A few weeks ago, one of my 8^th graders interrupted our weekly current events round-up to ask the meaning of the word filibuster. If you find it maddening that most major legislation now requires a supermajority to pass in the Senate, imagine the indignation of a group of 13-year-olds who had just been subjected to months of studying the Constitution suddenly learning that 51-49 is actually a losing proposition. Earlier in the year, we’d watched the Schoolhouse Rocks video, I’m Just A Bill, and my girls are well-acquainted with checks and balances, separation of powers and the like. Increasingly, though, the singing parchment dancing on the steps of the Capitol feels like an artifact rather than a well-intended, if naïve, blueprint for how laws get passed in Washington. By the end of our detour into the intricacies of the F-word (as we’ve started calling the procedural manuever) the girls had raised a valid question: If you can just mess with the rules, what’s the point of learning all this stuff, anyway?

Middle school is the perfect time to study politics. After all, politics allows kids to confirm all of their suspicions about the hypocrisy and mendacity of us adults. By the time they’re twelve or thirteen, kids already know that what we say and what we mean isn’t always the same thing. They’re well aware that “grown-ups” often have no idea what they’re talking about, even though we’ll frequently pretend that we do. Thirteen-year-old girls have some of the strongest BS detectors on the planet, and in studying politics, they get to use them.

As a result, the students’ political analysis is often considerably more astute than that of the pundits, some of whom the girls have already encountered and seem to regard with deep and appropriate suspicion. In discussing the filibuster, for example, the girls’ first question was why the Democrats had done nothing to reform the system, even though they’re the ones in power. It didn’t take them long to figure out why Harry Reid might be inclined to maintain the status quo. Earlier in the school year, during the Republican convention, the media stumbled over itself to praise Ann Romney’s convention speech, while the girls were unenthused, especially after Mrs. Romney inexplicably yelled out “I love you women!”, which they seemed to regard as a pander, and a super weird one at that.

While middle schoolers may have always been natural skeptics, the internet has allowed them to gauge the accuracy of their BS thermometers in ways they couldn’t before. During current events, my students bring in articles from traditional newspapers, but also from fact-checking websites like PolitiFact or the Washington Post’s Fact Checker, which rates the truthfulness of politicians’ statements on a scale of Pinocchios. During the election, one student informed the others that according to her research, “Obama lies more frequently but Romney’s lies are much bigger.” Other students have read up on the media’s tendency to create “false balance” or false equivalencies between the two parties in an effort to appear “fair.” In short, kids have gone from suspecting politicians and pundits bend the truth to knowing for sure.

Of course, if politics appeals to the students’ burgeoning skepticism about the world around them, it also allows them to observe change in a way that gives them hope. They like debating the issues of the day, and they revel in the possibility that their own ideas might persuade others. I started teaching just after the 2008 election, and my students at the time repeatedly brought up the importance of young people in that race, excitedly noting that some kids may have persuaded their parents to vote for Obama. Last month, all of my 8^th graders wrote to Congress about issues that they care about, and their final letters were thoughtful and personal. One wrote in favor of the DREAM Act, another detailed her grandfather’s use of medical marijuana to cope with chronic illness. A girl I’ll call Samantha sent a detailed letter in support of gun control to her local representative. She was skeptical he’d have much to say about it (thanks to her web research, she already knew he had an A+ rating from the NRA). Still, there was much excitement when he actually wrote back.

His letter was cordial but evasive and ended with a promise to keep Samantha’s ideas in mind when he has to vote on legislation. At first, Samantha seemed dejected by what appeared to be a form letter (near the end, the Congressman encouraged her to continue on with Girl Scouts, despite the fact that she wasn’t one and hadn’t mentioned scouting in her letter). But the idea that an elected official had read one of the girls’ words and actually wrote back pleased everyone. The students inspected his words so carefully that eventually Samantha ran up to the office to make copies for the whole class.

I recently asked my students to write down the bits of our civics work that stuck with them. “Lots of people tend to be loyal to their party instead of what they believe,” wrote one. “Gallup polls are not always accurate,” wrote another. One student offered bullet points under a variety of categories including “What I Remember” (“social security is a political minefield”) and “What Made No Sense” (“Electoral college: I understand it but I think it’s ridiculous”). Others mentioned the issues they cared most about: immigration, education, gay rights. One simply wrote, “I now know what I don’t want to be when I grow up.”

In later conversations, many of the girls expressed disappointment that I wasn’t able to find my own 1992 “election journal” from 5^th grade, which I’d mentioned at the start of the year before assigning a similar, 2012 version of the project. The students wanted to know if the issues were the same then as now, if the players had changed. (The first time I projected a picture of Bill Clinton in my class this year, a student raised her hand and asked, “Isn’t that Hillary’s husband?”) I told them what I could remember from the journal: an entry on the “ozone layer,” a funny picture I’d cut out and included of an animated Ross Perot. The girls wanted to know if politics has always been so petty and stagnant. (“I am curious as to why Republicans and Democrats have remained prominent for so long,” one student wrote in a reflection. “It seems like so many other aspects of society fluctuate but those haven’t changed”). Politics has always been messy, I assured them. Partisanship and dysfunction aren’t unique to this time.

The particular dysfunction of our current politics, however, does give me pause, because it’s coupled with a generation of students who are tech-savvy, media-savvy, and uncomfortably self-aware. I’m impressed with the deep skepticism with which my girls approach the world around them, with the way they’re hyper-attuned to platitudes and insincerity. But I also hope they hold on to the passion they felt writing their letters and the excitement they felt when one came back. I hope their skepticism doesn’t morph into cynicism. We study how our country is supposed to work, even when it isn’t working, so we can struggle toward an ideal. I hope the system doesn’t seem so broken that my students come to see that struggle as pointless.

For the most part, of course, these worries are not new. Attempting to stay true to an ideal in the face of an encroaching “real world” is the basis for much of our literature, after all. Throughout American history, we’ve had politicians who changed the rules and behaved like children. The difference now, for better or worse, is that the actual children have the skills and tools to notice.

Illustration by Graham Gremore. Graham Gremore is a writer and cartoonist born and raised in St. Paul, Minnesota. He holds an MFA in Creative Writing, and he is the co-founder and co-director of StoryFarm, a literary arts non-profit in San Francisco. His cartoons have garnered over 125,000 views on Youtube, and have been featured on websites including HuffingtonPost and BuzzFeed. Visit him online at www.grahamgremore.com.

I’ve been reporting on prisons in California since June 2007. Every time I’d walk through the Sally Port of the prison, there to the left was death row. It was always a place that was off limits.

Whenever I would ask, and I asked almost every time I went inside, are you sure I can’t go inside Death Row? The Public Information Officer would make it very clear that it was a flat no. No one in the press goes inside Death Row. I would ask them why, and they would say, there’s safety and security concerns. And that’s kind of the standard response, safety and security of the institution. The only person who can really say, ‘You can go inside Death Row,’ is the Secretary of the Department of Corrections and Rehabilitation, Matt Cate.

One day in 2012, I had my chance to ask him to say yes.

“Matt Cate, apparently you are the only one who can actually authorize press access. So I want to ask you directly. I’d be willing to sign any waiver. I’d be willing to wear any protective clothing. Would it be possible to have press access inside these facilities? Death penalty. Protective Housing Unit and Adjustment Center?”

“Well, it’s a difficult problem,” Secretary Cate said, looking me in the eye, “as you know it’s complicated. I’ll consider it. I’m happy to have a further conversation about. I do want people to see the conditions there for example, because we’ve done a lot to improve the conditions at San Quentin. I go there myself on a pretty regular basis because it was pretty bad only five, six, seven years ago. The conditions there were really bad. And so I do want people to see that.”

The interview ended. And about two weeks later I got a phone call from the press office and they said, ‘We’re giving you access to Death Row.’ And that’s when it all started.

As we approach the entrance to the first of San Quentin’s three Death Row cellblocks, an officer calls out to Lieutenant Sam Robinson, the prison’s Public Information Officer and my guide through the prisons’s Death Rows, “Good afternoon, Lieutenant.”

“How ya doing brother?” Robinson calls back.

“Big man, big man,” the officer responds.

It’s now June 11^th. I’m headed into San Quentin State Prison with Lieutenant Sam Robinson to visit for the first time any press has been on, in Death Row in the State of California in eight years.

A gate closes behind me and then another opens, a long line of officers with guns are standing on a rail that goes up the wall. Their guns are aimed down, their eyes are steeled on the wall of cell blocks, five stories of caged men.

There are three different sections of Death Row. The Adjustment Center is where everybody starts their death sentence and if they behave badly, it’s where they go back to. North Segregation is for a select few who have behaved well for years. And East Block is for everyone else. Five hundred men are sentenced to end their days in East Block.

“East Block structurally mirrors our major housing units here at San Quentin,” says Lieutenant Robinson as we enter the block of cells. “That they’re all five stories high.”

I ask Lt. Robinson if I can interview the inmates in their cells. He says I can interview any inmate willing to talk to me. I approach the cell of a middle-aged man named Walter Cook. “Hello,” I say as the large man moves toward the gate of his cell, the front of  the bars covered in a sheet of black perforated steel.

“How ya doing?” Cook says.

In 1994, a jury convicted him of three counts of murder and sentenced him to death.

“So you have a phone in front of your cell,” I ask, “why?”

“Make legal calls,” Cook says, “talk to family, friends.”

“How long do you have access to the phone?” I ask.

“We get the phone like every other day, like once in the morning and once at night,” Cook says.

Cook has been here on Death Row for 20 years. He has two kids. One twenty, and one twenty-one. They visit every other week.

“You’re not in contact with your family, you have nothing. You have something to keep your sanity. We’re not like people portray us up on the movies, crazy, deranged people. I get it from tv, everybody child molester, rapist. You know. It seems like that’s the stereotype that everybody here, that’s what they are. Even the people that’s innocent, they be all, if you’re here, you got to be guilty. That’s not necessarily true.”

“Are you?” I ask.

“No, I’m not guilty,” Cook says.

“You’re not guilty?” I ask again.

“I’m not guilty,” he says again, a little laughter in his voice, as if he knows how that must sound.

“You’re innocent.” I say.

“Yes.”

“You did not do it.” I say again, “Are you sure?”

“I’m positive,” Cook says, this time more serious.

“I really appreciate you taking the time to talk with me,” I tell Cook.

“Alright,” Cook says, easily “No problem.”

We move on to the farthest end of the tier. I notice there’s a pink sign attached to the gate of the last cell. It identifies the inmate as visually impaired. His name is Justin Helzer.

“Hello.”

“Hello,” the man of about 30-35 calls back.

“How are you?” I ask

“I have a lot of medical problems,” Helzer says, his voice slurred, his eyes darting up and down.

“Oh, I see. Ok.” I say as an offer to leave if he wants me to. “I’m just doing a story about the conditions on Death Row. How do you feel about the conditions on Death Row?”

“Speaking from a medical standpoint,” Helzer says, sitting on the edge of his single bunk, leaning against the narrow edge of the cell wall. “It’s hard to see the doctor. For instance I only see the doctor once every two or three months unless it’s a visible problem. Then the nurse will schedule an appointment to see the doctor prior to my scheduled rotation.”

“How long,” I ask, “have you been here?”

“I’ve been here since 2005,” Helzer says, “but I was arrested since 2000. I was fighting my case from county jail for five years.”

“Are you guilty,” I ask, ready for him to say no.

“Yes,” Helzer says, “I kill people. Yes I do.”

“You did kill people?” I ask, surprised.

“Yes, I killed two people,” Helzer repeats, no hesitation in his voice. “Point is, I’m not. I wrote a letter of apology to the family members of the deceased. I apologized. It was so misdirected. I’m so sorry and it’s like a past life. I’m so not that person anymore. And so I don’t have a problem admitting what I did. I’ve taken responsibility for it. I’m not proud of it. To say it was a mistake is a huge understatement. I can’t express how sorry I am. It was so unnecessary. But I don’t want to talk about my case.”

“So you’re vision impaired?” I ask, changing the subject.

“I’m totally blind. What it was,” Helzer says, stumbling a bit, “It was a suicide attempt. I stuck two five-inch pens into my brain through my eye sockets. It didn’t kill me.”

“When did you do that?” I ask, trying to make sense of what he has just said.

“About a year and a half ago,” Helzer says.

“Oh, I see.”

“So it left me blind and partially paralyzed,” he says. “I was just tired of Death Row. And it was a failed suicide attempt.”

When he said that, I didn’t know what to say. I just felt like I had to stay in my role as a reporter. If he was going to say it so straight up, I felt like I had to take it straight up and just keep going, and that’s what we did. So while we talk he’s sitting on the edge of his bunk and he turns his face away from the cell door. I ask him what he thinks about the Death Penalty.

“It’s all politics,” Helzer says flat out, like this isn’t he first time he’s thought about it and now he has come to a conclusion, “Oh Death Row, tough on crime. It’s not a deterrent. The Death Penalty is not a deterrent. I’ll tell you why. One, is when people do commit crimes, they are not thinking, ‘Oh my gosh, I might get the death penalty, I better not do this.’ They’re in the moment. They want what they want. They have short-sighted. They don’t forsee the consequences of their actions because they’re impulsive. They do whatever they do, whatever crime it is. Now thinking about the ramifications. So that the notion that the death penalty is somehow a deterrent is a false premise.”

“What if people say they want the death penalty,” I ask, “just because they want people to be punished.”

“Let me tell you,” Helzer says. Then he laughs. “You can punish people plenty by giving them LWOP.” (He means life without the possibility of parole or LWOP.) “Besides, there are people here on Death Row for thirty, forty years and they haven’t gotten killed. And they have so many more appeals left to them. So no one’s getting killed. No one’s getting executed.”
“How do you see the rest of your life?” I ask.

“I don’t know,” Helzer says, “I just take one day at a time. Just one day at a time.”

So we are now going into the Adjustment Center.

“Once we step inside the facility,” Lt. Robinson tells me, his voice dropping, serious, “the officer at the door is going to want to see your ID. Again, he’s going to ID you and then as soon as we step inside and the door closes behind us, there’s what we call the Unit Isolation Log, which details all the movement in and out of the facility, whether it be inmate or staff entering and exiting the facility, we document all of the movement in and out of here. And so we’ll sign into that as we enter the Adjustment Center. Again, the Adjustment Center is a prison within a prison. Our staff don’t have the ability to leave the facility, the Adjustment Center themselves. There’s an officer on the exterior of the facility who controls the key that allows their egress and, in and out of the facility.

The Adjustment Center is the place where every person sentenced to Death Row in the State of California, unless they’re a woman, starts their Death Row sentence and they’re put in boxes. Like individual cement contained boxes. These individuals live in these cells alone twenty-three and a half hours a day.

They’ve brought me out a green vest. “What kind of vest is this, Sam?”

“This is a stab-proof vest,” Lt. Robinson says, “inside a prison we’re not necessarily worried a whole lot about people shooting at us. We’re more worried about inmates having crude items they’ve manufactured to stab us or punch us with. So this vest here protects all of your vital organs. Just because a guy is handcuffed and is escorted by two staff members here in the facility, it doesn’t negate them from acting out violently, such as kicking our staff. There’s actually one individual in here. This individual is identified in cell 1AC4. His name is Tuliapa. Over the course of the last couple of decades, he’s actually successfully retired four of our staff members here in this facility due to assaults he’s perpetuated on them. Those individuals were assaulted to the point that their injuries were extremely severe and they were never, ever able to return to duty.”

This is the place in California where the most dangerous individuals, who have commited the worst crimes, often times gang leaders are kept. This is the worst of Death Row.

“If you’re here in the Adjustment Center, you’re not functioning well in any other facility. And this is the highest security housing unit we have at this facility. I worked here in the Adjustment Center for three years as a supervisor and I’m an African-American male. And so it would seem like I would be offended by someone throwing out the N word to me on a regular basis, right? Or it would seem like I would have some type of sensibility about that. But working here in the Adjustment Center it just goes right over my head. I’ve been called that so much here in this facility that it’s almost like saying ‘blue’ or ‘orange’ or whatever the case may be. It has no value or no meaning to it.”

He says when he was there, the cell doors were just bars and the inmates would throw feces and urine on the officers. They called it gassing. But in 2004, prison officials made that impossible.

“It was drama here in the facility,” Lt. Robinson says, “we changed the physical structure in here in that we removed all of the cell bar fronts and replaced them with solid concrete cell fronts. So the front of the cell was concrete. The sliding door in front of the cell was concrete. And so that’s prevented the individuals from committing those assaults of gassings and darting our staff here in the facility.

I stand along and listen and watch. Down the empty hall I see a white envelope on a clear line of filament slide out from under one of the solid cell doors. It sits there for a moment. Then another white envelope attached to another line of clear filament shoots out over the filament of the first. While I’m watching the envelopes slide up and down the floor of the tier, Robinson walks up.

“How do they do that?” I ask.

“Lots of practice,” Lt. Robinson says.

“So how do they do it? They put it on a string…”

“Put it on a string,” Lt. Robinson says, “slide it through a little sliver under their door, which is less than half of an inch.”

“But how does,” I ask, watching the now four envelopes slide up and down the floor, “that was way down there. That must have been six cells down. But how does he get it to come all the way down here?”

“With a little bit of inertia,” Lt. Robinsons says, “he’s able to get it going in one direction and then he gets help from someone in the cell next to him and they keep moving it down the facilty.”

By now there are five envelopes shooting up and down the cement floor. The mail has arrived. “The mail has arrived,” Lt. Robinson says, “and many times in this facility it’s not just mail. It’s something more obvious than that.”

Robinson turns from the tier and waves Officer Taylor over. “Hey Paul, somebody just fished something to cell number 10.” He lowers his voice. I can’t hear exactly what he’s saying, but it’s serious.  In seconds, a team of six officers appear, canister of pepper spray and handcuffs are hanging from their thick belts. As they prepare to enter the tier, officers place thick protective glasses over their eyes and disposable gloves on their hands. As the first gate slides back, Lt. Robinson orders me to turn and follow him out of the area.

“Can I watch? Let me watch. I mean I want to see what happens. No?”

I’m not allowed. Officers direct me out a back door to a yard of cages. There Lt. Robinson stops to explain what is happening. “Essentially, what’s just taken place is we observed inmates receiving contraband because anything they send down a tier on a fish line is considered contraband. If it leaves their cell headed to another individual, it’s illegal inside the facility and so essentially, our staff is going down the tier to remove that individual from his cell.

“Why can’t I witness that treatment?” I ask.

“Because as you can see,” Lt. Robinson says, “the facility, the physical structure of the Adjustment Center, there’s not a lot of space in here and if things go sideways inside of there you and I would just really be in the way. There’s nothing that we could do…”

“If they had to move that inmate out of that inmate out of that environment…” I begin.

“Well, they are moving the inmate out of his cell,” Lt. Robinson says, “cause they have to go inside and search his cell.”

“Could they hold him out in that open area?” I ask.

“They could either hold him out in the open area, or they bring him to the middle to the center holding cell that we walked past in the facility,” Lt. Robinson explains.

“Would he resist that?” I ask.

“You never know. You never know,” Lt. Robinson says.

Robinson says I can talk to any inmate who will talk to me.

An officer asks an inmate returning to his cell from his time out in a cage on the yard, “Want to talk to the media?” The inmate looks at me and shakes his head.

“As you see can see,” Robinson says, “when we move them, we move them one inmate into the facility at a time. In comes the next inmate.”

“He doesn’t want to talk to me either?”

I’m surrounded by officers. The inmate has an officer at either elbow and an officer behind him with a baton. “You want to talk to her?” Lt. Robinson asks the inmate being moved back to his cell.

I’m supposed to say, ‘What would you like to tell me about your life inside solitary confinement in the Adjustment Center, on the record, for public radio. And each of the inmates looks at me, “Are you sure you don’t want to talk to me?” like am I crazy?

“No I can’t. I’m sorry,” one of the inmates standing a few feet in front of me says, officers holding tight to his elbows. “Why can’t you?” I ask.

“I don’t want to,” he says.

“Do you think you’ll get in trouble or something?”

“No I just don’t want to.”

“You know they have to go back to the yard and deal with their comrades,” an officer says.

Then, one of the inmates, a tall, lean black man takes a look at me and says yes.

The inmate is places inside the black holding cell in the hallway, his handcuffs stay on.

And he turns around and he looks at me.

