Those nasty cigarette warning labels aren’t coming to a pack of smokes near you, after all.
Best News for Smokers of the Day
– November 7, 2011
law Archive
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Bestest Living Ex-Justice (JP Stevens) Reviews the American Criminal Justice System
– October 24, 2011
…via a review of The Collapse of American Criminal Justice by William J. Stuntz. Sample:
Rather than focus on particular criminal laws, the book emphasizes the importance of the parts that different decision-makers play in the administration of criminal justice. Stuntz laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street.
Delves into the history of race and criminal justice in the US, tracing Stuntz’ historical narrative. Interesting stuff.
Particularly interesting: Stevens takes up Stuntz critical comparison of Prohibition with the War on Drugs:
While “the law of Prohibition may have been foolish,” it was also far less severe than the modern war against drugs. It did not prohibit the mere possession or consumption of alcoholic beverages, only their manufacture, sale, and transport; it exempted use in private homes and service to “bona fide guests”; and doctors were expressly permitted to prescribe the use of alcoholic drinks for therapeutic purposes. Today prison sentences are imposed for simple possession of marijuana and a long list of other controlled substances, and federal law (as upheld by the Court in a 2005 opinion that I wrote, Gonzales v. Raich) even bars possession of home-grown marijuana prescribed to combat the nausea that attends most cancer treatments.
Stuntz describes some harms of alcohol consumption and criticizes Prohibition, but he does not address facts about Prohibition’s enforcement costs or the consequences of its repeal. Those consequences obviously included the replacement of significant litigation and imprisonment costs with generous tax revenues, and expansion of profitable commerce in the production and marketing of alcoholic beverages. On the other hand, as Stuntz’s own reasoning suggests, those consequences also likely included an increase in alcohol consumption, which continues to have serious adverse social effects today.
Such a discussion of the pluses and minuses of the repeal of Prohibition might have provided information relevant to a debate on the wisdom of current drug enforcement policies. As Stuntz mentions, the absence of developed debate among present-day political leaders about drug policies is striking in light of the openness of the debate among political leaders in the 1920s and early 1930s—such as Al Smith, the Democratic presidential candidate in 1928—about the wisdom of prohibiting alcohol. In short, while Stuntz’s discussion of Prohibition is interesting and informative, it omits a potentially valuable assessment of how the lessons from Prohibition’s repeal might bear upon, and inform political debate about, the current war on drugs.
I bolded the parenthetical because I think its a funny contrast to the faith Stevens goes on in the same paragraph to express that there is a serious political debate to “bear upon, and inform.” Leaving Stuntz off the table, there’s plenty out there to inform just such a debate were it to start existing. Not least, the recent Canadian Supreme Court decision regarding InSite (a Vancouver safe-injection clinic)’s exemption from enforcement of criminal drug possession laws and the mountain of sociological, criminological, and medical research that was drawn upon both in the decision and in the clinic’s legal team’s factum, or the research that’s been done in Portugal studying the social, criminal and medical consequences of their decision in the early aughts to decriminalize all narcotics (e.g. Greenwald’s Cato report).
It is striking that there isn’t a debate to contribute to, but it’s a problem of democracy, not of lack of potential content and reasoning. On one side anyway.
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The First-Sale Doctrine, Copyright, and My Livelihood
– September 19, 2011
The other day I wrote some thing about hosting a book sale, hit publish, and moved on with my life. At some point shortly thereafter, Excellent Blogger Ben (who is not quite as excellent as Excellent Blogger Trevor, who recently earned himself a link from Andrew Sullivan, because his minions read us and adore us) chimed in on Ye Olde Gchat, saying, effectively, “Yo, dude. You should change that Marc guy’s name to something else so he doesn’t get in trouble.”
“Why would he get in trouble?” I queried.
“Because he gave you all those as-of-yet-unpublished books,” Excellent Blogger Ben replied.
I changed the name to Jack. But Jack’s not his real name. His real name is Marc. Marc came by work a few days after the aforementioned book sale to hang out, because he’s kind of lonely, and we chatted and I smoked cigarettes, and at one point the discussion veered to the uncorrected proofs he’d given me and that I’d been trying to sell. “But, I can’t really list those online, can I?” I said. “They say right on them that they’re not for sale.”
To this Marc smiled and said, “I could write ‘NOT FOR RESALE’ on my sneakers, but that wouldn’t have any legal impact. You could still buy them.” He went on. “The publishing houses give these things out for free — these galleys, these uncorrected proofs. They send them out to reviewers hoping someone will read it, write about it, and give it thousands and thousands of dollars worth of free advertising. When they say it’s not for sale, they’re just hoping that those words will scare you enough that you never think about selling it.”
“So I can sell them?”
“Sure,” Marc said. “But Amazon won’t let you. They’d just be pissing off the publishers. Why would they want to do that?”
