over which liberals and conservatives execute a do-si-do and change their partners.

The case that brought this doctrinal switcheroo to the fore is Parker v District of Columbia, a March 9, 2007 decision of the the United States Court of Appeals for the District of Columbia Circuit (478 F.3d 380) striking down a District law that banned residents from keeping handguns in their homes as a violation of the Second Amendment:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

478 F.3d 380, 395. The court’s opinion cites Tribe’s and Levinson’s respective work in support of its ruling. If the Supreme Court hears Parker v District of Columbia the muddle may disappear.