“My name is Carmen Ward. Conditions here in the Adjustment Center are horrendous, unfair, biased. It is restricted in everything you do. Everything. What the Adjustment Center is for is for a brief punishment, right? Prison is violent, I get that. But at some point, people have to be told when their punishment ends.”

Ward’s been in the Adjustment Center for seven years and says he has no idea when he’ll be able to leave. Robinson says there’s a process for getting out of the Adjustment Center but that Ward has yet to follow it. One thing that’s become clear to me is that a prisoner’s quality of life on Death Row is heavily impacted by whether they follow the prison rules. If inmates behave in accordance with the rules, if they’re compliant, there’s a chance they can be transferred to North Segregation.

Robinson and I walk to a cage at the end of a long walkway. He reaches over for a phone at the side of the cage.

“Drop the bucket,” he says in the receiver before hanging it back up.

I ask him what that means.

“Drop the elevator. North Segregation is actually six stories up and it’s an isolated housing unit that was designed many, many years ago to house our Death Row population.”

North Segregation. The most desired unit of Death Row. North Seg is where you get to go if you don’t have any problems. If you are good on Death Row, this is where you want to be. On the other hand it’s where they send you on a death watch. So when you are up for an execution, that’s where you go.

When we reach the top, we step out to a hallway and a series of locked gates that lead to one floor of sixty-eight cells.

“The inmates who live in this facility are in a much different environment than the one we just witnessed over in the Adjustment Center. In that they’re walking around pretty freely in a contained environment. In the Adjustment Center, no one walks the tier freely. Here in North Seg, they walk the tier freely. I believe they release them out of their cells at about seven in the morning and essentially they hang out until about 1:30 in the afternoon.”

We’re going up some stairs from the cells to the yard.

“To the yard for North Segregation,” Robinson says.

At the top of the stairs, the door opens out to a roof and a beautiful west-facing view of Mt. Tamalpais. “Wow. What a view.”

Most of the men on the other side of the fence are just standing over in the distance and I’m looking at them, and they’re looking at me. “Hello,” I say.

“How’s it going?” Lt. Robinson says to some of the officers and men on the yard. One of the men wearing dark sunglasses approaches me and we start to talk. His name is Curtis Ervin.

“This particular program is not a true reflection of the entire Death Row because this is quote, unquote, ‘an honor program.’”

“What’s the honor part of it?” I ask.

“There are more privileges than East Block Death Row,” Ervin says, “more movement.”

“How do you get on North Block Death Row?” I ask.

“Waiting list,” Ervin says, “no write-ups, no 115’s.”

You have the opportunity to put your name on a list and the only way someone’s going to get off the top of the list is if they are executed or they die of natural causes or they commit suicide.

“How do I know if somebody’s is willing to talk to me?” I ask Lt. Robinson.

“Ask,” Lt. Robinson says.

“Should I just yell out?”

We make our way back down to the North Segregation tier and I’m allowed to walk along the tier and interview, again, anyone.

One of the cells I approach is the cell of Douglas Mickey, “Oh, you have nice lighting. How did you design that?”

“Just put a piece of paper on a lamp,” Mickey says, “it’s better than a bright light.”

There’s kind of a glow, like an orange glow in his cell. He sleeps on the floor and uses the surface of his bed as a desk. And he says he was a country boy. “How long have you been here?” I ask.

“Since ’83,” he says.

“Murder 1?”

“Actually, I got it for jaywalking. That’s what you’re here for on Death Row.”

In 1980, he was convicted of two first-degree murders and sentenced to death, “And I’ve been a hunt, fishing guy in Alaska, and I really love the outdoors. But I could survive in here. I can stay productive.”

This hunting, fishing man has been locked up in this cell for 32 years.

“You don’t have any trees though,” I say, wondering how he survives without nature.

“I’ve got one right here,” Mickey says.

So he reaches down, says he has a tree. And I’m thinking a tree? And he reaches down and he holds up, “Bonsai,” this six-inch high macramé tree in his hand. “She’s taking a picture of your tree.”
“Pull it back just bit,” I ask, so I can take a picture of his tree.

“Take it easy,” I say as I walk down the tier.

“Tell Jerry I said hi,” Mickey says as we leave. I think he means Jerry Brown, the Governor of California.

Down at the end of the tier, inside the very last cell, a man is sitting on his bunk, playing the guitar.

“And this is…Mr. Ervin. You’re playing.”
He stops briefly, but I encourage him to continue, “Keep playing, I want to record.”

Just as Ervin begins to play, Robinson says it’s time to go, “We got to get going.”

I follow Robinson back down the tier, through the security gate and out through the big steel doors, passing guards and guns.
“Bye. Bye. Bye.”

It’s a relief to be out of the cellblock, walking in the warm sunshine. It’s a feeling the condemned men I’ve just left behind will probably never have and it occurs to me, that the men I’ve just spent time with are probably never going to see another reporter in their lifetime.

Now when I ask if I can go back on Death Row. I ask if any other reporters are going on Death Row and it’s no. Do you have any plan for letting any reporters go on Death Row, no. It was a one shot deal.

I am a criminal defense attorney for the poor and oppressed and am very proud of what I do, fighting the proverbial “man,” fixing a broken system, and making sure that anyone who has ever been part of perpetrating a shakedown gets a fair shake. Advertising my services has become very, very expensive, even cost prohibitive, so I decided to tattoo my occupation on my forehead. Unfortunately tattoos don’t come with a spell check feature, so what was meant to say:

PUBLIC DEFENDER

Actually says, on my forehead, for the world to see:

PUBIC DEFENDER

Now as much as I am a champion of people’s nether-regions, I’m frankly afraid I may end up on some predator watch list.  Can I sue my tattoo artist for the trauma and reputational harm coming my way?

The Accidental Pubic Defender

Dear TABD,

First off, YIKES.  Please write me separately an update on how this tattoo snafoo has affected your love life.  It’s possible that what you’ve lost in future clients you have won back in terms of future dates.  But that’s an aside.

Tatoos, while the subject of many youthful indiscretions, are also the subject of many lawsuits.  You may have heard the one about the tattoo artist who created, inked, and copyrighted the tattoo Mike Tyson has on his face.  He sued the makers of The Hangover Part II for using the Tattoo without his permission.  I would show you the tattoo via a hyperlink, but frankly I’m afraid to get sued.  Rent ain’t cheap.  The case settled, so we may never know how much the “tattooing Ed Helm’s face” gag cost the producers, but safe to say since the Hangover Part II grossed nearly $600 million worldwide, it was probably well worth it.

You will not be surprised to learn that many of our great nation’s tattoo artists suffer from poor spelling.  For example, in 2007, an auto mechanic filed a lawsuit against a tattoo artist for inking him with “Chi-tonw” instead of the Chicago moniker “Chi-town.”  The lawsuit alleged negligence (“what, I can’t be texting and tattooing at the same time?”), fraud (“I got my tattoo degree from Harvard!”) and emotional damage (“The tattoo of the Little Engine That Could is a daily reminder that I Can’t”).  Wouldn’t you know it, the Chicago community rallied behind the tattoo artist, and his business swelled with individuals wanting to get a “Chi-Tonw” tattoo, misspelled by design.  And all the original victim of the Chi-Tonw misbranding got was 15 seconds of fame and a corrected tattoo.  As you might often find yourself asking jurors, where’s the justice?!

Unfortunately TABD, you probably don’t have much of a claim.  That’s because any tattoo parlor worth its ink probably has a system in place to make sure that you have reviewed and agreed to the exact lettering that will go on your body.  For you to win a negligence claim, you would basically have to show that there was 1) a duty owed to you, 2) which was breached, 3) which caused 4) you some damage.  Some of these are easy to meet.  You can probably show the damage (like if, in fact, you do end up on a predator watch list).  And you can probably show the causation (it’s fairly clear that you did not tattoo yourself, unless you have superhuman pain tolerance, in which case you should reconsider your job as a public defender and maybe just straight up become Batman).  But duty and breach will be pretty tricky, because odds are your tattoo “artiste” showed you the stencil of the tattoo and you approved it.  In fact, you probably had to say “yes, I love it” 100 times before you were branded Mr. Pubic for life.  You probably even signed a release that said that the tattoo shop was not responsible for the meaning of spelling of the tattoo.

You might have a better chance with images, because the way they appear on your skin may very well be different from what you agreed to.  Take a look at this gem.  And this one.  But I suspect you can’t fault the tattoo artist if your body just isn’t a great canvas.  Your tattoo artist probably isn’t legally responsible if your back fat makes your cross look like a vertical line.

But here’s the good news: it’s possible that if you get fired from your employment for having a tattoo, you could sue your employer!  (Bet you wish you were working for big Mr. Money Bags now don’t ya’!)  I mean, more often than not, you will probably lose the case because courts tend to uphold dress codes and some displays of ink are simply not dress-code friendly (consider, will you, the middle finger).  But if you can show that there’s a religious element to your tattoo-of-choice, you may show that your employer violated your religious freedom in terminating you.  Thing is, and I’m no expert, I don’t know of (m)any religions that preach the gospel of pubic defense.  But really, I would like to be wrong on this one.

And here’s what may be a real moment of karma for you— law enforcement generally catalogs the tattoos of individuals who have been processed by the criminal justice system.  This makes sense, since you may not remember the height, weight or hair color of your robber, but you sure can remember that he had a tattoo of the Tazmanian Devil riding a unicorn.  So you really ought to stay out of trouble, or you’ll basically never get away with anything ever again ever at all.  It’s a good thing you know a lot of defense attorneys, but sure is a shame you’re not beloved by the prosecutors’ offices.

I guess my best, non-legal, advice to you is, maybe next time stick to Henna?  Or those sticker tattoos you can get in an arcade if you are ever allowed to be near  children again.

Next week’s column, “T-9 Autocorrect Mistakes: Your Legal Rights when Your Phone Leads to a Break Up.”

Love,

Luci Lawless

This month marks the 50th anniversary of Gideon v. Wainwright, the case that established the right to counsel for indigent defendants. Or in plain English, the case that meant if someone is facing criminal charges and can’t afford an attorney, the state will provide one.

The definitive, inimitable book on the subject is Gideon’s Trumpet by Anthony Lewis, published in 1964. It’s a wonder of well-structured storytelling, an oddly riveting book about a case in which the outcome is no mystery. I’ve been rereading it lately, and it’s been making me think a lot about what Gideon means today, particularly in the civil context. There is no equivalent right to counsel in civil cases.

Civil Gideon is a matter of debate even among people who agree that the current system, in which many (maybe most) litigants don’t have lawyers. Clearly, having people unequipped to litigate their own cases trying to muddle through isn’t optimal. But which civil litigants if any should have publicly-funded lawyers is a whole different question.

The thing that’s really striking to me as I read Gideon’s Trumpet is that Clarence Earl Gideon, the defendant in the famous case, was remarkably able to follow court procedure given that he was not a lawyer and indeed had very little formal education; he “made all his grades up to the eighth grade,” as he wrote in a letter to Abe Fortas, who would represent him before the Supreme Court. He was a drifter, a petty criminal, in and out of prison from the age of fifteen or so. When he was charged with breaking and entering a Florida poolhall in 1961, he was 41. He asked for a lawyer in the case and was denied. He managed to call witnesses and cross-examine them, but, as Lewis points out, didn’t raise key questions or advance arguments that would be obvious to an attorney. And then when he was convicted, he managed to file all the right paperwork to ask the Supreme Court to hear his case.

Most people, then and now, can’t do that. People don’t have the knowledge, don’t know where to send paperwork, don’t know how to ask in the right way. The cuts to prison systems and law libraries, and the rise of extreme isolation, make those skills even harder to acquire.

Most people, like Gideon, also can’t advance key arguments or raise crucial facts in their civil cases. They might lose their house, their kids, their wages. They might be deported. Though not criminal, the stakes are still high.

So as I’ve been reading Gideon’s Trumpet and documents associated with the case, I’ve been thinking a lot about how and where the logic behind Gideon might apply in the civil arena. And in some ways, more than thinking about the logic, I’ve been thinking about the emotion, the gut feeling of the case: is this right? Is this just? That’s what the justices were grappling with in Gideon, and I think it’s something most people who spend time in civil court grapple with too.

For more from Kat Aaron on Gideon and civil representation, see her blog Not So Civil Justice.

Cartoon credit: Stu’s Views at stus.com

So when I studied abroad in England, I thought I had gone to heaven. Not only did everyone there have accents, but to them, I had an accent too! Win-win. My friends and I made friends with lots of British boys, and we giggled over each other’s pronunciations and balanced on tightropes of sexual tension. But something was still imperfect, which I realize in retrospect was probably, for me at least, the fact that they were boys.

In 2003, fresh off the boat from college, my first job was at a summer camp in upstate New York. Little did I know that, unlike in Commonwealth countries where “working holiday” visas abound, the only thing similar that the U.S. offers to the gap-year citizens of the world is the J-1 visa, “for individuals approved to participate in work-and study-based exchange visitor programs.”[1] Bring us your au pairs, your interns, your exchange students, your erstwhile camp counselors yearning to be free … just as long as they return to their home countries within 30 days of their program’s completion. Those who come on this visa must be sponsored by an employer or eligible institution, which arranges all their paperwork with the government in exchange for fees. At summer camps, at least, the participants are paid usually a small stipend, which barely covers their application and visa fees and their flights from their home countries, but it’s hawked as a way to earn money and make great friends while seeing the world. All this to say: the counselors’ cabins of American summer camps are full of People With Accents.

And so it was I found myself befriending one tall and tanned Australian lifeguard. She was confident, older, a woman of the world, spunky, didn’t care what anyone else thought of her. I was still, at 21, mired in a teenage mindset that placed great importance on other people’s expectations, and here was someone who didn’t care if she defied them. While perhaps not exactly love at first sight, you could say she had me at “g’day.”

From friendship, we progressed into the heightened courtship antics particular to summer camp: passing notes; sneaking into each other’s cabins, stargazing in dark fields, painfully parting at curfew, arranging our days off to coincide. At summer’s end, we faced the question of all great summer romances: does this relationship exist in the real world? We found ourselves answering “yes.” But 30 days later, I learned that that answer was relative, and that, in the eyes of the U.S. government, young love (and any unmarried love, no matter how old) was irrelevant. Jodi’s visa end-date was nigh, and she was going to have to leave.

Here is the moral of our story, boys and girls: if you find yourself on the cusp of a bi-national relationship, ask yourself whether you can imagine the rest of your life without that person. Ask yourself if you could ever be happy with one of the other drab, accentless, American fish in the sea. If the answer is yes, run for the hills.

All couples in this situation struggle—including those in heterosexual relationships. Many bounce around visa restrictions for years or else rush into marriage as a stopgap measure, which can come with its own set of problems. When they are married, it can take years for a partner’s Green Card to come through, and those years can involve a great deal of time apart.

Get ready for months at a time of conducting your relationship at a distance, or else for the potential sacrificing your own career or family by joining your partner in their country. And even if everything works out smoothly, whether you settle in your country or your partner’s, one of you will always be far from your home and family, a situation that can cause great stress and pain for everyone involved. Most likely, your children will grow up with at least one set of grandparents, aunts, uncles, and cousins living half a world away. If, like most people, you have a limited amount of vacation time, you will have to spend all of it visiting faraway family rather than exploring new places you’ve always wanted to see. Unless you undergo the permanent residency process in both your countries (which usually involves living in the other country), you may have to undergo uncomfortable scrutiny and interrogation every time you visit your partner’s native land.  Let this be a lesson to all MASH-playing twelve-year-olds: there’s more to The Dreamy Accent than meets the ear.

I didn’t know any of this when Jodi and I decided to continue our relationship after that fateful summer’s end. Jodi knew some of it, having been in a relationship with an American for a few years in the past. But even as I began to learn the scope of what was involved, I couldn’t believe that there was simply no answer for same-sex binational couples. Zilch. Radio silence from the government; just a helpful, if horribly depressing, fact sheet from Lambda Legal detailing their advice for same-sex couples dealing with immigration issues.

I’m lucky that my partner is from an industrialized nation with a rather progressive government, one that would not only let me immigrate there on the basis of our partnership, but that would let us live together without fear for our lives. Our story would be much different if she were from, say, Iran, one of the seven countries where the penalty for homosexuality is death, or Somalia, where the penalty is either life in prison, death, or expulsion from the country. I know which I’d choose—but then where would we go? There would be no nation in which we could legally live. In all, 78 countries criminalize homosexuality.[2] I was very, very lucky to fall for an Australian.

And I was also lucky to be born an American. Looking at that list of 78 countries, I am so grateful that, at the age of twelve, I was even playing MASH in the first place. That I was not sold into sex-trafficking. That I was given a free public education, despite being female. That I haven’t been stoned to death for having sex outside of wedlock. That I am allowed to drive and work outside the home. That, despite our legal marriage not being recognized in certain U.S. states or by the federal government, there was somewhere we could legally get married, and there are some other places that even recognize it.

When I grow up, I could live in a mansion in my native land with my tall, dark and handsome husband, have 2.5 kids and just as many cars—if I wanted to. I could be President of my country if anyone would vote for me. We have a whole holiday dedicated to thankfulness. And we have a whole lot to be thankful for.

I love my country, despite its shortcomings. I wish it loved me—and my beloved— back.

Just like everybody else, I was moved and horrified by The Invisible War. But what really excited me was how the film seemed to be doing what many documentary filmmakers I think set out to do. You’re changing policy! Has this been surprising?

We knew we had come across something very explosive that had been covered up for a long time. So we were pretty hopeful it would really make an impact in terms of making people aware of the issue. But we didn’t expect the kind of change that this has really caused–it’s been remarkable, and it’s continuing. Not only did Panetta change policy few days after seeing it, but it’s played role in causing hearings in both the House and Senate. We also know that the film has been seen by at least 250,000 military members, and the military is using it as part of its training. Many if not most generals have seen it.

I knew you were pushing for it to be a part of training–but you’re saying that’s now happened?

Yes. It’s become a reference point for the issue.

So is it safe to say the reaction is beyond what you expected?

Ha… Well, we expected the military to respond how it always has: deny, then discredit the victims, then claim the issue is localized to a particular base and/or group of people. I think Panetta was more responsive than other secretaries of defense might have been, but also the film was so unassailable.

How’d the idea for the film come to you?

I read an article by Helen Benedict then started doing more research. It didn’t take much to know it was going to be very powerful.

Do you find yourself involved in an ongoing conversation with policymakers and officials at this point–do they reach out to you?

Very much so. I meet with senators, with people in Pentagon. I’m very involved in trying to continue to change policy, because while the changes they’ve made have been important–they’ve prioritized the educational aspect [of the film]–there are certain structural changes we’re pushing hard for. The most important is taking the decision to investigate and prosecute these crimes and moving it out of the chain of command. Panetta did elevate the task of investigating and prosecuting from the level of commander to the level of colonel, but it needs to be removed from the change of command altogether. Until they make that structural change, there will be significant underreporting, and as long as you have that, you’ll have assaults, and serial offenders.

You credit Panetta’s seeing the film for his decision to make that change–how do you know the film was the reason?

My producer undertook a strategic and ambitious plan, organizing a series of screenings for people who were highly placed–former members of the military, members of congress, corporations, news outlets. I think it was thirty screenings over several months. So these people were seeing it, and we knew they were talking. I’m sure he was hearing from people during that time. So when he finally did see it, we  learned through another one of our producers who talked to him at the White House Correspondents’ dinner how moved he was by it. And you know, Hagel has also now seen it and has said it’s the second most important issue for the DOD after Afghanistan. You have to realize that two years ago it wasn’t even in the top ten.

Congratulations.

Thank you.

I’ve recently opened a menswear boutique called “Haus Of Jorts” – we sell jean shorts, or “jorts,” to the discriminating Megadeth fan on the border of New York and Massachusetts – and business is lagging just a little bit.  I thought about a couple of different strategies for getting our sales numbers up, and I came up with two totally awesome ideas.  First, I think I want to change the name of the shop to “Jorts R Us” because then people will know that we R jorts.  Then, I want to run a contest: whoever submits the best picture of himself (or herself even!) rockin’ a pair of jorts to our Facebook page will get a $700 shopping spree!  People will “share” and “like” our contest all over their social media, and that’s an easy promotion for our store.  What do you think?

Rock and roll,

Jortsfan241@aol.com

Dear Jorts Fan,

While I certainly applaud your entrepreneurial spirit, I must proffer a quick “slow your roll” on your marketing concepts.  The first idea won’t work, and there’s a bunch of things you’ll have to consider about the second.