Today, Yglesias points me to the case law to back it up. Turns out, way back in 1908 Bobbs-Merrill Co. v.. Straus established the legal precedent that had long been the common law understanding of copyright, and that the Copyright Act of 1976 codified the the Supreme Court’s ruling into law. As Yglesias puts it, with regard to movie rentals:
By modern standards, DVD rentals ought to be illegal. After all, the prevailing wisdom in the United States is that copying a file you don’t have permission to copy is a form of stealing. It deserves to be called “stealing,” according to the prevailing wisdom, because even though nobody has lost a physical object a rights-holder has been deprived of potential licensing fees. When you rent a DVD — or, heaven forbid, borrow one from a friend — you are depriving the rights-holder of potential licensing fees every bit as much as if you copied a digital file. Fortunately for Redbox, though, we have a longstanding legal doctrine in this country called the “First Sale Doctrine,” which says that once you buy a physical object, you’re entitled to do what you want with it. Thus, back in the heyday of the VCR, movie studios faced a stark choice. Either don’t make a videotape of your movie, or else accept that video rental stores can buy your tapes and rent them out to customers.
This phenomenon has, of course, been somewhat complicated since the advent of the digital age. The ability to freely share files with large groups of people well away from the origin of the “first sale” (if there was ever a sale in the first place) raises a whole new set of questions. Thorny ones. But that’s not what we’re talking about. We’re talking about books. Because I said we are, that’s why. Because the digital stuff does not pertain to this particular case. Because it’s not all about the Internet all the time, man! There’s other things going on! Even on the Internet there are other things!
“So I guess I’ve taught you pretty much everything I know,” Marc says, a bit ruefully.
“Not really,” I reply. “You might have told me a lot, but I don’t think I took in the half of it.”
He smiles, turns around, starts heading towards his minivan. “Well, good luck.”
“You’re always welcome back, Marc. It’s nice to have the company.”
Marc stops, turns his head so that one eye is facing mine (the weird eye, the one that sometimes spasms ), and says, “Ah, yeah. Thanks. I’m out of the book business, though,” then he turns back around and sort-of-staggers, sort-of-ambles to his car.
I tell him to take it easy, walk down to my basement office, and think about lunch. Marc does God knows what. Whatever he does. He drives to get more books, or to hand out my boss’s card to strangers, or to the farmer’s market, or to the Dollar Store. It doesn’t much matter, because he’ll be back. He’s always back. He doesn’t know how to do anything other than books.
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Governor Blagojevich Could Be Sentenced to 300 Years in Prison
– June 28, 2011
Though he won’t be, obviously. However, the fact that “federal sentencing guidelines are sure to significantly reduce his time behind bars” after a jury of his peers found Blago guilty [ed's note: I actually misspelled that as "quilty" the first time around, but then realized he wasn't a roll of Bounty paper towels] on 17 of 20 counts of corruption doesn’t do much to improve my faith in the efficacy of our justice system.
Seriously, 300 years? Even if he gets closer to 10 like most experts are predicting, the fact that the Honorable Judge Hypothetical could potentially demand the harshest sentence available in order to make some sort of example out of the ex-governor is rather absurd.
But Trevor, you shrilly interrupt. Didn’t you just say that there’s no way he’ll actually get 300 years? Ten sounds pretty reasonable to me, so where’s the miscarriage of justice?
First of all, I handsomely respond, “miscarriage of justice” is a slight exaggeration. I consider it more of a first-trimester abortion of justice. But that abortion lies in the fact that it’s even possible for a white-collar criminal whose crimes had limited long-term repercussions on the people around him and country he served to be sentenced to 300 years in prison in the first place.
Don’t think it couldn’t happen, either, because this isn’t some arbitrarily sensationalist position I’ve adopted in the face of all opposing evidence. Look at Steven Jay Russell, the genius con man portrayed by Jim Carrey in the 2009 film I Love You Phillip Morris who is currently 11 years into an actual 144-year sentence. Kinda gross, right? (Literally, I mean.)
Sure, Russell undoubtedly deserved to go to prison for his original crime of insurance fraud and the subsequent $800,000 he embezzled from an insurance company while on parole. And yes, he deserves an extended sentence for escaping from custody multiple times (always on a Friday the 13th, incidentally — which, c’mon, pretty bad ass, right?). But to be sentenced to 12 dozen years in a federal penitentiary — the majority of which he’s forced to spend (at least for now) in solitary confinement… Well, to quote Roger Ebert, that
seems a bit much for a man who never killed anyone and stole a lot less money than the officers of Enron.
And how about Bernie Madoff? More than 70 years old and on the verge of beginning a 150-year prison sentence. Okay, so he Ponzi’d his clients out of billions of dollars over the years, bringing not just various individuals but whole companies to their knees in the end, but the fact is, the damage Madoff caused is negligible when compared to the financial crisis as a whole — a crisis which led to the worldwide conflagration of trillions of dollars in total wealth but which has yet to result in the prosecution of a single high-profile participant in the still-ongoing global clusterfuck.
