Barely Legally

Confessions of a Moot Court Bailiff

The Anonymous Lawyer on Layoffs

In case you haven’t read it by now, the Wall Street Journal’s superb Law Blog featured the Anonymous Lawyer’s take on the lean times facing BigLaw.

We’d also like to take this opportunity to remind you about our “Green Energy” program. The environment has always been something we’ve intended to care about, and now we’ve decided to finally make the bold claims in our recruiting materials a reality. In that spirit—and having no relationship at all to any sort of cash flow difficulties you may have heard we are facing (not true)—beginning this Friday, our building will no longer have electricity.

Read the rest (unless you just got deferred to 2016) here.

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All's Well that Orwells

I confess that I own a copy of George Orwell’s 1984. I’ve read it, and enjoyed it. I will also confess to going through a bit of an anti-authoritarian phase in my youth; my hair was shaggy, I wore flannel shirts with holes in them, and I referred not infrequently to a vague consortium of evildoers known collectively as “The Man.” But here’s the important thing: I learned more about the world, and subsequently stopped spouting insipid nonsense. Some people have yet to do that.

But first, Dear Reader, let me tell you a story. Amazon sells a device called the Kindle. The Kindle is like an iPod, but instead of playing music, it displays books. (In point of fact, the Kindle also can play music, but this ubiquitous feature is built into practically any consumer electronics you can think of today.) Kindle owners put books on their device by connecting it to a computer and either (1) purchasing books from Amazon directly, or (2) “finding” the full text of books somewhere else.

Given that many works from as far back as 1923 are still under copyright, “finding” the full text of books is tricky. The wonderful Project Guttenberg makes books that have lapsed into the public domain available for download at no cost. But if you’re looking for copyrighted (read as “most”) books, you’re in a bit of a pickle.

The Options

Your first option is to buy from Amazon. I’m told it’s quick, and you can purchase books using the Kindle’s wireless modem anywhere you can get a cell phone signal. More on this later.

Your second option is to bootleg books. While downloading movies and music makes headlines, there are numerous groups that specialize in pirating books. The Harry Potter books were notably pirated weeks before they came out, and the popular Twilight series of books are similarly the subject of piracy. The market forces that drive book piracy are a little more complicated than the ones behind movies and books.

Initially, you may ask why anyone would bother to pirate a book when there are these things called libraries that give books away, let you read them, and charge you a nickel if you’re a slow reader. Wildly popular book series have rabid (young) fans that all need to read this book, like, today, ohmigod. Libraries aren’t exactly rolling in money at the moment. Why should they buy a hundred copies of Harry Potter and the Inane Plot Twist today, when in a month, five copies will suffice? Libraries don’t necessarily serve the needs of masses of rabid fans for wildly popular books.

What does that even mean

And piracy means different things to different people. Every day as I walk to work, I pass by a table of DVDs for sale for five dollars each. These are obviously pirated films, many of which are actually still in theaters. Bootleg copies of movies abound on the subway, even if you’re nowhere near Chinatown. However, the bootleg book market isn’t quite as confrontational.

Again, when libraries fail to serve the market, Harry Potter pirates will pop up on street corners in major metropolitan areas, but the fact is that book piracy is almost entirely confined to digital distribution on the internet, and for good reason. Books are big: while blank CDs and DVDs are a few pennies, buying reams of paper and ink and binding the books is significantly more labor (and wallet) intensive.

sidebar: You’ll note that books are distributed in analog format (paper), while music and movies have shifted to digital formats (on physical media) to cut costs. However, the reason that record companies and film distributors prefer to distribute their products digitally - effortless and instantaneous duplication - is one of the many reasons that piracy is as widespread as it is among music and movies.

Pirates of the HTTP’s

So what does this all mean? I submit that book piracy is mostly done on the internet, and mostly for books for which the library’s “come and get it for free” offer fails. Wildly popular books among people who are technologically sophisticated - often the young and the nerdy - seem to be the most pirated: Twilight and Harry Potter.

Remember the Kindle? If you’re not a young person desperate to find out what happens in Harry Potter and the Magical Prom Date with a Were-Cheerleader, and you’re not interested in the complete works of John Locke or other fine public domain texts, piracy isn’t likely satisfy your demands any more than the public domain will.