First off, while “Jorts R Us” is a terribly clever name and would convey the message that you R, in fact, Jorts, there’s a relatively famous brand out there with a fairly strong grasp on trademark rights for “R Us.” Under the Federal Trademark Dilution Act, the owner of a “famous trademark” is entitled to injunctive relief.  That means you can’t commercially use the trademark after it’s become famous in a way that is likely to cause “dilution by blurring” (creating confusion over whether you’re affiliated with the other “R Us”) or “dilution by tarnishment” (making the other “R Us” look bad).

The good people at Toys “R” Us have traditionally been very proactive in defending their “famous trademark.” The unfortunate enterprises that have come up against this intellectual property juggernaut include “Smokes ‘R’ Us”[i], “Adults ‘R’ Us”[ii], and “Guns Are We / Guns Are Us”[iii], each of which probably presents a pretty decent argument for “dilution by tarnishment.” Additionally, Toys “R” Us has used the procedures of the World Intellectual Property Association to successfully seize domain names such as “bestcreditcardsrus.info,” “insurancerus.info,” “personalinjurylawyersrus.com,” “freeonlinegamesrus.com,” “homebusinessopportunityrus.com,” “tattoosrus.info,” “digitalproductsrus.com,” “desklampsrus.com,” and many others.[iv]  In other words, this wouldn’t exactly be their first trip to the rodeo.  Sorry, Jorts Fan, but I think “Haus of Jorts” is a … fine … name, so you probably shouldn’t waste too much time on clever rebranding.

Let’s move on to your promotional contest. You’re right that it’s a very easy way to get some publicity, but it’s also an easy way to get into some trouble.  First off, while you can use Facebook’s service to run a contest, doing so is subject to their Terms of Service[v], including the requirement that you build or use an App. You can’t just have people post pictures to your “timeline” (or “wall”), for example.  So that’s one hurdle. You can roll the dice I suppose, but if Facebook sees that you’re violating their Terms, they might deactivate your account, and then the dozens of folks who’ve “liked” Haus of Jorts won’t be able to keep up with you anymore.

As an even more preliminary matter, the method of operating the promotion is very important as well.  There are both state and federal laws that control here, and you don’t want to run afoul of them; because you’re located at the border of two states, you probably need to worry about the promotions laws in both New York and Massachusetts (and if you open your contest to people from any other state, that state’s laws as well).

There are three main categories of promotions: lotteries, sweepstakes, and contests.  A lottery involves a prize (something of value) being awarded by chance (i.e., random drawing) in exchange for consideration (paying for an entry).  “Consideration” doesn’t necessarily just mean money – effort, or anything of value, can constitute consideration.  While some courts have found that merely having internet access isn’t consideration, to my knowledge, no court has ruled on whether having a Facebook account might count as consideration.  And if you’re found to be running a lottery, well, that’s illegal.

A sweepstakes includes a prize and chance, but must either be completely free to enter or provide for a free entry method (i.e., “no purchase necessary”).  A contest offers a prize, can involve consideration, but is judged on skill or ability.  I’m guessing that your promotion would probably be best operated as a contest – note that you need to set up some definitive judging criteria and have judges who are qualified to apply them.  So, maybe you need to go to a Megadeth show, find some people that really know jorts and have also appeared on Bravo’s “Project Runway,” and have them judge the contest using clearly defined criteria (“most jorty” or “best jort + mullet combo” perhaps).

Also, depending on the value of the prize being offered, some states will require you to post a bond and satisfy other requirements.  Generally this threshold is around $5,000, so you might be OK here – and you’ll need to report the prize to the IRS as it’s over $600.

If you want to keep reading up on the exciting world of promotions law, other people have written some more “professional”-type blog posts – you can probably find them if your typing finger works, but here are a couple leads: http://www.socialmediaexplorer.com/digital-marketing/sweepstakes-contests-bloggers/ and http://www.savingforsomeday.com/blog-law-is-your-giveaway-legal/.

Rock on, Jorts Fan,

Li’l Tommy Hagen

Lance’s discussion about culture was strictly about doping, but other sports have their own unique cultures of deviance, most notably around violence.   Hockey, football, mixed martial arts, and other contact sports are constant targets of public scrutiny over excessive violence, yet little is done because we cannot imagine these sports without some level of physical aggression.

Episodes of doping and extreme violence raise an interesting question: what caused being deviant to emerge as the new normal in professional sports?

Social scientists suggest that society overemphasizes the cultural goal of success, and this is particularly evident in our obsession with sports.  Sports fans are tremendously invested in their teams.  I can recall vividly and in anguish the details of where I was when the favored (and my beloved) New England Patriots suffered a devastating loss against the New York Giants in Superbowl XLII in 2008.  Aside from the weather, sports teams’ wins and losses are a topic of conversation you hear not only among friends and co-workers, but also among strangers on the subway, in elevators, and waiting in line at the coffee shop.

There has been a cultural shift in the way we view athletic participation as well.  Kids join competitive sports leagues at younger ages; high school and college athletes devote considerable time and resources to increase the likelihood of an athletic scholarship, being drafted into a professional league, and lucrative endorsement deals later down the road; people believe the easiest way to improve one’s social position is not via education but professional athletics.

However, people feel “strained,” to use Robert Merton’s sociological term, because not everyone can attain the culturally desired goal of success.  Individuals become frustrated and resort to illegitimate means to achieve this desired end.  Athletes are taught to abide by the rules of the game; however, the “winning at all costs” objective drives many to engage in rule-breaking–deviant behavior to live up to this cultural ideal.  A Major League Baseball player who has a goal of hitting 75 home runs in one season but fails will be tempted to take performance-enhancing drugs.  Football players will risk penalties if they know an illegal hit to a key opponent will give their team an edge in the playoffs.

The expectation of doping or hard hits becomes an acquired belief as more and more athletes see the benefits for breaking the rules in their respective sports.  Athletes who break rules may come to believe what they are doing is okay because everyone is doing it and they wouldn’t have achieved success without it.  Case and point: the unapologetic Lance.

Now that I have painted a picture in which everyone in sports are rule-breakers, how do we change it?  (I am going out on a limb and say doping and excessive violence should stop.)  Can the law help?

In the United States, there have been several federal attempts to regulate sports violence and doping.  There were two bills that attempted to regulate player violence but failed.  One bill, the Sports Violence Act of 1980, would have imposed up to one year in prison for professional athletes who knowingly used excessive force during a game.  The second bill, the Sports Violence Arbitration Act of 1983, would have created a tribunal within the federal system to adjudicate matters of excessive violence.

In 2005, the growing concern of doping in Major League Baseball (MLB) prompted a series of hearings and a barrage of bills in both the House and Senate. These bills, the Clean Sports Act of 2005, the Drug Free Sports Act of 2005, and the Professional Sports Integrity and Accountability Act, would have required all professional sports leagues to adopt a uniform drug-testing policy that accorded to standards set by the United States Anti-Doping Agency (USADA).  Players would have been subject to random testing without notice at least five times a year including the off-season.  There too, these bills failed, bolstering the legal immunity sports enjoy.

Law needs to play a prominent role to regulate and curb rule-violators, but as importantly, law needs to play a symbolic role to restore the meaning of fairness and integrity back into sport.

Legally, creating and using laws to curb deviance in sports is critical because it would provide an effective deterrent for rule violators beyond a nominal fine or suspension.  Eldon Ham, op-ed contributor to the New York Times, cleverly proposed “giving refs a gavel.”  The fear of law would likely deter athletes, but regulation must occur from the outside to prevent sports the relative immunity it has held for so many years.  Sports leagues and associations should turn over players and any relevant evidence (i.e., videotapes, documentation, and drug test results) to legal authorities as a way to stop player misconduct.  They also should help courts interpret the meaning of their internalized rules because there is a very thin fine-line between a “fair hit” versus a “cheap shot,” unless there is some explicit incentive structure like player bounty program like the NFL’s New Orleans Saints had in place.

Symbolically, law can also change the way the public views sport itself.  Legal scholars suggest that law has considerable potential to change the social meaning of particular behavior by sending a message about what is acceptable and unacceptable behavior.  Fans, parents, coaches, and athletes, will begin to see that there are legal consequences for engaging in behavior that the law considers unsportsmanlike conduct.  As more athletes learn to play within the rules, future generations will emulate those who succeeded, changing the culture of sport and hopefully resurrecting the axiom that we used to hear on the playground as kids: winners never cheat and cheaters never win.

Jill D. Weinberg is an instructor in the Master’s of Sports Administration Graduate Program at Northwestern University, a research associate at the American Bar Foundation, and a PhD candidate in Sociology at Northwestern University.

Photo credit: Insidesportsillustrated.com

For example, in Brown v. Board of Education, the Supreme Court appealed to a historical narrative of education in order to reach its unanimous decision: “[w]e must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.” The story of education was key. In fact, the Court’s mention of the detrimental psychological effects of segregated schools on children only made sense in reference to the purpose of education as understood historically.

But why does it matter? The foremost philosopher of narrative, J. David Velleman of NYU’s philosophy department, argues that narrative closure is not always logically connected to events preceding it, but serves the story by providing emotional satisfaction. He argues that the understanding conveyed by the narrative form of historical discourse “is not an objective understanding of how historical events came about but a subjective understanding of how to feel about them.”

Velleman writes that “[h]aving made subjective sense of . . . events, by arriving at a stable attitude toward them, the audience is liable to feel that it has made objective sense of them, by understanding how they came about.”

The most obvious genre used by judges is the law as achievement narrative, or a narrative in which the characters are on a quest to attain a certain state of things different from where we started. Familiar examples of quest narratives are the Arthurian grail legends and Jason and the Golden Fleece. Most Hollywood blockbusters fall in this category.

In one of the most recent, famous Supreme Court opinions–Seattle Schools, in which the Court held it was unconstitutional to categorize students based on their race, even for purposes of adding diversity to schools in which housing patterns would more or less have meant default segregation–Justice Kennedy began by appealing to the purpose of public education, much in the vein of Brown: “[t]he Nation’s schools strive to teach that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all.” Then he moved to appealing to the goals of the founding fathers: “Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded.  .  .  .  our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain.” Justice Kennedy concluded with an appeal to personal identity, claiming that under the Constitution, “the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin.”

He had an achievement narrative of the individual and of the common law in mind, such that common law should allow for the best opportunity for the citizen. The tradition he describes is one whose main concern is therefore one of achieving the best society possible, which is one in which individuals can flourish, and this requires a prohibition of racial pigeonholing even for the most noble causes. There is an ideal world that the founders and drafters of the Constitution had in mind, and it is the purpose and function of the common law to continue on this quest for a more perfect union–this quest is what gives common law, and the courts, their legitimacy.

Another genre in play is the return narrative. More famous return narratives include The Odyssey and The Wizard of Oz.  Justice Scalia frequently employs this genre. He and other originalists argue that the legitimacy of the common law derives from its fidelity to the original meaning of the statute or amendment. Originalism insists that at a given point in time “We the People of the United States” can “ordain and establish” a fundamental and lasting framework of government, and that the crucial task in any system of constitutional adjudication is to maintain that fundamental law. A necessary bond exists between legitimate judicial decision-making and maintaining the original understanding, such that the closer we are to Ithaca, the better and more legitimate the common law becomes.

One of the most famous examples of originalist interpretation is Scalia’s reading of the Eight Amendment’s prohibition on “cruel and unusual punishment.” In his now famous dissent to the majority opinion in Roper v. Simmons, which held it was unusual and therefore unconstitutional for Missouri to extend capital punishment to minors, Scalia argued that the majority’s argument of evolving standards of decency marking the progress of a maturing society (in regard to the Eight Amendment), would be to “crown arbitrariness with chaos.”

Scalia went on to argue in his Roper dissent that allowing courts to reinterpret the Eighth Amendment “whenever they decide enough time has passed for a new snapshot” leaves this Court’s decisions without any legitimacy, because the “evolution” of our Eighth Amendment is no longer determined by objective criteria. To allow courts to update the Eighth Amendment as needed “destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials.” Scalia concluded that only reasonable interpretation was whatever was considered “cruel and unusual” at the time the Eight Amendment was written.

What makes these cases remarkable is that the Court could have gone about its reasoning in a different way, but it chose to craft a story. The characters are the people of the United States and the judges are the story-tellers, if not from start to finish, certainly of a significant portion in a chain novel. Velleman’s observation about the emotional closure that narrative provides seems correct but troubling when applied to law. One might argue that the fact that one narrative provides more emotional satisfaction than another does not give us any objective reason for believing it, but it might give us a subjective reason for accepting it, all other things being equal.

My hunch is that what the court is doing by employing the use of narrative is reconciling incommensurable values. In each of these instances, and the countless others like them, the Court was presented with genuinely hard cases, pointing in two, incommensurable directions, and the reasoning takes a narrative turn, such that the best completion of the narrative is the decisive factor for the Court’s decision. In Brown it was showing the long-existing importance of education in our nation’s heritage, in Seattle Schools it was the importance of dignity, and in Roper it was about the importance of the past. So instead of balancing the conflicting values in such cases overtly, the Court resorts to telling a story, whether it knows it or not, for the sake of imposing a feeling of closure and legitimacy on a controversial topic. But is telling a tale about the law really what judges should be doing? How acceptable is this practice? That’s another story.

When New York’s crime wave reached its peak in the late 1980s, Life magazine called Red Hook “the crack capital of America.” And it just got worse: In 1992, a devoted school principal here named Patrick Daly was shot and killed. Red Hook residents say that was a turning point; they knew they needed to take collective action. With the help of the district attorney and several judges, they established the Red Hook Community Justice Center, an experimental court people hoped would rebuild a sense of community and maybe turn around a generation of lost youth.

A decade later, it’s thriving. Adam Mansky, the director of operations for the Center for Court Innovation, worked with residents to select a site back in 2000. Everyone agreed an abandoned Catholic school at the center of Red Hook was the best choice—though it took some vision.

“When we first came to look at this building, it was filled with wild animals. There were crack vials everywhere; people had stolen every possible fixture. So [the residents] wanted to see something positive done to restore this space,” Mansky says.

The school has huge windows with lots of light, and high ceilings. The stone façade still has a pair of side doors labeled “boys” and “girls.” Inside, the residents could design a courtroom that cares. Mansky says, “The traditional vocabulary of a court has been things designed to create sense of awe and gravitas by a litigant and respect for the law, things like dark wood, marble.” In other words, they’re intimidating.

The Community Justice Center is still a courthouse. There are cops everywhere. You have to put your things through X-ray scanners to get in. But every room is designed with a touch of humanity, even the jail.

“First and foremost, there are no bars,” notes Julian Adler, the project director. “We use shatterproof glass, and there’s natural light, which you would not find in traditional holding area. There’s a private bathroom with a partition. In most holding areas it’s a public bathroom, which is not ideal.”

No, those bathrooms are usually a hole in the ground.

“It’s still a holding area. You’ve been produced in handcuffs—it’s not an experience anyone wants,” Adler says. “But we try to restore some dignity to the process and to the extent that we can under the situation, treat you like a member of our community and hope that the next time you come to the justice center, you come through the front door, not back door.”

The courtroom also has bright windows, light-colored wood, white walls—and one more important detail. “We consciously lowered the height of the judge’s bench,” Mansky says.

Judge Alex Calabrese loves it. “The judge’s bench is actually lower than most people, so I’m often looking up to people!” he laughs.

Calabrese is a stocky, energetic guy who is street-wise and book-smart. After “Superstorm” Sandy flooded Red Hook, the judge was out in full force.

“I mean, he was out there with the people,” says Albert Barnes, a long-time resident who works at the justice center. “He was going to apartments to make sure people were taken care of. He was checking on the seniors. He came to my apartment to make sure I was OK and my family’s OK.”

I saw that kind of compassion while Judge Calabrese held court. I wasn’t allowed to record in the courtroom, but the Judge let me sit behind him. At one point, he was questioning a woman arrested for heroin. He asked if she wanted to get clean. That question surprised me.

Julian Adler says, “There’s a lot of research on the efficacy of drug courts and other problem-solving courts, and a lot of it does come back to the relationship between the judge and the defendant through conversations like that. It doesn’t surprises me that he intuitively asks those kinds of questions, because that’s what a good clinician would ask in drug treatment. And he’s asking those questions from the bench.”

After half an hour, Calabrese turned around asked if I had any questions. At a loss for words, I asked why he was being so nice. I’m not the first person to ask that.

“Many times, I’ve had defendants come to me after their process and say, I’ve never been treated like this before by police or court officers. Why is everyone so nice?” says Adam Manksy. “And I’ve also had court officers come to me and say, I can’t believe how nice public is, they are always so respectful and aren’t trying to escalate things.”

“The general philosophy here is to treat people with respect, and it goes further than sounding like a nice thing for anyone to say,” says Judge Calabrese. “It helps people be in compliance.”

Compliance is whether a defendant actually follows the judge’s orders. Normally, courts are divided into civil, family and criminal law. Judge Calabrese is trained in all three, which gives him flexibility. Also, in New York State, the age of criminality is 16, which means that teenagers can have vastly different sentences based on a dividing line that can feel artificial.

“So if you’re 15 and 364 days old, you’re sent to family court. If you’re one day older, you’re sent to criminal court,” says Mansky. “The consequences can be very significant, and in fact we’re involved in a large project to divert more of the young people who are in criminal right now, out of it.”

The judge has many services at his disposal. He can send offenders to drug treatment or anger management. For minor offenses like graffiti, disorderly conduct or truancy, the Judge can send teenagers to a non-binding youth court, run by Sabrina Carter. “I got involved because I’m from the Red Cook community,” she explains. She joined youth court at the age of 14 in 2002.

Youth court is held in what used to be the principal’s office of this Catholic school. A petite African-American girl plays the role of judge, administering the oath to a motley group of teenagers. The pledge is this: I solemnly swear or affirm to keep everything I hear during this youth court session to be completely confidential.

This is not your typical after school activity. These kids are real do-gooders. Some of them want to be lawyers when they grow up. “Every role like in a regular court is fulfilled,” Carter says. “We have a bailiff, the judge, jury members that could range from six to eight members, a youth advocate which is a defense attorney in this case and a community advocate which would be like the DA or the prosecuting attorney.”

Today’s case is about a 10th grader who skipped school. The community advocate is a well-spoken girl who argues that truancy harms a school’s reputation. The youth advocate is a boy who never looks up from his notes. He admits the 10th grader has a poor GPA, but she’s working towards improving her record and reaching her goal: to join the Army. The jury questions her for 15 minutes. They adjourn for a verdict, and come back to recommend that she take a motivational workshop.

“Sometimes the kids are like, ‘Whew, you know, great! It’s a different kind of court. It’s a second chance. I don’t have to see real judge,’” says Carter. “Whereas others are like, ‘This is a joke! There are other teenagers, why are they doing to judge me and tell me what I’m doing wrong?’”

But Judge Calabrese trusts them 100 percent. He boasts, “The only proof you need is that their compliance rate, which is a voluntary compliance, is higher than my compliance rate where I can send people to jail if they fail to do what they need to do. Their compliance is over 90 percent; mine is over 70 percent. The traditional court, by the way, is 55 percent.”

Compliance is one way to measure if the community justice center approach is working. Another is cutting down the rate of incarceration. “You know, we’re a country that incarcerates one in every hundred people,” Calabrese adds. “I sent significantly less people to jail here, and yet we hold people accountable. It’s also been shown that when people go to jail at the Justice Center, they actually go to jail longer.”

Community courts are popping up around the U.S. and beyond. A judge in Liverpool, England, actually modeled his court after the one in Red Hook. At the very least, Judge Calabrese hopes he can inspire other courts to take a fresh look at how they work.

“When I was in the traditional court and didn’t have a lot of these services, I found it frustrating because I could take care of the case the legal way, but I knew I wasn’t really getting to the problem that brought the offender to court,” he says. “And unless you get you get to that problem, that person is going to keep recycling through the court system time and time again.”

–

Read more about the Red Hook Community Justice center at the Red Hook Community Justice Center website. You can also read Red Hook Community Justice Center News and Updates.

I’m a straight-up kleptomaniac but I’m thinking I may have found a solution. I’ve become really good at “finding” things recently, like that time I found a wallet in my best friend’s pocket and that time I found $500 in my boyfriend’s sock that he keeps buried in his kitchen drawer. I’m thinking I don’t need to go see a therapist anymore and can just stick to my good fortune as a finder. Do you agree?