So say what you will about Rod the Bod, but at least acknowledge the back-asswardness of a system that could theoretically put a preening narcissist behind bars for 30 decades for “shaking down a children’s hospital, trying to sell a Senate seat and demanding cash campaign contributions in advance before signing a bill” and yet not lock up a single relevant Wall Street banker or broker (not that those distinctions meant much two years ago) for their role in the recession.
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Even more legally sanctioned public nudity? Sign me up!
– June 14, 2011
Yesterday we learned that both guys and dolls have been allowed to appear shirtless in New York’s public spaces without fear of legal repercussions for at least two decades.
Today we learned that said Nude Yorkers’ like-minded Teutonic peers may enjoy an even freer romp with nothing more than their backpacks on “Germany’s first hiking trail for nudists.” The trail has proven so popular that even the Swiss are considering finally taking a stance on the issue.
According to an unofficial spokesman for the project (who, coincidentally, is not named Puistola Grottenpösch):
A sanctioned trail would give many people an opportunity to experience the “bodily freedom” that only hiking in the nude offers — an experience that “fills you with happiness.”
That said, Time probably could have worked a little harder in procuring their accompanying photo, since I don’t think this one’s doing much to positively promote the endeavor…
Go Gravity!
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Question for Lawyer Friends
– March 23, 2011
Short preamble: I just stumbled onto this video through Reddit (she is a former BP worker and was involved in the Gulf spill cleanup last year)-
Devastating.
In this related blog post, the following is claimed:
Doctors and hospitals refuse to acknowledge this with anyone there who’s sick. And there are apparently tens of thousands now.
‘This’ presumably refers to the connection between these symptoms and the oil spill.
My question is this: Could fear of BP litigation be what’s keeping health professionals from drawing this parallel?
That seems fairly likely to me as a layman, but if anyone knows more about this, I’d be really curious. Is this a credible fear?
***
Federal researchers have announced the beginning of a wide-ranging study into the possible health effects of the BP oil spill on cleanup workers.
The study, which will be led by the National Institute of Environmental Health Sciences, will try to follow 20,000 workers for the next 10 years, making it the largest study ever into the health effects of an oil spill.
The first 1,000 invitations to take part in the study were sent out on Monday, said Dale Sandler, chief of the epidemiology branch of the institute. The goal, she said, is to eventually extend invitations to around 100,000 people who were involved in the cleanup, most of whom live in Louisiana, Mississippi, Alabama or Florida.
The study was announced on March 1st.
But, short of the study, it seems to me like serious journalistic investigation is called for here. I nominate the New Yorker. I’d do it, but I don’t really have any money.
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Barry Bonds is finally paying for destroying our global economy
– March 22, 2011
In case you missed it, the Barry Bonds perjury trial started earlier today (much earlier, at this point). All I can say is, thank God. Now we can finally bring that bastard to justice for misleadin’ us about how he got all ripped so he could hit balls real good with a stick and crap. Totally worth the $55 million that we’ve spent so far.
So let’s see: that’s one athlete who already went to jail (Marion Jones), one currently on trial (Bonds), and one coming to trial April 5 (Roger Clemens) for rockin’ some ‘roids and then lying about it to a grand jury. Not bad, right? Now how many bankers, brokers, insurance executives, and financial regulators have we put on trial for their role in the global economic meltdown that nearly turned us all Mad Max 4: Beyond Thunder-boned? Uhhhh…errrr…….does Madoff count? He does? Oh good — then one!
America: prioritizing like your drunk uncle Jimbo since 1776.
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Life Is a Many-Splendored Thing
– March 21, 2011
Two weeks ago, Illinois governor Patrick Joseph “Pat” Quinn III signed off on new legislation banning the death penalty in his state.
For me, the key sentiment from his statement was as follows:
Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it. With our broken system, we cannot ensure justice is achieved in every case.
Aficionados of capital punishment take note: this is a crucial distinction. Quinn is not saying that the death penalty itself is wrong or misguided — i.e., that no matter how heinous their deeds, there exist zero criminals in this world who deserve to have their lives forcibly taken from them. What he’s saying is that, given the practical limitations of our current justice system, there is no morally acceptable way to determine someone’s death-worthiness to the requisite degree of certainty that such an immutable outcome dictates.
Although it doesn’t come up much in my quotidian conversations with friends and coworkers involving which super power I’d rather have, or why Newsies is possibly the catchiest movie-musical of all time, I have always been a staunch — if mostly silent — opponent of the death penalty. (I can’t speak for my fellow editors, but perhaps they’ll chime in in the comments.) For me, it boils down to a few basic points:
