Proposed Q&A site for lawyers, law librarians, law students, and others searching for primary sources, other than at the “big two”.

Stack Exchange

In older Supreme Court dissenting opinions, it’s common to read “I respectfully dissent”, or “with respect, I dissent.” But what about today’s justices? Some seem to relish writing dissents which are indistinguishable from Internet flames. Here’s a quick little bit of research:

How often do the current and retired Supreme Court justices use the above phrases in their dissents?

Methods

LexisNexis on 11/11/2010. Two searches for each justice, e.g.:
DISSENTBY(thomas)
DISSENTBY(thomas) and DISSENT(respect! w/s dissent)

This analysis is fairly superficial; something I did while procrastinating on my actual work. It should, though, provide a little food for thought.

“No, you can’t keep that coyote you saw in Powell Butte.  And if you want a pet, there are plenty of Labs waiting to be adopted at the Humane Society.”

So I conclude that if there are overly dangerous dog breeds, then it’s reasonable to restrict them in the same way.

A cute but questionable “IQ Test”

But there are many people and groups who advocate against BSL — and in favor of their being able to keep and sell these breeds.  Ok, fair enough.  And one of them, “Paul Glassner SF/SPCA”, has written a breed ban IQ test that begins,

1. If you were the sheriff in your town and you learned that Toyotas were disproportionally involved in more auto accidents than any other model, would you:
(a) ban Toyotas and confiscate the Toyota of anyone caught driving one
(b) arrest the drivers responsible for those accidents?

And that’s it — those are the only choices.  The rest of the test builds on this question and makes the points one might guess it would.  And so I found the “test” pretty shoddy—essentially propaganda.  Because what about,

(c) look at car ownership to see if a disproportionate number of people own Toyotas as well.  If not, investigate the Toyotas to see if they’re flawed by design.

…which then leads to,

(d) potentially all of the above.

Because that’s what we do in the real world:  If a car type is too dangerous by design, then we ban it.  If a model’s occupants would die from a single low-speed collision, we ban it.  Ditto if a model’s brakes are fundamentally flawed.

The car metaphor works in favor of BSL

Now that I think about it, this does apply to dangerous dogs:  The overly dangerous dog is one who’s likely to bite more often (a car that causes more accidents), and when it does bite, more often maims or kills its victim (a car that does the same to its occupants).  In other words, the “overly dangerous dog” is one that’d be responsible for higher incidence and mortality rates. If there were a car like this — and there have been — you can bet we’d take action against them.

But I come to the opposite conclusions by calmly looking at the facts:

• The Court’s conservative majority reached its decision by creating law in the form of a new standard — a “strong basis in evidence” of the success of a disparate effect lawsuit is now required.Sotomayor shouldn’t have done the same (and didn’t) as an appellate judge, whose role is to interpret, not create law.
  
• The Court’s reasoning was based on a reading of the facts that was different from that of the trial court.  Several long and conflicting recitations of the facts caused the decision to reach ~90 pages.  In other words, the case was reviewed “de novo”. Sotomayor shouldn’t have done the same (and didn’t) as an appellate judge, who is required to give deference to the trial court’s findings of fact.
  
• The Court reached a 5-4 split decision along the supposed political lines: 4 conservatives, 4 liberals, and Justice Kennedy in the middle. Attempting to label Sotomayor’s decision to uphold the district court’s decision as radical or racist is simply disingenuous.

(“DRM-free” has a mushy definition, but it basically refers to digital media files {e.g., mp3s} that don’t have copy-protection or purchase information indelibly encoded into them.  For example, anything that you record yourself, on your own computer, will be DRM-free.  In contrast, most songs purchased in the past from iTunes do have DRM, which ensure that only the purchaser can listen to them.)

But what I can’t figure out is, why do people want DRM-free so badly?

After all, in the case of iTunes’ DRM-encoded files, I find that as an owner, I have more than enough flexibility to excercise the rights that I’ve been licensed; such as viewing files on the various devices and computers I own, and making backups for myself.  Here then, are my best guesses why people want DRM-free:

1. So that they can enjoy their media on Linux.  This is why I’d like DRM-free files, but I can’t imagine this accounts for most others.
2. (In the case of iTunes) So that the media files can be viewed on media players besides iPods.  But this strikes me as unlikely as well; there are other sources of music besides iTunes.
3. (Abstracting #1 and #2 together) To decouple the media from the device required to view it.  That’s a great goal, but is this what’s behind the wave of desire for DRM-free content?
4. Something else that I’ve forgotten.  Whoops!  Waited too long to write this post.

So what is it?  Can somebody drop me a line and let me know why they prefer DRM-free media

The Robb Report, of course, is “The Global Luxury Source”.  They’re a reliable destination for Rolls-Royce reviews.  We can all probably agree that my blog and the Robb Report travel in different circles.

I’ve known about the magazine for years, most likely from seeing it in doctors’ waiting rooms.  And when choosing this name for my blog, one of my reasons was the humor arising from the contrast of the two Robb Reports, for those who are familiar with the senior mark holder.

But I wonder, (1) is what I’m doing ethical? And (2) am I infringing on Robb Report’s mark?

I’ll think about these more after this never-ending final exam period is over.

Randy Cohen, in The Ethicist, says “It is not.” A related issue is, what criteria can doctors use to choose their patients? He sums up by writing, “The right to our day in court should be among the inviolable.” The article is good food for thought:

New York Times Magazine / The Ethicist: Doctor, Bully

I once prosecuted a murder case against a pro se defendant. His first, counseled, conviction was reversed because the judge wouldn’t let him represent himself and I handled the retrial.

The result of the trial I prosecuted him in was the same — guilty. I did not think he did a bad job, given the situation, although a lawyer would have done better for him obviously. There were numerous eyewitnesses along with a confession he made, and testimony from his first trial, about his having shot several people, so it was hardly a whodunit. . . .

The biggest mistakes he made were not technical legal ones; they were mistakes in knowing what was important in the trial. The shooting arose out of some personal spat with his ex and her new boyfriend. He kept wanting to explore details of the relationships; in his mind, he was showing he was “right” or more moral in various relationship disputes, but to the jurors he was either wasting their time on irrelevant matters, or worse, proving that these disputes added up to enough reason for him to want to kill someone. That misdirected focus is why even an educated person, including a lawyer, should usually not represent themselves in a trial.

http://volokh.com/posts/1206745056.shtml

When a lawyer testifies as an expert witness on a party’s behalf, is an attorney-client relationship created? [...] The lawyer would have to serve as an objective witness and even provide opinions adverse to the party that calls her “if frankness so dictates,” the panel said.

Further, the lawyer as an expert would be subject to deposition by the opposing party, where any communications between the expert, the retaining law firm, and the client would generally be discoverable.

The panel decides no, there is no attorney-client relationship created, but:

…a lawyer serving as an expert witness remains subject to the rules that govern lawyers generally. The lawyer could not, for example, testify falsely. Further, she could not take on a new client in a matter adverse to the party for whom she is serving as an expert.

(Emphasis added.)