Klepto-In-Recovery

Bustedtees.com

Dear Klepto-in-Recovery,

Finders keepers, losers weepers is more than just a children’s taunt like “na-na-na-na-poo-poo,” and “yo’ momma’s so fat”–it’s the law!  Yes, dating back to the time when valuable possessions in life were fox carcasses (true–some law school classes devote a lot of time to the property rights of two hunters who found a dead fox in the woods), the law has had something to say about lost-and-found.

I’m not suggesting you start digging around your house for treasure.  I mean sure, you could one day learn that you sold a house that was literally a gold mine, and it was your sheer laziness and attachment to your gardenias that kept you from living like a mogul.  But you should know when, in fact, it’s OK for you to “find” something and keep it.

Anyone who has ever thrown a party knows the joys—err, responsibility—that comes with waking up the next day and finding a bunch of things that people forgot to take with them.  A sweater.  A scarf.  An iPhone.  Dollar dollar billz.  A photo ID.  Naturally, you are tempted to email your party attendants and ask if anyone forgot anything (other than their dignity).  But before you do, just think (you are probably already thinking this): THIS CAN ALL BE MINE.  And it can, provided you honestly don’t know what is whose, the property has been lost and you’re suddenly a lot warmer for winter and have a great data plan.

But here’s the rub–there is a fine, razor thin line between “finding” and straight-up stealing.

Property is not “lost” when you reach into my pocket and take it from me without my noticing.  And it isn’t “lost” when someone with a second grade degree can figure out who the true owner is (mine hangs proudly on my office wall).  Take the case of the iPhone.  Are you really going to be able to avoid figuring out whose phone is now in your possession, when the welcome screen says “TOPANGA’S PHONE!! <3 <3 <3”?  And much as you may want to keep the photo ID in case you ever need to flee the country under a false identity, you can’t really get around the fact that you know who it belongs to (although, as a fugitive, petty larceny may be the least of your worries).  But with less personalized goods, like umbrellas, and outerwear, and cold hard cash, your only responsibility is to reasonably try and find out who it belongs to.  Fortunately, what’s “reasonable” is really a fairly squishy idea.  I think it’s perfectly reasonable to email your attendees in the dead of night when they’re less likely to notice.  Perfectly reasonable to use addresses @hotmail.com that are likely long-expired.  Incredibly reasonable to write the email in Klingon font:  ta’ta’ SoH mej lIj Huch Daq wIj tuq.

The law also makes a distinction between “lost” and “mislaid” property.  Lost property is stuff that the loser (in the legal sense) is never likely to see again–maybe you found something on the side of a highway when you pulled over to relieve yourself.  But we all (especially the absent-minded among us) occasionally put stuff down, forget about it, and then immediately remember and go back for it.  Flaky people deserve property rights too. And the law protects us flakes; it generally does not allow the “finder” to keep the property, but rather the owner of the location that the property was misplaced.  This makes sense, since that’s probably the first place you’re headed to once you remember where you mislaid your possession.

But Klepto-in-Recovery, remember, being right in the eyes of the law isn’t going to save you from social stigma.  Let’s never forget that keeping things that you find can lend itself to the most awkward of encounters.  “GOSH THAT ______ LOOKS FAMILIAR….”  Best thing to do when living a “finders keepers” lifestyle is to “find” generic things that you could have plausibly bought yourself, like anything from Costco.  Avoid items with embroidered initials.  Generally avoid things made of gold or diamonds, people tend to miss them more.

KIR, it really does seem like you’ve learned that one man’s garbage is another man’s treasure, just make sure his “garbage” isn’t inside his apartment or on his person.  Alternatively, see next week’s column on “Breaking and Entering: When the Robbery Isn’t Just a Jersey Shore Slang Word.”

P.S.–If you’re reading this, you’re invited to my house for a party this weekend…..especially if you have a generic, both-sexes name and hate paying for things by credit card.

Love,

Luci Lawless

Note: This column is titled “This Does Not Constitute Legal Advice” because it does not constitute legal advice. If you want that, please see an attorney.

Furries at wedding

On February 4, 2013, our lawyer put this piece of paper in front of me.

I don’t entirely understand why our marital status was included on the deed.  With regards to the to the purchase of this house, we are business partners who are making an investment in property. The fact that we will be sharing one of the bedrooms doesn’t affect the value of the house. But when our lawyer slid the deed across the table I finally felt the happiness that the stress of the bidding competition, low-tech inspection, endless checks and the emotions and antics of the banks had pushed aside. Two summers ago I committed to a partner, two weeks ago we committed to our next adventure together.

Let’s start at beginning–how did you think of this? 

Patrick was a first-year student at Vanderbilt and I was an admitted student. I was deciding between Vanderbilt and Cornell and it was about: who’s going to put me in a job that I want? Vanderbilt provided the entire prospective student body with this employer spreadsheet–a list of where all their 2007 grads went to work. Patrick and I started asking why don’t other schools do this? We started researching and kind of uncovered a big problem. They were actively keeping it from people.

We spent the next year–my first in law school and his second–talking about this. Then in January 2009 we bought the domain name and I started working on the website. We incorporated in July and in August started working on a paper that ended up being 80 or 90 pages long. The paper let people know we had serious ideas and weren’t just complaining.

On top of that, the economy was crashing–which had nothing to do with us–but we were there at the right time. I think it was Rahm Emanuel who said never waste a good crisis. It’s a phrase we’ve been using internally for years.

As more people come to agree that legal education is too expensive and misleads prospective students about job prospects, there seem to be as many ideas about what to do. What do you make of the debate?

It’s a giant puzzle. These are extremely complex institutions that reside inside other complex institutions–university systems, then you have the ABA accreditation standards layer, the student loans layer, and the self-regulating legal profession layer. On top of all that, you have a society that depends on lawyers. You don’t want to change something without thinking about how doing so is going to affect the other areas. For example, as law schools bring in less money, they’re less of a cash cow for universities. This is not bad or good necessarily but needs to be considered.

Ultimately I think transparency is the grease that makes the wheels turn, if that’s the phrase.

Do you have a favorite model of what law school should look like?

I love the Modular Law School model. It facilitates getting nontraditional teachers, who we call adjuncts, into the classroom and shortens the course span–a bunch of short courses that are one or two credits each. You get the length of education down a lot and less expensive people into schools to teach practical skills. These are people who are practicing–not just lawyers but accountants, journalists…

The general idea is to allow schools to structure instruction around faculty that can more cheaply provide labor. I don’t think the quality would take much of a hit, if any. And quality can take a hit if it means taking the cost down 60-70%. That raises the question of who measures quality, which the profession has to take part in defining.

There are barriers to implementing this model, of course–[professional] accreditation standards and long-term contracts. It’s actually best suited for a new school that pops up. This is a 10 year challenge, not 3. We could see 25 new public schools pop up in next 10 years that do a great job and cut into the market of current schools, making it a challenge for them to survive, and I think that would be a good thing. Different doesn’t mean less quality. It just means different.

Washington State recently adopted a program that authorizes non-attorneys to provide legal assistance in certain areas of law, and it kind of reminds me what you’re describing–it creates an alternative course outside of the traditional institution rather than trying to reform what already exists. What do you think of it?

I think it’s really interesting. That’s adding to your army. It’s adding another kind of paralegal.

When will you be out of the job because there’s nothing to work on anymore?

I hope 5 years, 10 years? Part of the problem comes from our culture–few parents will say, I can’t believe you got into law school, that’s terrible! They all view it as this important thing that indicates you’re really smart. And it does indicate that you’ve had success and are probably smart, but we’re not going to have a fully informed market for a decade or two. It’s too embedded as a cultural idea.

But the other aspect we’re concerned with is affordalibiity. To say I have access to a legal education is missing something if access doesn’t account for affordability. If it costs me $200k, that’s not access. Yes, you can get in the door, but you’re graduating up to your neck in debt, and that’s going to impact your ability to have a family, have kids, have a retirement. I think that’ll change in 3 years. I think we’re going to see student loan reform that’s going to cut off the force of unlimited funding, and we’re working on that, because law schools have a blank check from the federal government to charge as much as they want. They’ve shown no fiscal responsibility or fiscal restraint, and they don’t deserve that blank check anymore.

Are you still doing this for free?  

I don’t have a salary as of now. But the LST Board is about to vote on a salary for the first time. Otherwise it’ll have to be a hobby again. It’s been a full-time job for a few years now.

What project most excites you right now?

Something I can’t talk about, yet. But the other stuff is student loan reform and the LST Score Reports. US News [& World Report] has such terrible effect on students decision-making. The more we can cut into that, the better.

For more on how potential changes to legal education could affect litigants who need representation, check out Kat Aaron’s writing on people in court without lawyers. 

February 18, 2013

Dear President Obama:

I’m writing to you from beautiful Sydney, Australia, a city as diverse as New York, as beach-happy as Los Angeles, and as historical as Washington, D.C. But when I hear a dozen languages spoken in a single block, it makes me miss the waiting room in the Marriage Bureau of the New York City Hall. When I watch the surfers coolly riding their perfect waves, it makes me long for the beach grass of North Carolina’s outer banks. When the Opera House swoops skyward around me, I think of the Washington Monument soaring beside me as I listened, freezing and invigorated, to your 2009 Inaugural address. I love this city, but it is not my home.

I’m a Charlotte, North Carolina native, but I had to miss your visit there during September’s Democratic National Convention because my partner, Jodi, an Australian without permanent residency in the U.S., had to leave the country lest she overstay her visa. I’m a certified high school teacher with a Master’s degree, but I’m not teaching in America because Jodi cannot live and work there.

Today I’m celebrating 9½ years of being with Jodi. Though we’ve “felt married” for a long time, we finally made it official last October in New York City Hall. I voted for you on November 6th (Jodi wanted to, but can’t as a non-citizen), and we listened with tears streaming down as you said, “it doesn’t matter who you are or where you come from or what you look like or where you love. It doesn’t matter whether you’re black or white or Hispanic or Asian or Native American or young or old or rich or poor, able, disabled, gay or straight, you can make it here in America if you’re willing to try.” We were so proud of you for including us in your speech, but also so sad—we have done nothing but try for nearly a decade, and we have not been able to make it in America.

Two weeks after that, we left for Australia, because despite being married in our own eyes and in those of the state of New York, I cannot sponsor Jodi to immigrate because the federal government doesn’t recognize our partnership. Other than the minuscule odds of winning the Green Card Lottery, there is simply no legal method for Jodi to obtain permanent residence in America.

We’ve learned the hard way, over 9½ years, that “feeling married” is not enough, and, sadly, neither is actually being married. Over the course of our partnership, I estimate that we’ve spent at least $75,000 to stay on the legal side of the immigration system:

• approximately $7,000 on U.S. visas for Jodi
• approximately $40,000 on travel for both of us between our two countries, and to other countries when her time has run out on U.S. visas
• $25,000 in tuition at international student rates for her to stay on a student visa
• and, finally, $3,000 on my application for permanent residence in Australia when we ran out of options for staying in the U.S.

This is $75,000 that we didn’t save, didn’t spend to boost the flailing American economy, didn’t put toward buying a home or investing in retirement, and didn’t donate to worthy causes. Being shackled by the constraints of America’s outdated immigration system has further meant that we have not advanced as much as we otherwise might have in our studies or our careers, and that we have almost always been a single-earner household, a financial loss I can’t even begin to calculate. It has meant that we haven’t been able to start a family—not wanting to bring a child into a household (much less a world) where one of her parents was not legally able to live or work in her country full-time. It has meant that I have forgone career choices that might otherwise have appealed to me—for example, participating in the Peace Corps, applying for the U.S. Foreign Service, or teaching in Department of Defense schools—because not only would my partner not receive the benefits that other spouses do, but she could not accompany me on these postings—the Peace Corps is not open to non-American citizens, and all three include only legally recognized spouses in their relocation packages.

Ironically, Australia, which doesn’t allow same-sex marriages at all, still offers all the benefits of marriage to same-sex and unmarried heterosexual couples. This makes it the only country in the world in which Jodi and I can live together and both legally work. And yet, in many parts of Australia, it is still perfectly acceptable to refer to indigenous people by the N-word and other slurs, to declare one’s hatred of non-white immigrants, and to freely voice one’s misogyny and homophobia. If I contribute positively to Australian society for two years, I can apply for citizenship. I am grateful to my adoptive country, but in truth, even after it has turned its back on me and sent me into exile, I love America more.

Calling myself an exile may sound melodramatic. I know that I don’t have it as hard as some. I am educated, middle class, and healthy. I will always be able to find work, and I have a supportive network of family and friends. But this is my life—the only one I get—and I don’t want to have to spend it far from home.

President Obama, I know you are on our side. Your recent speeches have shown me that; they have been glimmers of hope that America is still the great country I grew up thinking it was. I have faith that you will do what you can in your next term to end the legalized discrimination in America that we both abhor so much, and allow me, and Jodi, and so many others, to come home.

Please don’t let us down.

Sincerely,

Katherine Thompson

Katherine Thompson lives in Australia with her wife Jodi. She will be contributing an ongoing series of posts on her experience navigating U.S. immigration law. 

If you are like me, you love the American political drama. I remember religiously watching THE WEST WING with roommates in college and law school – dreaming of future days with Sorkin’s racehorse -tongued characters with their bouncy walks and high-minded ideals. Yet, looking back at the show’s pilot, which aired in 1999, the writing shows its age. Enter here Kathryn Bigelow’s  ZERO DARK THIRTY and the Netflix’s recently released HOUSE OF CARDS. These two political dramas proffer current, critical revenge narratives about American political culture that are new to American story-telling, harkening back to the 1970s malaise that produced All THE PRESIDENT’S MEN and THE CANDIDATE and taking the story a step further.

Bigelow’s ZERO DARK THRITY is easily the most important movie of the year, even if it is not the most popular. Much has already been said about the films artistic merits, from Jessica Chastain’s (THE DEBT) performance of a female CIA operative to Bigelow’s (THE HURT LOCKER) preoccupation with depictions of violence in film, a theme she has been committed to since her Master’s thesis at Columbia. ZERO DARK THIRTY’s graphic depiction of torture has ignited controversy and criticism from several U.S. Senators, including John McCain and Dianne Feinstein, who argue that Bigelow’s story promotes torture and tells an inaccurate account of how the ill-gotten intelligence was used in the most famous manhunt of this century. Although it is true that the film begins with a torture scene and ends with the capture and killing of UBL, the film is deliberately ambiguous about the ties, if any, between the two. Moreover, the controversy over its depiction of torture is misplaced. As Michael Moore has rightly pointed out, the film “will make you hate torture” and, I would suggest, hate the leadership that allowed us engaged in it. The film is not a story about how to capture a terrorist; it is a story about America’s response to a terrorist attack and how this response changed us profoundly.

ZERO DARK THIRTY is an American revenge story, which is in itself remarkable. America, up until now, has not been the protagonist in revenge stories.  We have been heroes (BLACK HAWK DOWN) we have been victims (PEARL HARBOR), we are accustomed to being saviors, (SAVING PRIVATE RYAN) but the posture of American revenge is new and worth looking at closely. ZERO DARK THRITY begins with a black screen over which plays the 911 calls of victims in the twin towers before they fell. It then cuts to a CIA black site where Maya, the film’s young, female protagonist , is at her first day of work as a U.S.-trained torturer. In the beginning of the film Maya is a young soldier following orders, orders that change once the Obama administration steps into office. She becomes a champion of revenge through the personal loss of a trusted friend and colleague to Al-Qaeda, and experience which transforms her into a woman obsessed with revenge to the point where, as one character puts it, “it’s her against the world.” Maya’s revenge story becomes an allegory of American power: she has no friends, no lovers, no home no work beyond the quest to capture and kill UBL, which is why the last image in the film – that of Maya as a plane’s loan passenger with no destination, is so poignant. “Where do we go from here?” is the question that looms once revenge is achieved.

By contrast, Netflix’s HOUSE OF CARDS is a dance with Machiavelli through the labyrinthine halls of American politics.  An original series produced by Netfilx, which poured a reported $100 million into the production, the show is a series developed by Beau Willimon (IDES OF MARCH), who worked on Capitol Hill before and after his MFA in playwriting from Columbia.  David Fincher (SE7EN, FIGHT CLUB) serves the series as an executive producer and also directed the first two episodes. The show is an adaptation of a previous BBC miniseries of the same name, based on the novel by Lord Dobbs. The entire first season premiered on February 1, 2013 exclusively on Netflix and a second season is currently in development, marking a paradigm shift in serial content distribution that has HBO and SHOWTIME nervous, and rightly so.  Offering some of the most scintillating writing on television: “He wants to rip my head off and peel it like an orange” and “ I love that woman. I love her more than sharks love blood,” it also provides a strange and remarkable shift in the American political drama.

HOUSE OF CARDS has been called the best in its genre since THE WEST WING, yet the differences could not be more striking. Kevin Spacey stars as Francis Underwood, a southern congressmen and the House Majority Whip who has been unceremoniously passed over for a promotion to Secretary of State. The story begins when Underwood decides to exact revenge on his enemies – with the help of his icy Lady Macbeth of a wife played by Robin Wright (THE PRINCESS BRIDE). The cast of characters are mere pawns in the hands of Underwood – a political animal extraordinaire. The President is a vain man controlled by a Midwestern billionaire, Congress members are easily cowed, blackmailed or bought off, and everyone down to the chauffer is self-interested and therefore made predictable in Underwood’s game of chess. Yet, what is most seductive about the show is Willimon’s use of the direct address. When Spacey turns to the camera and speaks to you, you feel you are getting private tutelage from the devil himself. Unlike political dramas of the past, HOUSE OF CARDS is completely void of idealism – one could even say that it is nihilistic –  and yet it is still extremely satisfying. Why? In the wake of the financial crisis and the void of governance surrounding the fiscal cliff how could Americans find pathos in anything but precisely this kind of story?

Francis Bacon called revenge a kind of “wild justice” but cautioned that it caused the most injury to the ones who seek it. What can we learn from the advent of the American revenge narrative?  First, it teaches us that revenge is inherently a reactive posture: the pursuit of power in a revenge story is a conspicuous sign of its perpetual lack.  Moreover, the source of value in a revenge plot is the same thing that must be destroyed so, once this act is achieved, the source disappears and we are left with nothing. In ZERO DARK THIRTY, this leaves us without a destination and alone. In HOUSE OF CARDS, it corrupts the soul and the souls of those around us. Second, revenge is always morally ambiguous. It is, bluntly put, a far cry from the Sorkinean walk and talk of yesteryear and the high-minded, self-indulgent preoccupations of the 1990s. (Doesn’t a White House sex scandal seem quaint, even comforting, when compared with the problems facing us today?) This tells me that the American moral palate has matured, and so has the story America tells to itself about itself. Third and finally, the American revenge story is one that offers us illumination: it tells us who we are even in the darkest corners of ourselves, how we got where we are, and, with hope, helps us figure out how we can make ourselves better.

Anne Hamilton is an attorney and a filmmaker. She holds a J.D. from Yale and a Masters degree from Stanford. She got her start in film as an intern on Terrence Malick’s The Tree of Life and has worked on several projects since.  She lives in California.

Beyond the tears, securing a mortgage was the single largest obstacle between our lives as renters and our next lives as homeowners. We chose a reputable bank that was referred to us by our seller’s broker (also a bank whose name features prominently in a 1957 Meredith Wilson musical that I also happened to star in in my senior year of high school) (not that we chose the bank for this reason but when we left a meeting with our broker I did whisper to my husband that it was “a sign”). Our future lay in the hands of the man who wrote this email:

And yes,

con·gen·i·tal, adjective

Present from birth (esp. of a disease or physical abnormality). 

That  is not a loan. Our mortgage broker “left the bank” shortly after this error.

Yesterday my husband received an email from our former broker’s replacement which included the entire mortgage application of a stranger, including all of said stranger’s personal and financial data.

This bank is Trouble with a capital T.

Recently, several states have passed legislation decriminalizing the possession of _______. Of course, federal law continues to treat possession of _______ as a crime punishable by prison time. Please write a memo outlining the policy arguments for and against continuing federal enforcement of the _______ ban in states that have legalized its possession, and concluding with a recommendation either for or against continued enforcement.

What would you recommend?

Does it depend on what _______ is?

The issue of whether and to what extent the federal government should enforce prohibitions that conflict with state law is highly relevant these days. In case you haven’t heard, last November, Colorado and Washington became the first states to legalize recreational marijuana possession, and 16 other states and the District of Columbia have legalized the drug for medical purposes. But marijuana continues to be illegal under the Controlled Substances Act (CSA), which Congress passed in 1970, leaving many people confused about what happens when states and Congress disagree.