So you toss some dollars Amazon’s way, and you download 1984: a nice, heartwarming tale of fascist autocracy. A few weeks later, Amazon finds out that the company that started selling 1984 didn’t actually own the rights to it. Oops. While this seems like something that would behoove Amazon to check out before selling something, who am I to argue with runaway success?

Amazon subsequently removes the offending book from its online marketplace, and deletes the book from its customers’ Kindles. The first half is undeniably a good idea, and the second half makes us feel a little squeamish because we as a society don’t really pay attention to the difference between a license and a purchase. One is a running contract, and the other is a change of possession. More on this in another essay.

But the fact that one of the books in question is 1984 led swiftly to the cries of Big Brother, hackneyed Animal Farm references, and a facepalm-worthy amount of e-outrage. Dear Reader, I’m taking a stand.

This is (barely) a stand

Everyone shut up. This is not Big Brother, it’s Big Bother at best. The fascists in Orwell’s book were autocratic government bureaucrats that monitored their citizens, lied to them, and controlled as many aspects of their lives as possible.

Amazon is not the government. They only know what you voluntarily tell them (name, age, address, favorite movies, credit card number, phone number), and there is no law requiring you to tell them a damn thing. Stop crying Big Brother every time someone with more money does something you don’t like.

Amazon’s jackbooted thugs haven’t kicked in your doors to rip your children from your arms. Amazon did something catastrophically stupid by selling a book it didn’t have the rights to sell. (What idiot said piracy was only for the young Harry Potter fan?) As Amazon had the ability to remove the offending book from Kindles, one of their lawyers probably pointed out that Amazon could be guilty of copyright infringement if they didn’t. Amazon put themselves in a lousy spot and jumped ship as swiftly and clumsily as possible.

What we have here is a failure to communicate.

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Elementally, Dear Watson

Upon reflecting on my essay on the latest developments in the Lori Drew trial, I fear I have made JNOVs sound terrifying. Dear Reader, I assure you that the judicial system is not inherently broken because judges have an apparently final say in any trial. Of course, there is always the appeals process, which is but a small consolation (there seem to be many in the judicial system) for someone who “wins” a trial only to have a judge decide the opposite way. But the important thing to understand about JNOVs concerns the difference between issues of fact and issues of law.

Law students read appeals almost exclusively, in no small part because nearly every trial is focused around determining what actually happened: what did Billy say? What did Billy do? What did Billy intend? (That peculiar sound you hear is the sound of ten thousand philosophers at ten thousand typewriters, one of whom will accidentally theorize about the collected works of The Bard when given a large enough graduate student stipend.) The appeals process focuses on the proper construction and application of laws, and in some cases, on the Constitutionality of the laws themselves.

Take a simple law from New York’s Penal Code: Assault in the Third Degree (120.00):

A person is guilty of assault in the third degree when:

  1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
  2. He recklessly causes physical injury to another person; or
  3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

Assault in the third degree is a class A misdemeanor.

Let’s just focus on the first variety of Assault in the Third Degree. There are a few elements to this:

  • intent to cause
  • physical injury
  • to another person
  • [actually] causes
  • such injury
  • to such person
  • or a third person

Whether or not Billy “intended to cause” is an issue of fact. Did Billy, in fact, have that intent? That’s a question for the jury. Was Billy’s intent to cause a “physical” injury? Jury question. Is the injured person “another person?” (Easy) jury question. So on and so forth.

Issues of law are the kind that laypeople roll their eyes at. If Billy scared someone so badly that they had a heart attack, is that a physical injury? When the law says “causes,” what does it mean? Billy caused someone to be scared, which is a far cry from stabbing someone, or pushing someone down a flight of stairs. Further, although Billy may have intended to scare this person, does the law transfer his intent to scare over to an intent to cause a heart attack? These are all issues that are hopelessly absurd in my elementary hypothetical situation, which illustrates why law professors spend more time thinking up exam questions than I spend on blog posts.

So when a judge overrules a jury, and issues a verdict notwithstanding the jury, she is not deciding issues of fact. The judge is not permitted to decide that a witness is lying, or that there’s simply no way Billy’s alibi could be true. (As always in our legal system, there are exceptions for outrageously inept juries.) But after the jury decides what the basic facts are, and then proceeds to misapply those facts to the law, the judge can enter a JNOV.

In my horrible hypothetical, if the jury were to find that Billy did not actually cause the injury to the third person (an element in any of the three varieties of Assault in the Third Degree), but nonetheless convicted him, the judge can overrule the jury because at that point, the issue is a matter of law. The jury has done its job in finding what the basic facts of the case are, but has failed to properly apply the law. In this contingency, the judge may step in and assure that a convoluted legal process does not lead to an improper decision.

Published in Legal Theory on

Who's the Man? Wu's the Man.

A while back, I wrote about Lori Drew. She’s the woman who was indicted for violating a federal anti-hacking statute prohibiting the “unauthorized access” of MySpace’s computers by lying about her age and gender when she signed up for an account. Of course, tons of people do that on a daily basis; Ms. Drew was indicted not primarily on the basis of her dishonesty, but on what she did with her account. Under the guise of a teenage boy, Ms. Drew harassed 13 year old Megan Meier until the teenager committed suicide.

sidebar: I feel the need to point out how deeply I believe that what Ms. Drew did was despicable. Children bullying children is an inevitability of a child’s false steps in developing interpersonal skills. Adults bullying children is an unacceptable and unforgivable failure as a human being.

Ms. Drew was tried and convicted for unauthorized access of the MySpace computer system. She escaped conviction for the felonies, but was convicted of the corresponding misdemeanors. Threat Level seemed to focus on the fact that Ms. Drew wasn’t a felon, but being convicted of three misdemeanors still means you can go to prison for three years. Small comfort, then, that you’re not a felon. (N.B. - Contrary to the popular misconception, being convicted of a felony does not automatically disqualify a person from voting.)

The big news is that the presiding judge, the Hon. George Wu, is apparently ready to toss out the jury’s conviction of Ms. Drew, and will dismiss the case entirely. Judge Wu has expressed concern that the prosecutor’s claim (breach of terms of service constitutes a federal crime) is misguided, and that lying to MySpace should be a breach of contract rather than a violation of a federal anti-hacking statute. From the article:

“Is a misdemeanor committed by the conduct which is done every single day by millions and millions of people?” Wu asked. “If these people do read [the terms of service] and still say they’re 40 when they are 45, is that a misdemeanor?”

Frankly, I’m relieved to hear that the prosecutor’s tactic isn’t going to work. We’re all appalled by Ms. Drew’s actions. But let’s all recognize, along with Judge Wu, that a federal anti-hacking statute is not the proper avenue to punish people like Ms. Drew. As every law professor everywhere has always said, “bad facts make for bad law.” Let’s not torture the meaning of a law just to make sure that someone gets their comeuppance. If you start stretching the meaning of certain terms for these heart-wrenching cases, you run the risk of the laws being misapplied in other cases. None of us think the government needs (or should have) the power to throw us in jail for lying about our age on MySpace, or our favorite book on Facebook. I won’t rehash this.

However, a number of sources are being a little sloppy with their language, as is often the case with laypeople and 1Ls discussing legal technicalities. Judge Wu isn’t overruling the jury’s verdict: he’s dismissing the case because the prosecutor didn’t choose the right law to indict the defendant with. This is the same thing that would have happened had the prosecutor charged Ms. Drew with reckless driving, or Ms. Drew’s dog with unauthorized access of a computer system. Granted, the prosecutor was a lot closer on this matter, but the point stands. I applaud Judge Wu’s decision, and I’m in some good company.

A federal judge does have the power to overrule a jury and declare a defendant innocent or guilty, however. What a few commentators have conflated with dismissing the case is entering a judgement non obstante veredicto, abbreviated as JNOV. This translates to “judgement notwithstanding the verdict,” and it might seem bizarre for a judge to have this kind of power over the result of a trial, but it’s restricted to the much more mundane matters of law, and not the issues of fact.

Dismissing the case is different from overruling a jury’s verdict with a JNOV, as the latter simply states that the jury improperly applied the law, while the former signals a refusal to even allow a jury to apply this law to these facts. Again, think if Ms. Drew had been charged with reckless driving: an overwrought example, but a charge of reckless driving would have been dismissed, as well.