The basic legal issues are actually pretty simple. In theory, what states do with their drug laws has nothing to do with federal prosecutions. Because federal law is supreme under the Constitution, state laws that conflict with it are preempted– if the feds want to prosecute you for something that’s legal in your state but forbidden by Congress, they can; you can’t hide behind state law. And since it’s unconstitutional for Congress to force state and local law enforcement officials to do its bidding, federal law is carried out by federal agencies like the FBI and the DEA.

What that means–again in theory–is that the legalization of medicinal or recreational marijuana possession in a growing number of states shouldn’t have any impact on prosecutions under the CSA.

But in practice, federal prosecutors and agencies have limited resources, and they have to use discretion in deciding what kinds of cases those resources should be applied to. One factor that understandably influences these discretionary decisions is state legislation, especially when it is passed directly by the people in the form of ballot referendums, as in Colorado and Washington.

In 2009, the DOJ seemed to adopt a position of deference to state legalization efforts. A memo sent by Deputy Attorney General David W. Ogden advised federal prosecutors in states that permitted medical marijuana that they “should not focus federal resources… on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

Pretty straightforward, right? Well, not exactly. Although that portion of the memo seemed to announce that the DOJ would no longer be prosecuting medical marijuana users and suppliers in states that had legalized the drug for that purpose, other sections stressed that marijuana was still illegal under federal law, and that U.S. Attorneys retained the right to prosecute, notwithstanding state law. In fact, in the years since the memo, some marijuana dispensers who thought they were safe based on the “clear and unambiguous compliance” clause have found themselves subject to prosecution. In Washington, which even before last November had legalized medical marijuana, the U.S. Attorneys advised the state government against facilitating the establishment of dispensaries, warning that they would bring cases against people involved in the medical marijuana system “even if such activities are permitted under state law.”

The result is that some people face serious prison time for doing something that they had a pretty reasonable expectation wouldn’t get them in trouble.

I’m guessing your reaction to all this probably correlates with your political leanings. If you’re a young, college-educated liberal, you might think marijuana is pretty harmless and that at any rate, if states have decided to legalize it, the federal government should leave them alone. On the other hand, if you’re a social conservative (and not a diehard federalist or libertarian), you might oppose letting liberal states like California and Maine undermine our national drug policies. (Fifteen of the eighteen states that have legalized medical marijuana went for Obama in the last election.)

Let’s go back to that memo assignment. What if we filled in the blank with something other than marijuana—say, machine guns? Suppose the Texas legislature decides to legalize them. (Believe it or not, machine guns, which Congress outlawed in 1986, are also banned by the Lone Star State.) Would you want the DOJ to keep prosecuting Texans who violate the federal ban? Is that the same answer you’d give in the marijuana example?

Support for “states’ rights” is usually cast as a conservative position, but the issues of marijuana legalization and gun control are useful reminders that for most people, it’s hard to separate feelings about “states’ rights” from the particular substantive rights being vindicated. For example, in recent decades, the NRA has been happy to use its influence to undermine state gun limitations by pushing pro-gun legislation through Congress. But as my friend Sam Kleiner writes in The Nation, now that Congress might actually be willing to pass a gun control bill, the NRA is furiously recasting itself as a champion of states’ rights. The liberal embrace of state autonomy on the marijuana question, while perhaps less cynical—because no one tops the NRA—is a similar example of selective federalism.

In the 2005 case Gonzalez v. Raich, the Supreme Court upheld Congress’s ability to criminalize possession of home-grown medicinal marijuana under its power to regulate interstate commerce. Antonin Scalia and Anthony Kennedy joined the majority, despite having agreed ten years earlier, in United States v. Lopez, that the government lacked the authority under the interstate commerce power to ban possession of guns in school zones. It doesn’t take extreme cynicism to suspect that they were a little less sympathetic to marijuana users than to gun owners; Scalia in particular tied himself in knots trying to explain the difference.

In dissent, Sandra Day O’Connor mounted a spirited defense of Louis Brandeis’s idea that a state should be able to “serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” She argued that even though she thought California’s medical marijuana law was a bad idea, the state should be left to “come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering.” When I first read that dissent, I remember thinking, Wow, federalism makes so much sense! But then I realized that the “laboratory” idea only sounds smart if you start with the assumption that the idea being tested isn’t really dangerous. In other words, letting states experiment with drug legalization only appeals to me because I’m confident they would prove that it’s way better than our current laws. On the other hand, I wouldn’t be that excited about letting states “experiment” with legalizing machine guns or armor-piercing “cop killer” bullets—not because I think guns are inherently more “national” than drugs, but because I think they’re dangerous and weed isn’t. Of course it’s circular reasoning to say that state experimentation is only okay when a policy isn’t harmful. The point of legislation like the CSA or the Gun-Free School Zones Act is that sometimes we decide, as a country, that some stuff is harmful, and we don’t want anyone to experiment with it.

Part of the liberal appeal of congressional action is that it allows us, as a nation, to protect the interests of vulnerable groups in other states, like blacks in Mississippi or inner-city teens in Indiana. It’s not unreasonable to think that the DOJ should quit prosecuting people who are complying with state marijuana laws, but holding that belief means being comfortable with the right of the executive branch to let states opt out of national legislation that it doesn’t support. What if states could opt out of things like the Civil Rights Act or the Age Employment Discrimination Act? What if a Republican Attorney General advised prosecutors not to enforce any federal gun restrictions?

As harmless as I think marijuana is, I can imagine some pretty scary outcomes if states could unilaterally legalize things that the whole country, represented (roughly) by Congress, has decided are dangerous. That doesn’t mean I want people going to federal prison for marijuana possession, but it might mean that we shouldn’t expect the states, or the DOJ, to solve problems of Congress’s making.

Gilad Edelman is a student at Yale Law School. He has also been known to play a bit of jazz saxophone. 

Photo credit: Seekingalpha.com

The jail complex here is roughly four square blocks in size. It houses roughly 15,000 people, which is about the size of a medium-sized American city. It is all filled with people who are charged with crimes or are serving sentences of 365 days or less.

Erbring’s office represents most people jailed and convicted here. Over the past decade, that’s nearly 220,000 people–enough to fill Chicago’s largest sports stadium, Soldier Field, more than three-and-a-half times over. On any given day, roughly 9,500 people sit in Cook County jail. Most are in limbo, waiting for their cases to wind through the courts. Critics call this place a “felony factory.”

One of the few breaks inmates get are when their cases are called up for some kind of review. Then they’re taken through the maze of tunnels that connect the jails to the courthouse.

At the start of the day here, I follow Erbring’s partner Peter Benesh to the place where public defenders meet many of their new clients, the “lockup.”

The lockup area is a 10- by 20-foot cage with steel bars around it. There are usually two next to one another, and both are usually filled to capacity, which means 40-50 people in each lockup.

When you walk into the lockup, one of the first things that you notice is the loud echo of voices. The inmates here are chatty and excited, and their voices bounce off the concrete floors.

Erbring’s clients have usually been living in the court complex for weeks by the time he meets them. They’ve been through bond court, felony review and arraignment. Still, Erbring says he doesn’t usually have much more than a file folder with an arrest report to go on when he meets many of them. And the most important thing in that folder? It’s usually the prosecutor’s offer.

The offer is how much the client’s sentence can be reduced if they plead guilty instead of arguing their innocence in a jury trial.

“If the prosecutor…writes down an offer, which often they do on cases that don’t involve serious violent offenses, the next thing that we tell them [is that] the state made this offer,” Erbring explains. “If you look at this from a client’s perspective, we are giving them bad news, then we’re giving them more bad news, then we’re telling them what would happen if they plead guilty.”

Typically, the next time Erbring sees his clients is in the courtroom, which is just down the hallway from the lockup.

Erbring describes Courtroom 602 as “one of those rooms that you may have seen in a movie.

“It’s a big formal courtroom as opposed to these small rooms that we refer to as fishbowls,” he says.

The pace on a typical day can be dizzying. Within 30 minutes, 12 defendants are called to the bench. Erbring or another public defender represent seven of those called.

The hearings are short. Within three minutes (usually less), the clerk has stamped the case file, the judge has set the next court date, and a deputy has whisked the defendant back to the lockup.

“This goes on month after month,” says Locke Bowman, the head of the Roderick MacArthur Justice Center, a legal clinic at Northwestern University. “The jail is not an attractive place. It’s not a pleasant place to be confined. Folks are separated from their lives, from their families, and pressure builds to get out. To find some kind of resolution.”

Bowman and others say it’s not just those behind bars who want the cases resolved. The public defenders have so many clients, they need to keep things moving.

“The attorneys are hardened to the worst kinds of cases,” former Cook County public defender Leonard Cavise says.

“I remember this happening to me. I remember clients telling me, you know, the cops beat this confession out of me. It isn’t that I had a ho-hum response, but I’d heard that many times before,” Cavise recalls. “Or a person would say to me, ‘I’m innocent! I’m innocent! I want to go to trial.’ And my response would be, ‘Fine, you want to go to trial, you can go to trial. But there’s a terrible risk associated with going to trial. That’s what we call the jury tax. You’re going to get punished a whole lot more severely.’”

So you have attorneys under pressure to close cases, plus antsy clients; Cavise and others say this is why most cases never make it to trial.

Public defenders don’t write the laws. They’re doing their best to find a workable outcome. And nearly eight out of 10 times, they say, that outcome is a plea bargain. A plea bargain is when a defendant takes the offer I mentioned before. The bargain is that they plead guilty, and in exchange their sentence is reduced. But they are also agreeing to a permanent criminal record, instead of convincing a jury of their innocence and being released.

Plea deals are criticized because they’re awfully convenient for the overloaded court system. But public defender Peter Benesh says they’re not always bad, and he insists they don’t point to weak lawyering.

“There are a lot of cases where I have put in every bit as much time on a plea as you would on a trial. And what you’re trying to do is get the best result for your client. And to that end, oftentimes the best result for your client is limiting their exposure [to a harsher sentence],” Benesh says.

Lawyer groups, like the American Bar Association, have been critical of the caseloads that public defenders have to carry. They say that it slights justice. In a perfect world, caseloads would be capped at 150 per year.

A handful of public defender offices across the country have taken a stand against the caseloads over the past few years. Some places have responded by setting new protections, like caseload standards. In other places, the courts have simply forced public defenders offices to take more cases.

Erbring has little hope that public defenders offices will get more funds to hire enough lawyers and investigators. “How do you convince taxpayers and legislators to properly fund an office like ours when most people believe that what we do is represent guilty people—criminals?” he asks.

The attorneys in Courtroom 602 aren’t exactly keeping score on how many cases they get. According to Cook County’s recent records, each attorney working in a felony courtroom took an average of 236 cases a year.

In the eyes of former public defender Leonard Cavise, Cook County’s system is designed so bureaucracy beats justice: across the courtroom aisles, prosecutors, defenders, and judges all struggle under the same crushing load.

“They have to work so carefully together on plea bargains [and] they have to make a lot of deals with each other: ‘I’ll give you two years in this case, but I want you to give me in that other case, give me the four years that you promised me or that you said that you would think about in another case,’” Cavise says.

“Yes, we like to say in the United States that we’re in an adversarial system where the defendant has all these rights, including the right to a trial by jury, or a right to a trial by the judge…That’s all a lot of bologna,” Cavise believes.

While Erbring isn’t exactly quick to defend the status quo, he says that public defenders in Cook County give their clients not just an adequate defense, but an exceptional one.

“Most public defenders are willing to go further in most cases than other attorneys in trying to find some way to get their client a better outcome,” Erbring says. “That doesn’t always mean finding that last witness who’s going to be the linchpin witness for them and find them not guilty. But it means digging deeper and finding out more information so their client can have better opportunities.

“And I don’t think anyone does that better than public defenders,” he says.

-

Read Angela Caputo’s recent piece for the Chicago Reporter: “Swallowed by the System”

Read more about the Cook County, Illinois Justice System: Guide to the Criminal Justice System

You got perilously close to actually talking about how to set up a company last time, without saying much of anything in particular.  Care to follow up? I’m not terribly interested in stew like that last guy, but my friend and I have a great idea for a board game and want to set up a company to start producing it.  We’re going to call it WarBoats, to try to capitalize on the inevitable Battleship movie sequel.  I’m thinking we should set up an LLC, but I don’t know how to go about it! Please help!

- Incorporator At Sea

Mr. Incorporator,

While I’ll pass for now on the merits of your concept, let alone the pronounced probability that you’ll find yourselves on the receiving end of some very fun, very convoluted legal actions courtesy of Hasbro and/or Rihanna [i], I’m happy to help you limit your liability when that nice lady at the bus stop turns out to be a process server.  The limited liability company, or LLC to its friends, is a form of business entity that combines a “traditional” corporation’s limitations on liability with the flexibility of a “traditional” partnership.  Generally speaking, it’s the most popular, and probably the best, choice of entity form for most small businesses.  And whatever that friend of your uncle who’s been a senior partner at a law firm since 1925 [ii] says, it’s hardly that novel anymore.

First, a word (or 281) on corporations.  While the very, very first corporations sprung up either (a) to mine the quarries of Bedrock and provide a fun workplace setting for Fred Flintstone’s wacky antics or (b) during the Roman Empire [iii], the history of the modern corporation probably starts with the British East India Company and its suspiciously-similarly-named competitor the Dutch East India Company.  These enterprises were established under charters granted by the state to explore far-flung lands, discover new types and sources of commodities, boldly go somewhere, and exploit the hell out of indigenous people and ecosystems in the name of profit.  So, pretty much nothing has changed since 1602 [iv].

The defining characteristics of a corporation are that (a) it can be owned by one or more people or other entities, as its “stockholders,” (b) it is a separate legal entity from its owner(s) having an unlimited life [v]– i.e., it continues to exist even if the people who own all or part of it do not, and (c) that it affords its owners protection from the risks and liabilities of the business.  For example, if a corporation owns a pet store where a marmot jumps out of its tank to bite someone, the corporation’s stockholders aren’t likely to be on the hook in the resultant lawsuit just for being stockholders (naturally, it’s a different matter if one of them was training said marmot in the art of combat or otherwise contributed to the vicious rodent attack).

Nice Marmot, Inc.

You may remember that I mentioned partnerships as well.  Partnerships can be formally established, with some limitations on liability available, or they can just… sort of… well, happen [vi] when people engage in an enterprise together; the key positive feature of partnerships is that they are “flow-through” entities for tax purposes.  That is, partners are taxed on their share of the partnership’s income whereas a corporation must (generally) pay taxes at the corporate level as well as on any distribution [vii] of income/profit. With an LLC, the default is that the members (the rough equivalent of stockholders or partners) are taxed as if they were partners (though you can choose to be treated as a corporation by the IRS).

There are literally millions of pages that can be and have been written on this stuff, by people far smarter and more boring than me, so let’s accept that the maker of WarBoats will be an LLC and move along.

In order to form an LLC, you need to first make the choice of where you’re going to form it.  Delaware is very popular among corporate lawyers, for a variety of reasons that have sadly little to do with the natural splendor of Cape Henlopen State Park, and has a very simple formation and maintenance process–fill out a Certificate of Formation [viii], pay $90 and file it, remember to pay a tax of $250 each year and maintain a “registered agent” with a physical presence in the state.  If you’re fortunate enough to not live in Delaware, you’ll probably have to register your business in your home state as well, which involves more taxes or fees and some other requirements [ix]. Next, set out the ground rules in your “Operating Agreement” or “Limited Liability Company Agreement”–a document which will govern how the members deal with each other and how the company is run [x], whether by members directly or “managers” (which you might need to specify in your formative document). (For a pretty decent example, see http://www.docracy.com/7128/llc-operating-agreement. Docracy is a pretty solid repository of free legal documents in general.)  You’ll be off to the regatta in no time.

You’re gonna need a bigger boat,

Li’l Tommy Hagen

Law school applications near a 30-year low. Is the profession about to change dramatically?

New York Chief Judge Jonathan Lippman called to overhaul the state’s bail system in his 2013 State of the Judiciary address, noting that it’s stacked against poor people who commit minor crimes. How will the legislature respond to his call?

Can a Louisiana man with a summer home in New York get a gun license in New York, even though it’s not his primary residence? It’s still up for grabs after Justice O’Connor weighed in.

Jonathan Coulton’s dispute with Fox over use of his arrangement in Glee took an interesting turn. What could this mean for copyright law?

This interesting concept has given me the opportunity to delve into the life of a man who has presented strong evidence showing someone else committed the crime that he’s in prison for. The evidence includes the fact that the real perpetrator has come forth and has told a judge, “I’m the real criminal.”

Followers of Life of the Law and San Quentin News (February edition) will be privy to Guy Miles, first hand, by going into his case and interviewing him. (Use the comments section below to ask any question you like, and we will get them to him.)

I sat with Guy yesterday. Guy has been in prison since 1998 for a robbery he says he didn’t commit. He’s serving a sentence of 75-years to life. The details of how he was convicted are not really that interesting, but Guy’s a black man. (It’s easier to get convicted in any court in America for that simple fact–being someone of color.)

A number of years into his sentence, Guy happened to bump into the real robber. The encounter went really well for Guy. The real robber, who he named, signed an affidavit giving details about the crime well enough for The Innocence Project to pick up the case. So, we’ve got Guy demanding his freedom, sayin’, “I didn’t do it–lemme out!”

The Innocence Project does its thing, piecing together this fact and that person, so on and so on. The case really looks good, the confession and all. So all this info is presented to court. But the judge says, I don’t believe any of the stuff you’ve presented.

If and when all reason shows something is what it is, do you follow reason, or do you follow the law? There’s a saying in the realm of legal scholars: “It may not be fair, but it’s legal.”

This year California taxpayers will fork over $8.6 billion to incarcerate about 120,000 people, while a mere $2.7 billion will go to K-12 education. Is there something wrong with that picture?

Let’s assume our prosecutors and courts are 99.5 percent accurate they’re getting it right. Law-abiding citizens could rightfully conclude that a judicial system that’s 99.5 percent accurate is a really good system. How can someone criticize any system where there’s a less than one-half of one percent chance of error? That being said, that means there are 600 people in California prisons who are innocent of the crime they’re convicted of. But what if it you were included in that 600 number? Or it happened to be your brother, sister, mother or father? Think about being imprisoned for decades, but you’re not the guy! How would that make you feel?

Juan Haines is an inmate at San Quentin State Prison. He is Managing Editor of the San Quentin News and works as a jailhouse attorney.

Photo credit: Dalje.com

I am eight months pregnant with twins and married to the most amazing man I have ever met (on the internet). I am so grateful to JDate for introducing me to my husband that I want the world to know it forever, or at least until my offspring pass. Can I legally call my baby boy JDate.com? I’m thinking of naming his twin sister FatFace.           

Mommy to Walking Advertisement

Dear Mommy to Walking Advertisement:

Good news if you live in America, land of the First Amendment! We here in the U.S. of A. will let you name your kid almost anything you and your big beautiful mind can spell, and even stuff you can’t! In 2012 alone, our country has issued birth certificates to the likes of Deva (parents are definitely not creating an ego problem), Excel (admittedly a wise name in this economy), Blue Ivy (although, a kid born to Jay-Z and Beyoncé will be juuuuust fine), Haven’T (parenty really instilling a can-do attitude) and Navaryous (a combo of nervous and nefarious that does not bode well). And let’s not forget the dastardly first and last name combos:  Anita Lay, Chris P. Nugget, Polly Esther Sheets, Ben Dover… Some humor columns just write themselves.

Fortunately for you MTWA, in our fame-obsessed culture, names like John Smith just don’t get you anywhere anymore (unless you look like him), so you are wise to want to make sure your kids stand out on a roster even if they have no other redeeming qualities. Money tight? Save a few pennies on birthday cake icing by naming your child Birthday. Want to encourage a healthy dose of sibling rivalry? Name them Blessing and Mistake, or go topical–Mitt and Barack. There’s no reason “who’s on first?” can’t be a daily part of your life by naming your child Who.

In our great country, people have won legal battles to be called many things. Other countries aren’t so free. New Zealand is entirely uncool about names, ruling illegal clearly awesome names like Stallion, Yeah Detroit, Fish and Chips (for twins), Twisty Poi, Keenan Got Lucy and Sex Fruit. (Thankfully, children called Midnight Chardonnay and Number 16 Bus Shelter were safe from governmental scrutiny.) Denmark has a Law on Personal Names that forces parents to choose from a list of seven thousand pre-approved monikers. (In America, we have more Ben & Jerry’s ice-cream flavors.) The Naming law in Sweden generally requires authorities to approve names in an effort to prevent non-nobles from giving their children noble names–sort of the equivalent of having the U.S. government ban parents from naming their kids Clinton or Kardashian. In protest, two parents (who apparently dropped a coffee mug on their keyboard) attempted to name their child Brfxxccxxmnpcccclllmmnprxvclmnckssqlbb11116 (pronounced Albin). Sweden wasn’t having it. But before we feel too bad for tiny Brfxxccxxmnpcccclllmmnprxvclmnckssqlbb11116, just remember that Brfxxccxxmnpcccclllmmnprxvclmnckssqlbb11116 has a wikipedia page dedicated to him. Do you?

But even America has its limits. In yet another reason that China will eventually surpass us in the global economy, numbers tend to be off limits–“1069” and “III” were rejected by state courts as legal names. Some states are totally cool with you naming your baby Santa Clause, while others are less so (still, Kris Kringle should be fair game everywhere).

But just remember, while you may legally be allowed to call your daughter FatFace, there’s nothing stopping your neighbors from calling child protective services on you.  The New Jersey parents of Adolf Hitler Campbell and JoyceLynn Aryan Nation lost custody of little Adolf, and so could you. I mean this was in New Jersey… home of Snooki and JWoww. You’re not safe anywhere.

Maybe stick to naming pets.

Love,

Luci Lawless

Luci Lawless is an attorney at a big law firm in the northern hemisphere. She was born to parents and lives in a dwelling. She has graduted from a law school that awards degrees, where she learned law-related things. She is not calling upon any of that knowledge, or any real or imagined skills or expertise, in her blog contributions. If you want real legal advice, consult an attorney. Seriously.

What Lawsuit?
The settlement stems from a lawsuit claiming that Facebook unlawfully used people’s information in advertisements. You’ve seen these “sponsored stories” before on your news feed–suddenly it says “Joe Schmoe likes Nordstrom!” Maybe you think, “Really? I mean, I guess he wears clothes, but is he such a huge Nordstrom fan?” And the answer is probably no, he “liked” a given product because it got him a discount or signed him up for a raffle. But that innocuous action–hitting the “like” button–not only added Nordstrom to the ten million other things Joe has “liked” but also made him a Nordstrom spokesman on the news feeds of all his friends. That can be awkward–especially when it’s for a more bizarre item (a diet protein shake, say, or lingerie). The lawsuit is a class action brought on behalf of everyone affected by the “sponsored story” campaign. Facebook and Fraley (who started the suit) have agreed on a settlement (explained below).

Why Me?
You received the notice because something you liked or interacted with (by, say, “checking in” at a certain business) showed up in a “sponsored story” ad on your friends’ news feeds. So if you’ve been checking in at strip clubs or liking controversial pages, your friends probably all know about it. Sorry!

What is a Class Action?
A class action lawsuit is one where a single individual, or maybe a handful of individuals, can bring a lawsuit trying to represent all people who are in a similar position, so long as the court approves it. People can join a class action in two ways: for an “opt out” class action, they’re automatically in unless they say otherwise. For an “opt in” class action, it’s the opposite — someone has to take steps to join, otherwise they’re out.

Being part of a class action comes with significant upsides but also serious downsides. If the individual bringing the suit (the “named plaintiff”) wins, everyone they’re representing also wins. If the individual loses, everyone loses–and cannot then decide to bring their own suits. If the individual settles–as happened here–and the court approves that settlement, then everyone in the class is bound by the terms of the settlement.

Why Do We Allow Class Actions?
Some kinds of wrongs affect a large number of people but only have a minor effect on each individual. Let’s take consumer fraud as an example. Everyone has a credit card, but let’s say a credit card company was secretly charging everyone 0.01% more each month than it said it would. This would certainly be illegal and may result in the credit card company stealing millions of dollars from customers. But each customer probably only lost a small amount of money. Even if someone lost $100 in this scam, no lawyer is going to take on a case for ⅓ of $100–that wouldn’t even cover the lawyer’s filing fees. But someone needs to take the case, because credit card companies can’t just go around stealing $1 million. That’s where class actions come in–they allow the law firm taking the case to get paid based on how much everyone makes, and give the law firm an incentive to recover everyone’s money. You may not want to sue over $100, but it’s your $100 and you should get it back.

What is Opting Out?
But what if the lawyer does a terrible job? Or what if you think you could do better–maybe the class action will get everyone $100, but you’ve lost $10,000, or the credit card company’s wrongdoing somehow affected you more? It doesn’t seem fair that one individual and her lawyer should be able to settle your claim for you without your consent.

That’s where class action law becomes tricky. Some kinds of class actions, known as “opt in” class actions, require everyone’s consent to be a party. So if I’m suing on behalf of all McWendy’s workers for some unpaid wages or overtime, my lawsuit wouldn’t affect you unless you actually signed a piece of paper saying, “Yes, I want this person to represent me and I understand that I’m bound by the outcome of this lawsuit.” If you don’t sign the piece of paper, then when I win my lawsuit for a billion dollars, you don’t get a cent of it–but if I lose, you can still sue on your own. When I start an opt in lawsuit, I have to send everyone a notice and opt in form. If you throw the form out, you’ve lost your chance to cash in with me, but you haven’t lost your right to bring your own lawsuit.

Most class actions, like the Facebook suit, are “opt out” class actions, meaning that everyone is automatically a part of the suit unless they actively state otherwise–i.e., “opt out.” This means that if you received the Facebook notice and thought it was spam, you’re automatically part of the suit, bound by the suit’s outcome, and have waived your right to bring your own lawsuit. This is why you should always read class action notices. Most of the time you’re probably fine with the outcome of a suit–you may know literally nothing about it and have no real stake in the outcome. Sure, I’d love $1, but if I lose it, I don’t really care. I’m not going to hire my own lawyer to bring my own suit anyways, so I have nothing to lose. But in those rare instances in which you do care, you need to preserve your rights.

Remember, though: opting out means that you don’t get the benefit of the current lawsuit. It’s only worth preserving your claim if you actually plan on getting your own lawyer, bringing your own suit, and winning more than the class action settlement would get you.

What if I Don’t Opt Out?
Not opting out means you’ve lost your right to sue for the same thing. The law will treat you just like the guy bringing the suit–whatever the outcome is for him, that’s the outcome for you. But that doesn’t mean there’s nothing you can do.

You generally retain some rights to participate actively in the suit. For example, in the Facebook class action notice, members of the class (i.e., those who haven’t opted out) have the right to write a letter to the court objecting to the settlement. You can also show up at a hearing to tell the court your objections in person. Oddly, the notice doesn’t tell you where the hearing is or how to contact the court. If you really want to be involved, you can write the court at:

Hon. Richard Seeborg
San Francisco Courthouse,
Courtroom 3
17th Floor
450 Golden Gate Avenue
San Francisco, CA 94102

You have until May 2, 2013 to write the court a letter, and the hearing will be held at the same address on June 28, 2013 at 10:00 a.m.

What’s the Claim Form About?
You may have read in the Facebook notice about a “claim form.” The notice states that it’s “the only way to be eligible to receive a payment,” and hey, who doesn’t love a payment? You may also have skimmed the notice and seen an enormous figure right at the beginning of the fourth paragraph: “Facebook will pay $20 million.” Seriously, who wouldn’t love $20 million?

A closer reading, however, shows that submitting a claim form will entitle you to only “up to $10.” You might submit a claim form and receive nothing. That’s not to say you shouldn’t submit a claim (which you can do here), but you’re not guaranteed a penny (and definitely won’t get more than $10).

Why Settle for $0-$10 Per Person?
Now you might be kind of annoyed–here this Angel Fraley person is trying to represent you in a lawsuit and bind you to this agreement whereby you might get $0. Where the hell does the $20 million go? And what’s the point of letting him settle my case for me for no money? I thought a judge had to approve this settlement–why is he allowing Facebook to get away with this?

The first answer is that, of course, money isn’t everything. The settlement agreement includes a lot of provisions requiring Facebook to be better in the future–revise its terms of service to be clearer, give people access to their own sponsored stories (so you can see what everyone else has been reading about you), add some control to help minors avoid advertising everything they do, and offer users (slightly) more control over what kinds of ads they appear in. It’s not the most groundbreaking stuff, and it won’t allay many people’s fears about Facebook privacy, but it’s certainly a step in the right direction.

Facebook would never have agreed to something like this unless it got something in return. What they get in return is the promise that no one who’s been affected by sponsored stories– except those rare few who will opt out–will ever be able to sue on the matter ever again. They’re settling literally millions of potential lawsuits at once.

This is an aspect of class actions that is rarely discussed. Not only do class actions give lawyers an incentive to bring important lawsuits that would otherwise be ignored (because the winnings on any individual case wouldn’t be worth it), it also gives them leverage that would never exist with only one plaintiff. Let’s say I’ve been so harmed by sponsored stories that Facebook owes me $50,000. (I cannot image how this could be possible, but let’s just pretend.) One third of that amount might be sufficient to tempt a lawyer into taking the case, and Facebook might be willing to settle it. But $50,000 is nothing to Facebook. There is no way Facebook would ever be willing to make any sweeping changes to its privacy policy just to get rid of a $50,000 case. But if the case is a class action–representing potentially 70 million users–then a settlement wipes out all of those cases. Even if those cases were worth almost nothing, Facebook would still have to defend against them. That’s a big enough benefit to entice Facebook to make changes like the kind described above.

This is why a judge would allow the case to settle, even though under its terms most people get very little–there’s a public good that the settlement provides, which helps class members and society at large. (In fact, the judge disallowed an earlier draft of the settlement agreement that didn’t include the “up to $10” part, precisely because he didn’t think it was fair that no one was going to get anything.)

Where Does the Rest of the Money Go?
There is an interesting legal doctrine called “cy pres,” which means, essentially, “good enough.” So, let’s say I start a charitable trust to “give $10 million per year to graduates of XYZ high school.” But then XYZ high school is shut down. The trust still exists, but it can’t perform its stated function anymore. The doctrine of cy pres would probably allow the money to go to graduates of some other high school that is similar to XYZ school. If you can’t get exactly what you want, a judge can decide what’s second best.

Here, the court (and the parties) agreed that it would be unlikely that all members of the class (i.e., every single person who’s ever appeared in a sponsored story) would realistically be able to recover whatever money was owed them. In this instance, the doctrine of cy pres dictates that the leftover money be given to charities that work for the interest of class members.

Facebook has agreed to donate $20 million to a fund to pay attorneys’ fees and also the “up to $10” claims stated above. Whatever is left over will be donated to the following charities:

Center for Democracy and Technology

Electronic Frontier Foundation

MacArthur Foundation

Joan Ganz Institute (NYU Law School)

Campaign for Commercial-Free Childhood

Consumer Federation of America

Consumer Privacy Rights Foundation

ConnectSafely.org

WiredSafety.org

People who don’t submit a claim form are essentially donating between $0-$10 to these foundations. It’s considered “close enough” because those organizations are looking out for the greater interests that are represented in the suit–your right to internet privacy and to control how your information is used in advertising.

Moreover, if no claims are deemed worth more than $4.99, the whole amount (minus attorneys’ fees) will be given to the foundations. If so many people make claims that it ends up costing more to give them all their $10 than the actual money they’re receiving (making it “economically infeasible” to make the payout), again, the money would go to those foundations.

How Much, Exactly, Are the Lawyers Getting?
The remaining money will be given to the attorneys who brought the case and the entity administering the settlements (and to cover costs and fees).

The actual amount of attorneys’ fees will be decided between the court and the lawyers. The lawyers must submit an application to the court justifying the amount of fees they want. They need to persuade the court that they’ve done good work for the class that’s worthy of the sum they want. Because their fees get deducted first–with the rest going to the foundations or people who submit claims–they need to also convince the court that they’re taking a reasonable amount.

The lawyers have already made their application for fees (which you can read here) and are requesting $7.5 million. That may sound like an awful lot, but two separate law firms put a lot of work into the case and arguably got a pretty solid result.

That amount is also a reasonable percentage by current standards. Most people can’t afford to pay lawyers by the hour to start a lawsuit. (Some lawyers charge literally $1,800 per hour, though that’s pretty unusual). That means most plaintiffs’ lawyers work on contingency–they’ll bring your case in exchange for a percentage of the winnings. The customary contingency fee is a third–which is essentially how much the lawyers here are asking for.

The lawyers are also trying to get $12,500 for each “named plaintiff”–i.e., each person whose name is in the caption (like Angel Fraley). These payments act as an incentive for people to bring class actions. After all, if you were only going to get between $0-$10, why would you bother contacting a lawyer in the first place, let alone signing declarations and possibly testifying under oath?

For more information about the settlement, visit the settlement website.

Christine Clarke is a regular contributor to the blog and an employment lawyer at Beranbaum Menken LLP in New York City. She writes on employment law at Wage Against the Machine.

Getting a mortgage often feels like a Sisyphean task. We submitted the financial information for pre-approval, an updated version for approval, and then a slightly more specific and updated version to go to our underwriter. By the third round of chasing banks and canceled rent checks, on a routine call to simply get the terms and conditions of an account, I could push the boulder no longer.

It was the crack in his voice that let me know that he was crying. I wish it hadn’t come to that. Still, the document that was supposed to take “7-10 business days” arrived in my inbox thirty-four minutes after we hung up.

My father is an employment lawyer, so for a living, he makes sure things are right in the work place. Or as I viewed it growing up, “he argues and wins and gets paid.” (As I got older, this definition became more finessed: “he argues and wins and gets paid…about work stuff.”)

While we never discussed legal matters over dinner, I suspected a legal tone to everything he said. Having a conversation with him required having adequate support, details and defense–if I didn’t close the refrigerator tightly enough, there was no way I could blame my sister or an imaginary fairy or there being too many chickens in the fridge. He would ask the questions (“When were you down here last?” “What were you eating?”) that would ultimately lead to sufficient evidence for him to prove that, yes, I was the party responsible for the skyrocketing Con Ed bill and rotten food, including the chickens.

What I learned from this, incidentally, was (1) how to construct an argument (if there’s evidence to do so), and (2) that some arguments (like the fridge) were just not worth it. Being right when it didn’t matter to me meant throwing up my hands, but being right when I was right became essential.

It’s the things in between that still puzzle me.

This became clear at my job as a temp right out of college. My dad had told me that if I didn’t sign a contract, things weren’t set in stone, but as soon as I signed, they were; I could be held accountable. I remember sitting on the train to one of my first days and glossing over the “Temp Bible” that reminded I was not an employee of the company, just the agency, and therefore wasn’t allowed to take any swag offered by the marketing company or real estate agency where I was filing. But I already knew this. I remembered signing on that dotted line.

“Take one of these magazines,” one of the women in the cubicle said to me.

“I can’t,” I said.

“It’s just a magazine,” she said. It was one of eight million copies of Allure, but I didn’t want to lose my job or end up in court.

“Go on lunch break, Mallory,” I would be told at another temp job.

What if I didn’t want a lunch break? What if instead of lunch breaks I just had more getting-coffee-and-going-to-the-bathroom privileges? Everyone looked at me so skeptically every time I went to the bathroom or went to get another free K Cup of coffee. (Or did they?)

Since my father didn’t bring home any work for me to peruse (which I wouldn’t have looked at anyway), I didn’t–and still don’t–know the codes of employment law. Sure, I occasionally call him to ask if something is ethical or standard or legal, but more often, I’m just suspicious across the board simply knowing that employment law exists.

As an adult, I don’t know if there is a better lesson than realizing that some arguments are just not worth fighting, but that it is necessary to be your own advocate when something really matters to you. There are battles that are worth all of the evidence, defense, and proof in the world. I’ll fight for what I’m care about, in part because I believe I have enough proof, that if I had to, I could “win” an argument about it going head-to-head with my father at the kitchen table, with all of his legal jargon and professional argument-winning skills. When I’m not suspicious, I’m either letting things slide or having a passionate conversation.

But while growing up under the law didn’t lead me to become a spineless pushover or an argumentative, red-faced lady, I sometimes wonder if I’d be so suspicious all the time were I not the daughter of a lawyer. I’ll never know.

Mallory Schlossberg is a writer and performer living in Brooklyn, New York. Her original one woman musical has been performed multiple times at The Magnet Theater. Her writing has been featured on Funny Not Slutty, Brokelyn, Thought Catalog, and other blogs. You can follow her on Twitter @malloryschloss.

Henry Rivera (not his real name) grew up with his mom in Greenpoint, Brooklyn.

“I wasn’t supposed to be born,” Rivera says. His mother was in love with a doctor who was married.

“Whatever happened happened, and I came along. They beat her up trying to kill me.  She was seven months pregnant, so they induced an early birth. I came out with no damage whatsoever. At the age of 14, I was almost 200 pounds of solid muscle.”

Rivera’s neighborhood, like many in New York in the 80s and 90s, was a little rough around the edges. He explains that back in the day there were certain lines in the neighborhood you couldn’t cross if you didn’t want to get beat up. It was a matter of survival. For better or for worse, he loved it. He loved his community. He says it was always a family neighborhood.

Rivera got older and started a family of his own there. He came to take on an important role. He became that guy that people would rely on to take care of things. Pablo Airaldi met Rivera when he opened a bike shop on the main stretch of Greenpoint. Airaldi introduced Rivera to me.

“Henry came into the shop and went right up to the counter to introduce himself…..just to introduce himself,” Airaldi recalls. “We were the new kids on the block and it’s his block. He knows everybody on that block because he makes sure that people know him. It wasn’t obvious from the beginning what Henry did. You just knew that there was a reason to respect him. I don’t usually question those kinds of gut instincts. I just went ahead and respected the man wholeheartedly.”

Airaldi came to think of Rivera as a block boss figure. Others call Rivera the mayor of the block. One thing is certain: You do not want to get on his bad side.

“If you need a hug I’ll give you a hug, if you need a smack I’ll give you a smack, that’s the community that I lived in,” Rivera says.

There a lot of communities like Riveras around the United States—people who take the law into their own hands.

Laura Beth Neilsen, a research professor at the American Bar Foundation, says this kind of thing arises most often when people’s desire for order is not addressed by whatever legal authority is in charge.

“Sometimes other systems are working just as well, you don’t need the police. There’s research about tight knit but very crime ridden areas where a lot of the policing is actually done through networks of mothers and grandmothers,” she says.  Or by people like Henry Rivera.

Neighbors say in the worst of times, he tried to keep the block safe when no one else would. Laura Hoffman was one of those neighbors. She’s lived in Greenpoint all of her life. In the 90s, Hoffman was bringing up six kids in a low-income housing apartment right around the corner from Rivera.

“I used to have to get up maybe a half hour, 45 minutes early in the morning, just so I could sweep up the crack vials and needles and stuff that was hanging out in our hallway,” she says. ‘My kids knew what I meant when I said, ‘Hit the dirt!’”

Hoffman says she turned to the police for help. As soon as something started going wrong, she’d call her local precinct, but she rarely got a response. Over the years, Hoffman has filed over 20 official complaints and showed up at the precinct in person but to no avail.  In her mind, the 94th precinct was an R&R precinct.

“A rest and relaxation precinct.”

I spoke with Johnny Barela, the former sergeant at the 94th precinct. He says in the precinct’s defense, “Sometimes the police can’t do everything.  We did a lot with a little.”

Barlea worked in Greenpoint at the time Hoffman was bringing up her kids, when crime rates and drugs were really a problem in the neighborhood. Barela grew up there too.

“The department politicians, they handcuff you,” he says. “They don’t allow you to do the job the way you should do it or really want to do it. They’re always crunching numbers and looking for this and that. You don’t really care about the paperwork. Your job is to get the bad guy.  But then you have to understand the paperwork’s important because you gotta prosecute ‘em. That’s part of the job. Checks and balances.”

Barela admits that things had gotten pretty bad in Greenpoint.

“There were murders, everyone knew about, unfortunately everyone was either a victim or knew someone close or relatively close to them that was a victim of some sort of crime either by a larceny break in, car theft, burglary or worse. So people did not feel safe.”

This is where a guy like Henry Rivera comes in. He says he understands what the police are up against.

“Cops have to run by all these laws, gathering evidence and all that I mean. I don’t have to. That’s it. I don’t have to. Nor am I going to waste my time,” says Rivera.