Regardless, I’m fairly certain we haven’t seen the last of the litigation in this case.

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Old Lawyers Don't Die...

Having polished off a very engrossing biography of Alexander Hamilton, I have begun to read the biography of another famous American thinker, writer, and jurist: Judge Learned Hand. The first thing I found out is that his name wasn’t actually Learned, but Billings. Had his name been Billable, I guess he never would have made it to the bench. (Please, folks, tip your waitress!)

So in 1907, Learned Hand is considering leaving a big law firm on Wall Street in hopes of becoming a judge. His father-in-law, aware of how poorly judges are paid compared to high-powered attorneys at law, attempts to dissuade the young Hand. When Hand makes clear that he intends to be a judge, his father-in-law finally relents, promising to support Mr. and Mrs. Hand, even after his death. He writes:

“It’s up to me to add ultimately to the family store when my life’s action has been dismissed with costs…”

See? Old lawyers don’t die, they just get their motions denied, and are remanded for further proceedings in a higher court.

Published in Legal Theory on

Class Elections

The problem with accusing others of overachieving is that you run the risk of sounding like (1) a condescending bastard and/or (2) an underachieving lay-about. I mean, I’m in law school, and I’m working my ass off, so I’m fairly certain I’m not a great example of the second. But I’m probably the former.

I don’t mind saying it: I think student government is silly. It’s an educational exercise in the same capacity as a Model United Nations, except without the accompanying geography lessons. I’m heading into my last year of law school, and I’m still expected to pretend that student elections have more to do with leadership ability and less to do with how many references to “Borat” one can cram onto a campaign poster. It smacks of little more than a popularity contest, with the grand prize being another line on your résumé.

Dear Reader, if you’re presently crying foul because all elections are, at base, popularity contests: you’re correct. But let’s distinguish between the popularity of a candidate’s ideas and the popularity of the movie that the candidate associates himself with. While a standard sheet of A4 paper probably lacks sufficient room to convey your vision about meeting the political challenges facing your law school class, there is probably just enough room to cram “I come from Kazakhstan!” in 72 point Comic Sans.

Additionally, there is more solace to be had in the fact that there really aren’t any political challenges to be met by a student government. To be certain, administering a school is a difficult task, and takes years of experience in managing a team of hundreds of faculty, coordinating various departments, and other feats of academic adroitness that I can’t even imagine. Luckily, the school has people who have been specifically trained and hired for just such an occasion: school administrators.

The student government is not wholly without task, however. Even the most hardened micromanagers among school administrators can see the value of giving the students some autonomy. Let the students handle the decision about what kind of pizza the cafeteria should serve on Fridays, who should be in charge of painting the banners for the pep rally, and what the playlist should be for the homecoming dance. (Subject to the administrators’ approval, of course; kids these days listen to the most vulgar things.) It’ll make them feel like they’re all grown up.

And now that we’re in law school, I’m sure the student government has been charged with resolving dilemmas of even greater importance. There are fundraisers to be held, and charities to support, and even a law school prom to organize.

sidebar: Yes, law schools have proms. Really. I’m not making that up.

I mean, I suppose it all shows an interest in those fabled extracurricular activities that we’re all told employers care so much about. And student government likely falls within the definition of the word “extracurricular,” as it’s not part of your classroom instruction. For even more employer appeal bonus points, a role in student government could demonstrate an interest in taking charge and managing a team. That would come in handy if your future law firm is considering having a bake sale. (Insert your favorite Jay Leno open-mic night joke about how “it’s a recession, folks!” here)

My rambling mockery of student government was brought on, Dear Reader, by the fact that not one but two students running for student government positions brought cupcakes to give out on election day. Cupcakes. Yes. Like in that movie where Matthew Broderick is a pedophile teacher.

For the record, I’m not hating on the players. I’m hating on the game. (See Marrow v. Warner Music Group) If you’re mortgaging your future to be able to afford law school, the only rational decision is to squeeze every drop of life experience out of it before you’re flung out into the real world to hang your shingle.

But boy, the game is silly.

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