Hoffman says that if you had a problem, Rivera was there. He was able to do what the 94th precinct wasn’t able to do. That could be any variety of things.

One example involved a group of crack addicts. There was one particular corner where they liked to hang out, and Rivera says children lived nearby. One night there were a couple of drug users on the corner, and this is how Rivera handled it.

“I walked downstairs, like a normal Puerto Rican would do, in his boxers. Enchancletas.

As I walk out the door, there are two garbage cans there. One metal and one plastic. I pick the plastic one up. I swing. I do a full 360. I clobber the guy. Right?  I mean he is done. One shot done. There was garbage in this plastic one. The silver one was empty. I picked the silver one up. I’ve never….whatever I enjoyed it. Fuck it. I clobbered her over the head with it. She fell and shut the fuck up.”

This is only one of many stories Rivera has about keeping the neighborhood in shape. Once he caught a kid stealing an older woman’s purse:

“I didn’t stop kicking him. It would have been self defense if I gave him three kicks instead of 35 of them. And you know? I’m sorry, but he was mugging someone. It was an older lady.”

Rivera’s methods are a little extreme. Despite Barela’s issues with police effectiveness in the neighborhood, the retired sergeant is adamant that vigilantism is wrong.

“This man’s justice or penalty is a beating—one time he might make a mistake. Wrong person’s going to be victimized! Then I get involved because he just committed an assault. Either way he’s committed an assault,” Barela says.

Laura Hoffman is not of the same opinion. “I’m not going to say I like it when somebody has to use that kind of force, but sometimes people have to do what they have to do to keep their corners livable. He’s the kind of person if he felt that it was needed, I would trust him. If he had to resort to something like that, then he had his reasons.”

In the eyes of the law, Rivera is a criminal. In the eyes of the community, he’s a keeper of the peace. Laura Beth Neilsen explains that if Rivera has the backing of his community, there is a way in which it is legitimate.

She says, “When taken to the extreme, say he takes out a baseball bat or a gun, no that’s not legitimate. As long as he’s not doing serious violence and it’s a shared norm in the neighborhood, that’s …community. That’s what we call community.”

But Rivera’s methods are crossing the line that Neilsen is talking about, the serious violence line. However, if we’re talking about community norms, especially at this particular time in Greenpoint, this type of behavior was pretty common. Even Laura Hoffman swung a baseball bat from time to time.

Rivera asserts, “If I’m a product of my surroundings,  I’m a happy product of my surroundings, I would never let anyone get away with bullshit.”

Even if his methods are in harmony with the norms of the community, they are in conflict with the norms of the general public. His use of violence is what pushes his role in the neighborhood from neighborly to potentially criminal. I asked why he feels the need to take things so far.

Rivera answered with a question.

“When you see tough guys beating people up for no reason? What do you feel like doing? I’ll ask you that question. Running?”

Cowering a little, I say, “….kind of.”

“I’m sorry to say it like this,” Rivera responds, “but the gangster in me is coming out. It’s pussies like you, OK, that piss me off. Because when you stand around watching someone get hurt and don’t do shit about it? That’s a big fucking problem. And a lot of people do that.”

Former police sergeant Barela says he too had the same emotional reaction to crime, “but you can’t do that.  It’s not going to work. There’s always somebody tougher. So it just comes into war and battle and it’ll never stop. He’s just a thug.”

Still, Rivera is more than just a thug. He shows up at city council meetings. He lobbies for things he thinks are important. He coaches little league baseball. He’s all for what he calls “good cops.” But only to a certain point.

“We have laws on the books for a reason. They fit in when the cops are taking care of things. When they’re not taking care of things, they don’t fit in at all.”

Rivera’s been arrested, but has never done time. “Once they found out what really happened,” he says,  “They let him go. ”

Nowadays, Greenpoint is mostly gentrified. There seems to be less of a drug problem—at least out in the open. Rivera spends less time beating up crack heads and more time building movie sets and doing standup comedy. Though you’d better know for sure he’ll still give you a smack if he thinks you deserve one.

I’m a software developer and big fan of goulash, gumbo, and bouillabaisse. A colleague and I were sitting around the other day and came up with an awesome idea for a new startup: a social networking site for the slow-cooker community! I 100% think we’re ready to be the next big tech/foodie success story! But we’ve never founded a business, and we’re a little nervous about the legal stuff. How should we set up our company? And what else do we need to be worried about? (Also, did you really have to paraphrase my question so much?)

Sincerely, 

Mirepoix-sed for Success 

Dear Appalling Play on Words,

Congratulations, you’ve got a killer idea–huh, what d’ya know, it’s got a “social” in there–but let’s hold up just a second. There are a couple of very important questions to answer before you start connecting computing Crock-Pot® crazies, let alone pitch your first VC¹ or get Goldman to roll out the money trucks for your IPO. So, using the lawyerly one-two punch of needlessly long words and crudely drawn MS Paint pictures, let’s walk through the initial phases of launching 2013′s hottest² startup, “ste.ws – THE social site for stew enthusiasts.”

Why driver’s ed is mandatory in top-tier MBA programs

First, you describe your prospective co-founder as a colleague. Where and when you were “sitting around”–and what you were doing–may just be a crucial data point. Nowadays, most companies (your employer?) with the slightest lick of sense will require employees to sign some manner of assignment of inventions agreement, containing scary (here underlined) language like:

“To the fullest extent under applicable law, the Company shall own all right, title and interest in and to all Inventions (including all Intellectual Property Rights therein or related thereto) that are made, conceived or reduced to practice, in whole or in part, by me during the term of my employment with the Company and which arise out of any use of Company’s facilities or assets or any research or other activity conducted by, for or under the direction of the Company (whether or not (i) conducted at the Company’s facilities, (ii) during working hours or (iii) using Company assets), or which are useful with or relate directly or indirectly to any “Company Interest” (meaning any product, service, other Invention or Intellectual Property Right that is sold, leased, used, proposed, under consideration or under development by the Company).”³

As a general rule, copyright ownership means what you create you own, but the ”work made for hire” doctrine⁴ is an enormous, fanged, rabid, slobbering exception to that rule, essentially providing that copyrightable creations of an employee within the scope of his or her employment belong to the employer.

Fun fact: The Copyright Act of 1976 was based, largely, on ancient Hungarian folktales

Plain English: know what you sign.  This is generally a good rule of thumb–for example, there are quite a few contractors out there who probably haven’t realized that my former company owns their life stories.⁵  Also, if you’re working on something that may be in the same line of business as your employer, or if you were using company resources to work on it (e.g., coding on your work computer), you miiiiight just be setting yourself up for trouble.

For our purposes, let’s assume that you and your co-founder work at an advertising agency, with no food-related clients or interest in promoting any sort of stew, that you came up with this idea while cooking up a carbonade flamande at home, and that you work on your new venture exclusively in your free time. After a few months, you’ve built a super-sleek site–responsive design, top-flight graphic work, those cute little button thingies to share stew recipes on Facebook, Pinterest, Friendster, CompuServe or whatever. Now you want to open it up to the hasenpfeffer-mad masses and watch that sweet, sweet ad revenue flow in by the tenths-of-cents. What better time⁶ to set up a company?

As far as choosing a corporate form, there are a few viable options.  You could go with a corporation, because you’ve always wanted to have stock options like all the cool kids. You could forget to formally establish anything and wind up in a general partnership (hope you really trust your co-founder).

But you probably want to set up a limited liability company (“LLC” if you’re nasty). Forming an LLC is remarkably easy. File your “articles of organization” (you know what that is, right?) or “certificate of formation” (this, too?) with the state, pay some fees, maybe jump through another hoop or two depending on the state. An LLC combines the best parts (like liability protection) of a “traditional” corporation with the best parts (like pass-through tax treatment) of a partnership, so it’s pretty much exactly like a short ribs & red velvet cake stew.

On second thought, maybe not.

I’m going to take a quick break here, because (a) I’m going to throw up thinking about that stew, and (b) you’ve probably stopped reading and there’s a lot more ground to cover. So stop back by in two weeks for some more time in the unlimited limited liability company’s company, wherein we get this enterprise on its feet.

Keep braising that chicken,

Li’l Tommy Hagen

¹ Venture Capitalist, not Viet Cong. Easy mistake to make, though.

² Fact: stew is served hot. Prominent examples of not-stew include gazpacho and vichyssoise.

³ From Gunderson Dettmer LLP’s form of “Employee Proprietary Information And Inventions Agreement,” as posted to Docracy.com.

⁴ For a more fulsome exploration of this doctrine, see Justice Thurgood Marshall’s opinion for the unanimous Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). Totally a gripping read, promise–my eyes glazed over only like 5 times.

⁵ Hopefully, they will enjoy our Lifetime Original Movie–Jason Priestly was available for a song.

⁶ Actually, consider doing this before building the site, as having intellectual property owned by your company from the start will solve some potential issues between you and your partner before they arise. But shuffling the steps now  would screw up my narrative slightly more than this constant foodfootnoting.

Li’l Tommy Hagen is a German-Irish corporate attorney who’s practiced with a BigLaw firm, in a couple of in-house positions, and as a solo advising tech startups. Nowadays, he has a special practice; he handles one client, and by the way, admires your pictures very much. 

Note: This column is titled “This Does Not Constitute Legal Advice” because it does not constitute legal advice. If you want that, see an attorney.

With the inspection behind us it was time to officially take our house off of the market.

To take our house off of the market we signed a contract and placed a deposit of 10% of its value.

The simplest way to place a deposit was to write a personal check.

My only checks came from a promotional offer.

And so I am a princess.

Part 2: 

Once our offer was accepted we hired an inspector to evaluate the condition of our potential new home.  A licensed home inspector provides “a written report regarding a property’s condition, including an assessment of necessary or recommended repairs, maintenance concerns or other issues.”

My hope was that the inspector would note the original dining room floor with walnut inlay border, but without all of my histrionics. I was looking for quantitative data that would confirm the value and stability of our long-term investment.

Instead Pete ticked boxes on a series of worksheets, each of them headed with (helpful?) graphics like these:

Part 1:

This is not how I expected to make the biggest financial decision of my life to date:

And so, the same technology that pings my husband “Warren G is playing. Wish you were here,” and “I just ate so many of your Christmas wasabi beans!” was essential in committing our next thirty years (fixed) to a townhouse in Brooklyn.

Kate Tellers‘ stories have appeared in the New York Press, on the Gorgeous Ladies of Comedy (columnist), xojane.com, thebillfold.com and on stages. She is a host of The Moth StorySLAMs in New York City. 

This was no surprise. For ten of the last twenty years, Congress has frozen its own pay by undoing automatic cost-of-living adjustments. These adjustments, provided by the Ethics Reform Act of 1989, are supposed to ensure that government salaries keep up with inflation. Because of its annual freeze, salaries for members of Congress have not budged since 2009.

Why was it unconstitutional for Congress to freeze its own pay? Because it violated the Twenty-Seventh Amendment: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” If Congress wanted to freeze its pay for the two-year term starting in 2013, it had to do so beforethe November election. Instead, Congress waited until after the election–January 1–to “vary” its pay by repealing a cost-of-living adjustment that had already taken effect. Congress can no more repeal a previously enacted raise than it can give itself a pay cut (to benefit politically–saving the taxpayer money) then repeal the cut as soon as the election is over.

It may seem odd that the Twenty-Seventh Amendment prohibits pay decreases. To the extent that people think of the Amendment at all, they think of it as a restriction on increases in congressional salary. The big push for its ratification happened in the mid 1980s and early 1990s, as part of a general backlash against congressional profligacy. On the date of its enactment, the New York Times wrote that “the newly ratified constitutional amendment… prohibits [members of Congress] from voting themselves immediate pay raises.” Ironic, then, that the Amendment’s principal effect today is (theoretically) to restrain Congress from cutting its salary.

And yet, reading the Amendment in the context of its broader history, this irony appears less acute. It was proposed as part of the Bill of Rights in 1789 and would have been the Second Amendment. (There were twelve amendments in the original Bill–those we now know as one through ten were initially three through twelve). What little legislative history that exists suggests that one of the background concerns in debates over the Amendment was the tendency of wealthy legislators in England to use their wealth as a tool of power. Members of the British House of Commons had sought political advantage by cutting their own salaries, and such pay cuts made it difficult for people of more modest means to run for political office. Delaying the effective date of laws that cut Congress’s pay until after the election would render this strategy less effective.

The Amendment was not ratified by the founding generation–it passed through Congress but failed to secure the necessary votes of three-quarters of state legislatures. It was revived nearly two hundred years later, when a college student named Gregory Watson wrote a paper arguing that it could still be ratified. He received a “C” on the paper. Then he went on to launch a grassroots letter-writing campaign to convince state legislatures to finish the ratification process that began in 1789. Between 1983 and 1992, this campaign intersected with the larger budget politics of the Reagan/Bush era, and Watson was ultimately successful. The Amendment took effect in May 1992.

The text that was ratified in 1992 is the same that was proposed in 1789–it says any law “varying” Congress’s salary, not “increasing.” Hence the irony of the Twenty-Seventh Amendment: resurrected to prevent pay increases, its effect today is to render Congress’s routine salary decreases unconstitutional.

It seems likely that Congress will continue to ignore the Twenty-Seventh Amendment by freezing its pay through laws that take effect before an election intervenes. Indeed, one Republican proposal in the current debate over raising the debt ceiling calls for withholding congressional pay altogether until a budget is passed. This might be fine if the pay were merely delayed, but Congress cannot withhold its pay indefinitely unless it does so for the period after the next election.

Of course, current and former members of Congress could always sue to recover their back pay (though that probably would not help with reelection for current members). Interestingly, they have done so in the past. In 1994 several members of Congress sued to have the law providing for cost of living adjustments invalidated under the Twenty-Seventh Amendment. This argument was rejected by the D.C. Circuit Court of Appeals, but the members also argued in the alternative that congressional pay freezes are unconstitutional under the Amendment (the court avoided deciding that issue on a technicality). The lead plaintiff in that case was a Republican named John Boehner, now Speaker of the House. If he wants a nice bump in salary, he could always bring that suit again.

Eric Fish is a 2011 graduate of Yale Law School. A longer version of this argument appeared in the National Law Journal the last time Congress violated the Twenty-Seventh Amendment, in 2012.

Dear TDNCLA,

My fiance is a soulless honey badger who doesn’t know how to be in a functional relationship. He says if we split I have to give him the ring back, but he lies. Is he lying in this instance, too? Can I keep it? Or can he sue me?

Sincerely,

Bitter and Feeling Spiteful

Dear Bitter and Feeling Spiteful,

Congratulations! You’re close to never again having to listen to his snoring or to him saying, “Let there be light!” every time he flips a switch. But your question is a good one. I understand why you’d want to keep the engagement ring. (Sure, it was in his family for nine generations, but serves him right for having slave-owning ancestors anyway!)

First, let’s get one thing straight. This is not a column about whether you should give back the ring. I am not Emily Post or Miss Manners. I’m also not your therapist and not here to tell you that keeping the ring may take an unexpected emotional toll and force you to remember the way he would charge your dying cellphone without you asking, or give up meat with you when you found out you had morals, or make sure you never left your coat stuffed under a bar stool. I’d never suggest that keeping an old engagement ring could hurt your future relationships when your future fiancé starts wondering why you are wearing a much bigger ring than the one he bought you. No. This is a column about what you are legally allowed to do in the eyes of the law, not the judging eyes of your mother or the catty eyes of your ex fiancé’s future girlfriend.

Like marriages, engagement rings are generally governed by property, contract and family law. Courts are generally split on whether engagement rings are gifts (mine, mine, all mine!) or conditional gifts, which aren’t yours to keep until a future event occurs—in this case, the M word. To be considered a legal gift, you would have to show three basic things: that your fiancé intended to give you the ring as a gift, that your fiancé delivered the gift to you (and did not keep it locked in his secret vault), and that you accepted the gift. If you can show these three things, say cha ching! to the ring. But beware: you may also have to show that the gift was not conditional on marriage (“Your honor, he said I could keep the ring if I told his parents we were engaged so they would never find out that he is gay”). With this in mind, here are some factors for all readers to consider before keeping a ring and getting yourself sued (or, at the very least, brought into Judge Daytime TV’s syndicourt of justice):

• Where do you live? Just as your football team loyalties are dictated by where you live, so too are your rights to keep that token of a marriage-to-be. Each state treats the question differently. But that should not leave you powerless. Create a map for yourself of the fifty states (maybe add Puerto Rico, too) and color in green which states let you keep the ring. Insist to your serious boyfriend that the two of you move to a green state before getting engaged. Do not let him see this map.

• Who broke it off?  Some courts get all up in your biz-naz and want to know who ended the relationship. Of course, not all courts need you to air each other’s dirty laundry (think of how much more boring the court docket has become after no-fault divorce). But to be safe, it is best that you pressure your partner into breaking up with you. Eat solely garlic for a week, watch the first half of How To Lose a Guy in 10 Days for inspiration, and suddenly let your fiancé in on the secret that women poop, too. DO NOT CHEAT ON HIM. But do introduce him to your Brazilian model friend Gisele.

• Did you get the ring on a birthday or holiday? It’s too late for you, dear Bitter, but for All the Single Ladies whose boyfriends have yet to pop the question: try to get engaged on a national holiday (maybe not Memorial Day) or on your birthday, so you can make the argument that the ring was a birthday or Christmas gift (again, not Memorial Day). You can tell the court you never promised to marry this man, you just accepted his generous donation to your left-hand. Come to think of it, it would really help your case if you wore the ring on your thumb or pinky finder, further supporting your argument that this was just a stylish addition to your handrobe. And as for photos? Skip the customary “look-at-us-we-are-so-happy-and-engaged” Facebook update. The smartest thing to do when you get engaged is to post a picture of the ring saying, “Gosh, look what I found on the street today!” Your fiancé will think you are being clever and witty, but really you will be paving the way for a victorious legal case.

Following this advice may not nurse your broken heart back to health, but that’s what spa days, Napa getaways and a new wardrobe is for, courtesy of the pawn shop.

Good luck, BAFS. I believe in you.

Love,

Luci Lawless

Note: Lest anyone think me heteronormative or anti-man, all parties to love can benefit from this advice by taking defensive measures against a cunning engagement-ring keeper. Insist on getting engaged in a non-green state on the map, force your fiancé to break up with you, propose on a day that no person in their right mind would consider a gift-giving day (September 11? Too soon?), size the ring so that it only fits on your fiancé’s left-ring finger, and document the bejezus out of your engagement on Facebook, Twitter and maybe even video recordings (See next week’s article: “Can You Secretly Tape Intimate Conversations with Your Loved Ones?”).

Luci Lawless is an attorney in a Big Law firm in the northern hemisphere. She was born to parents and lives in a dwelling. She has graduted from a law school that awards degrees, where she learned law-related things. She is not calling upon any of that knowledge, or any real or imagined skills or expertise, in her blog contributions. If you want real legal advice, consult an attorney. Seriously.

The First Amendment gives citizens the right to be free from government retaliation for speaking out on any “matters of public concern.” Prior to 2006, a public employee who complained about such matters therefore could not face retaliation from her employer. The Supreme Court back then was clear that there were good public policy rationales for this: public employees “are, as a class, the members of a community most likely to have informed and definite opinions” about matters of public concern, and thus it was “essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.”

The Court changed its tune somewhat in 2006, when it decided Garcetti v. Ceballos. That case involved a Los Angeles DA who complained to his supervisors that a search warrant in a criminal case had been wrongly obtained. The Court reasoned that this case was different than those that had come before, because the DA was complaining internally, rather than to a newspaper or other public outlets. The Court’s concern was that “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and  actions; without it, there would be little chance for the efficient provision of public services.” How could one reasonably expect to run a DA’s office with an employee who insists that criminal cases (based on improperly obtained search warrants) be dismissed?

The Court decided that public employees acting “pursuant to their official job duties” stop being citizens for First Amendment purposes. A DA complaining to his boss about criminal procedure is therefore not a citizen — it is his job to be concerned about such things and raise those concerns through the proper channels. If he had gone to the Washington Post, however, he would be a citizen. Going to the press with complaints about the prosecutor’s office is decidedly not a part of a DA’s job description. Thus, public employees who had a legitimate complaint on a “matter of public concern,” like corruption or abuse of authority, were better off calling up the media than going to their bosses.

This puts federal government employees in a tough spot. Not only can they face retaliation for internal complaints under Garcetti, they may well face criminal prosecution for external complaints, if those complaints include even a whiff of sensitive information. Thomas Drake, a former NSA employee at one point faced up to 35 years in prison for leaking possibly classified information to the Baltimore Sun, even though he claimed to have been meticulous in ensuring that nothing he said was classified. In an age of increasing classification, it may be harder than one thinks for a potential whistleblower to discern classified from non-classified information. Moreover, the tactics undertaken during a Department of Justice investigation might be terrifying enough to deter all but the most resilient from going public.

All of this might help explain why an administration so intent on keeping information within the family might support the Whistleblower Protection Enhancement Act, signed last December. The law essentially removes the perverse incentives created by Garcetti, at least for federal employees. Such employees are now protected from retaliation for complaints of abuse and corruption, even where those complaints are internal and pursuant to the employee’s job duties.

The new law thus creates a carrot for those who complain up the chain of command—by giving them job protection—while allowing the Administration to maintain a stick for those who stray too far with sensitive information, by continuing its aggressive stance towards public whistleblowers.

The law also includes important limitations. It does not protect all speech “on matters of public concern,” for which a regular citizen would enjoy First Amendment protections. It protects speech only when it concerns “any violation of law, rule, or regulation,” “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” So, for example, complaints about targeted killings or the use of unmanned drones might certainly constitute “matters of public concern,” but are certainly not considered illegal by the current Administration. Unless an employee can show that she “reasonably believed” these practices were illegal, she would not be protected from retaliation for complaining about it.

The law reserves to the President the power to exclude from protection the employees of any agency deemed to be primarily involved in “foreign intelligence or counterintelligence activities.” Given the expanded scope of the modern national security state, the number of agencies or departments that might fit under this rubric is undoubtedly expanding. The law also excludes members of the intelligence community. While the President countered this with a Presidential Policy Directive, he can revoke it at will, and the revocation can be classified (as are most Presidential Policy Directives). FBI employees are not protected at all. And while federal contractors are protected under the law, the President’s recent signing statement made opaque references to the Executive’s continued authority to “supervise, control, and correct employees’ communications with Congress,” whatever that means.

In sum, the law gives job protection to potentially thousands of federal employees who might want to follow the ubiquitous adage of the Department of Homeland Security: “If you see something, say something.” However, the law does not protect those employees who “say something” to the press about potentially classified matters or matters the employee doesn’t “reasonably believe” are technically illegal, constitute government waste, or pose a “specific” threat to public safety. The Administration’s continued pursuit of criminal investigations against those even perceived as leaking information to the public may well encourage federal employees to keep complaints on sensitive issues internal. While we may prefer that complaints of such abuse be made public in the name of transparency and democratic accountability, there’s reason to hope that encouraging at least internal dissent might nonetheless contribute to greater dialogue and accountability within the Administration.

Christine Clarke is an employment lawyer at Beranbaum Menken LLP in New York City. She has published in Slate and writes an employment law blog at Wage Against the Machine.

Once our offer was accepted we hired an inspector to evaluate the condition of our potential new home.  A licensed home inspector provides “a written report regarding a property’s condition, including an assessment of necessary or recommended repairs, maintenance concerns or other issues.”

My hope was that the inspector would note the original dining room floor with walnut inlay border, but without all of my histrionics. I was looking for quantitative data that would confirm the value and stability of our long-term investment.

Instead Pete ticked boxes on a series of worksheets, each of them headed with (helpful?) graphics like these:

Tune in on Wednesdays for more.

The worst joke ever was told by a lawyer on December 13, 1971:

“Mr. Chief Justice, may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.”

Thus spoke Jay Floyd, an attorney for the state of Texas, opening an argument in front of the US Supreme Court. He was arguing against a plaintiff whose real name was Norma McCorvey, although she was given a different name by the court and her attorney, Sarah Waddington.  Those were the “two beautiful ladies” in the joke.

They were all at the Supreme Court to argue whether there was a fundamental right to abortion in the United States. If you haven’t guessed by now, the name the Court gave Norma McCorvey was Jane Roe.  And, as they say, the rest of Roe v. Wade ishistory.

But why did Jay Floyd decide to make history this way? Ryan Malphurs is an expert on the high court and the author of a book titled “Rhetoric and Discourse in Supreme Court Oral Arguments.”

“Working within Texas, and specifically within Dallas and the Eastern District of Texas, it is not uncommon for Texas attorneys to use humor in their statements to jurors. It’s also not unusual for attorneys to come to the Supreme Court and bring their same style of argument that they’ve developed over years and years of experience,” Malphurs says.

Indeed, when we think about attorneys, it’s easy to imagine Richard Gere in the musical Chicago, using his charm to delight the jury. But there’s a big difference between humor in front of a jury and humor at the Supreme Court.

“I think there’s a classic form for a speech where you open a speech with a joke. I think that’s a disaster at an oral argument,” says Linda Coberly, a former clerk for Justice Breyer and Vice Chair of the Appellate Division at the law firm Winston & Strawn.

“If you are an advocate you want to open with the reason why you should win your case. If the first thing that comes out of your mouth is a joke, I think you’ve really wasted an opportunity,” Coberly says.

Legal scholar Ryan Malphurs has spent a lot of time in the Supreme Court, which he says feels more like a church sanctuary than a courtroom.

“It has pews, it has chancel railings, it has areas that the lay public are not allowed to go.”

And these formal spaces share another thing in common. They’re both places where Latin phrases are more common than jokes. But that doesn’t keep lawyers from trying to make jokes anyway.

Take for example, United States v. Stevens, a case about whether the First Amendment protects so-called “crush videos.” The less you know about crush videos, the better for your life as a human being. Suffice to say they are depictions of animal cruelty.

Malphurs was in the courtroom at the time. To understand what happened, you should know that Justice Antonin Scalia hates it when advocates talk about legislative history. In this situation, the advocate was talking about legislative history and turned directly to Justice Scalia and remarked:

“I realize that is not relevant to you, but it may be to others on the court.”

“There were gasps and loud laughter that echoed through the court at the time,” Malphurs recalls. “And you noticed immediately Justice Scalia jump up from his chair almost and lean forward.”

To put it mildly, the lawyer messed with the wrong guy. The first five minutes had been controlled by the attorney. But the remaining 25 minutes were Scalia’s.

“He completely dominated that advocate’s oral argument and prevented him from being able to articulate a clear and cohesive argument to the rest of the Court,” Malphurs says. With one joke, “this advocate woke a sleeping dragon.”

He would go on to lose his case, and by a lot. In the end he had eight justices against him and only one on his side.

Surprisingly, though, some advocates are able to use humor and use it well at the Supreme Court. If you asked court-watchers to name the best lawyer working today, you’d expect to hear Paul Clement’s name come up a lot. In some of the Court’s recent big cases—The Affordable Care Act, the Arizona immigration law, and others—he argued one of the sides.  And within the legal field, Clement isn’t just one of the best advocates, he’s one of the funniest.

Here’s Clement bringing the house down in a case from 2007:

Justice Scalia: “When do you think the bad old days ended?”

Paul Clement: “Patterson was 1989. I don’t think anybody thinks Patterson was the bad old days.”

Justice Scalia: “I’m sorry, I’m thinking of Sullivan.”

Paul Clement: “The bad old days ended when you got on the Court, Mr. Justice Scalia.”

Um, so maybe you’re not rolling on the floor, but there is a bigger point here.

Here’s how Clement himself breaks down one of his biggest laugh lines, from a 2007 case called Hein v. Freedom From Religion Foundation. Vocabulary primer: “colloquy” is a formal term for a conversation—in this case between Paul Clement and the justices on the court.

“This colloquy, if I remember it right, comes after Justice Scalia has been beating me up over the distinctions that we had drawn in our brief. But of course, we hadn’t made these distinctions on our own. These were the distinctions that the court had drawn in its own establishment clause cases,” Clement recalls.

“And so, after having gotten beat up basically trying to defend the court’s precedents, Justice Alito gave me what is probably one of the friendlier questions I’ve ever gotten at the Court.”

Justice Alito: “Are you arguing that these lines that you’re drawing make a lot of sense in an abstract sense? Or are you just arguing that this is the best that can be done that this is the best that can be done within the body of precedent that the Court has handed down in this area?”

Paul Clement: “The latter, Justice Alito. And I appreciate… I appreciate the question.”

“Why didn’t you say so?”

Justice Alito: “I… I’ve been trying to make sense out of what you’re saying.”

Paul Clement: “Well, and I’ve been trying to make sense out of this Court’s precedents.”

So this isn’t hilarious—it’s dense banter, but an attorney’s skill at this high-wire act can make all the difference.

“One of the things you really see when he argues is a very conversational style. It’s a delicate balance because you don’t want to be too conversational, in the sense of losing the respect for the judges. And I think Paul walks that line very, very well,” Linda Coberly says. She spent a term with the Justices, and she thinks they do appreciate a little levity now and then.

“They like nothing better than a good joke. Now, they’re very, very serious about the work they’re doing. But as colleagues, they’re very comfortable with one another and see a place for humor,” she says.

In fact, Ryan Malphurs compares oral argument to meeting a romantic partner’s family for the first time.. “You’re sitting down to a large dinner, and there’s nine to 12 people in front of you and they begin asking questions.”

As with your in-laws, you might want to do your homework before trying to be even the slightest bit funny. And even then, you probably still shouldn’t risk it.

Which brings us back to the opening joke from Roe v. Wade. I first learned about the joke in an undergrad class when my professor mentioned it one day in passing. But I keep thinking about it.

“It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word. Before I proceed to the original issue in this case.”

In the Court’s recording, you can hear Jay Floyd pause for nearly three seconds waiting for laughter.  And he was greeted with silence.  Three seconds with more than 40 years of ramifications.

“In this situation, which I really think is one of the biggest legal flops of all time, I think that Jay Floyd felt that he had a dead ringer of a joke that he could trot into the justices,” Coberly says.

Since first hearing about this clip a decade ago I’ve both become a lawyer and an improv comedian. Through all that I’ve had this joke in the back of my mind.  To me, the most amazing thing is not just how bad the joke was—but how bad it was for the setting.  Arguing in 1971, in the midst of a cultural revolution, Jay Floyd should have done everything he could to downplay abortion as women’s rights issue. Instead he highlighted gender roles, and in all the wrong ways.

Roe v. Wade would actually be argued a second time, and that time Jay Floyd wouldn’t get to represent the state. Jane Roe’s lawyer had been too unfocused on the first argument, but she came ready on the second trip and found an argument that would persuade the court.  In essence, with his corn-pone humor, Jay Floyd ruined the state’s best opportunity for a knock-out blow.

Maybe he should have read Section 3 of the Supreme Court’s Guide for Counsel. One of the pieces of advice in there:

“Attempts at humor usually fall flat.”

Music featured in this episode by Matthew Daher, Kyle Kaplan and the Big Basie Band.

Special thanks to Jerry Goldman, who created and maintains the Oyez Project (http://www.oyez.org), where you can find audio for all of the oral arguments featured in this piece. 

I saw Django this weekend and while I shielded my eyes from the killing of slaves, I opened them wide for the villain-slaughtering scenes in the last half hour of the film. I watched Django (Jamie Foxx) shoot a man in the kneecaps, watched the man writhe on the ground. And I enjoyed it.

Because when bad guys get hurt, I like it. We all do to some extent. Even if it’s just the retaliation of one who had to focus on her hazy shoes for several minutes earlier, gripping her armrest as a slave was ripped apart by a dog on screen. The perpetrators were guys I was glad to see die.

So when I got home and sat down at my computer to find the article on restorative justice still open so I could write about it in a laudatory way, I paused.

Why hello, hypocrite.

The debate over the purpose of criminal justice invokes theories of punishment. Possible answers to the question “why incarcerate (or punish)?” are both forward-looking and backward-looking. Forward-looking theories are rehabilitation (get them to where they’re not committing crimes), deterrence (prevent other people from committing crimes), and incapacitation (remove the bad guy from the streets, and there’s one fewer bad guy on the streets). Then there is the backward-looking theory of retribution (you get what you deserve).

Restorative justice discards these categorical approaches in order to focus on the specific situation at hand. The goal is to “repair the harm caused by the crime,” which hinges on relationships between people: victim and offender, offender and community. The set of possible solutions is larger, and communication is critical to identifying the optimal one. A restorative justice process may end in the offender taking care of the victim’s garden forever. Or receiving a five-year sentence instead of fifteen. Are these alternative outcomes “deserved?” Who knows. Are they deterring? Unlikely. Are they superior? It depends on your view of justice.

In Who’s In Charge?: Free Will and the Science of the Brain, Michael Gazzaniga discusses a study in which people who’d labeled themselves as endorsing different theories of justice were asked to allocate punishments. Regardless of whether they put themselves in a forward-looking category, nearly everyone (97%) acted retributively.

“The reasons people give for their punishments… do not match what they do. They endorse utilitarian policies in the abstract but invoke retributivist ones in practice.”

This suggests that we want to be forward-looking but we’re not. Perhaps Tarantino’s revenge fantasies are so powerful because of the vindictiveness that lies in us even as outside the cinema we pretend it isn’t so, because we hope it isn’t so.

In his review of Django, Samuel Sattin at Salon compares it to his experience watching Inglourious Basterds: “It was more like a video game in the experiential sense, an exercise in schadenfreude. Something as simple as someone giving you a joystick and saying, ‘Hey, young American Jew, you know those Nazis that sent bubbe and zayde to the ovens? As opposed to playing out that story again, why don’t spend a couple hours blowing the heads off the fuckers who were responsible. It’ll be good for you.’”

What’s probably good for us is to be reminded that our vengeful impulses are a large reason why restorative justice is such an attractive concept. To the extent that we want our more reasonable, forward-looking values to govern our behavior, it wins, because one thing it’s very much not is vengeful. Whether it “works” is a question being asked all over the globe and brings us back around to the same issue of what that means.

Read more about restorative justice here.

The sense that serving on a jury offered an exciting opportunity to people-watch vanished as the door to the deliberation room clicked shut. The weight of our responsibility as jurors suddenly struck me. We twelve strangers were tasked with integrating our disparate conclusions into one unanimous decision. This decision would dictate whether or not a man would be burned with the “sex offender” brand, and whether or not he would spend his foreseeable years in jail.

For the first time, I examined my fellow jurors. They were much, much older than me. They seemed like solid New England folk; they were high school teachers and nurses, mothers and fathers.

The first juror to speak was a woman who identified herself as a professor at a local college.

“I hope we can all agree that we want to come to some kind of decision, that having a verdict is the best outcome,” she said.

Everyone nodded. Of course, I thought, weren’t we there to make a decision?

“As humans, we can achieve collective wisdom,” she continued. “Our democracy stays alive through this collective wisdom. I want to propose that we agree to defer to the wisdom of the majority.”

The other jurors and I continued to wag our heads. Except, wait! The judge had emphasized the importance of coming to a unanimous decision. But unanimity seemed like a naively high standard. Besides, what were the chances of being the lone dissent? We agreed to abandon unanimity for the safe familiarity of majority rule. Our first act as jurors was to disregard the law. I barely registered the irony.

Our majority leaned towards innocence. The prosecutors’ argument rested on a previous conviction of the defendant for a similar crime in the same geographic area. I thought that there were too many weirdos in the world to conclude guilt from this parallel. Most of the others agreed.

The professor did not agree. She found the crime specific in its perversity. She could not accept that two distinct individuals would masturbate in public. And while she expressed skepticism of the rhinestone-bedazzled defendant, she “trusted” the glasses-wearing one. The professor proceeded to convince the majority to join her in convicting the defendant. The specific language she used dissolves in my memory, but I clearly remember the way her voice seemed louder than anyone else’s. This loudness did not reflect the merits of her argument, but rather the force of her confidence. She was an alpha intellectual, someone who assumed a position of conversational dominance with ease.

I also remember feeling very young and very invisible. I sensed from the condescending smiles and perfunctory non-responses of the other jurors that my identity as a teenage girl rendered my opinions insignificant. In a sense, the other jurors were right. My life experiences as an introverted and sheltered child limited my insights into the Way the World Works. Yet the intimidation I experienced shrunk me into mute passivity. I continued to believe the evidence too thin to convict, but I chose not to force a hung jury. I voted guilty.

Trial by jury represents a dream of an equal society. The members of our jury could easily be arranged along vertical axes of power: child vs. adult, high school graduate vs. Ph.D, woman vs. man. As jurors, these hierarchies were ostensibly leveled. The unanimity requirement means that a single dissent can destroy a verdict. It demands that no voice be glossed over, since every juror holds a final stake in the decision. This decision marks a moment when our vertically arranged society can become – if only for a moment – horizontal.

My jury experience fell strikingly short of this dream. Our dismissal of the unanimity requirement reflected our collective failure to respect its equalizing intention. Our conversations, too, reflected the vertical nature of society. Class differences manifested themselves in our deliberation; I tempered my voice according to my position in the social order, and I think other jurors – the less educated and less wealthy ones – did as well. That the dominant role in our group was assumed by a woman represented a slight upset of the normal social hierarchy, but the effect of unleveling the group was the same as if she had been a man.

The classic representation of a jury is, of course, Sidney Lumet’s film 12 Angry Men. The film depicts a jury’s deliberations over a murder trial. At the conclusion of the film (spoiler alert!), Henry Fonda’s protagonist succeeds in persuading his fellow jurors to find the defendant innocent. The audience is supposed to feel that justice has been served: Henry Fonda’s argument is the Right One. But would Fonda’s rightness have been so clear if his critics had been less buffoonish? And what if he had persuaded his peers to convict rather than to acquit?

My experience on a jury was nearly identical to the one presented in 12 Angry Men. Like the jurors in the film, we were not twelve deliberators, but one persuader and eleven persuadeds. Differences in status subtly directed the exchanges between jurors, as they did in the film. But I was not Henry Fonda. Through my silence, I allowed a possibly innocent man to be sent to jail.

Rina Goldfield lives and works in Brooklyn, NY. She teaches art and other subjects to children and adults. She sporadically makes paintings and drawings.

This is not how I expected to make the biggest financial decision of my life to date:

And so, the same technology that pings my husband “Warren G is playing. Wish you were here,” and “I just ate so many of your Christmas wasabi beans!” was essential in committing our next thirty years (fixed) to a townhouse in Brooklyn.

Tune in on Wednesdays for more.

Kate Tellers‘ stories have appeared in the New York Press, on the Gorgeous Ladies of Comedy (columnist), on xojane.com, thebillfold.com and on stages. She is a host of The Moth StorySLAMs in New York City. 

There are many kinds of laws, she tells us:

When she sits down with Ruth Bader Ginsberg, they talk about cake.

After she goes to lunch…

It ends there, this reflection on loneliness, courage, justice and order. It’s how most of her work ends–open-ended and thoughtful. She meanders through her exploration of politics, coloring in her recitation of historical fact with personal details and sincere questions scrawled over bright original portraits like these. For more, check out her inauguration and George Washington stories.

San Quentin Inmates. Photo credit: Marin County

I cannot stop thinking about a man who recently asked for my help. He had been in prison for more than twenty-five years and had just been denied parole by the board, which meant he’d be there for at least seven more. He begged me to help him argue that he was no longer a danger to public safety. He told me that the board was relying on a rules violation he committed several years back to show he was still a danger to public safety. He dug into my heart with the words, “I didn’t do the murder.” I believe him. The look of desperation in his eyes said it all to me. He told me that his wife was giving up.

When an incarcerated man or woman believes there’s something wrong with how they’ve been treated by the Criminal Justice System (“CJS”) or Prison Industrial Complex (“PIC”), they go to the only place they understand the issue can be corrected, the courts.

The courts have ruled that prison officials cannot prevent prisoners from helping one another in the preparation of papers to be filed in court. (Outside of prison, it is illegal for someone to give legal advice without being a member of a state or federal bar.) My dealings with the law in prison include filing briefs in state and federal courts at all levels, alleging every type of claim imaginable, even though the only formal education I have in law comes from graduating as a certified paralegal/legal secretary from Century Schools, San Diego in 1991.

I’ve discovered that the judicial system is structurally deficient for the least of citizens who need the most help–the person who has been sent to prison for a crime he didn’t commit. The U.S. criminal justice system has no qualm about circumventing truth as a collateral consequence of its structure. This disregard for truth coupled with mass incarceration has resulted in tens of thousands of uneducated laypersons trying to navigate a system tethered by a unfamiliar language and custom, even to the “so-called experts” who regularly practice in it. Their perplexity has bred an atmosphere of frustration by judges, who must filter through massive amounts of petitions, complaints, and writs to figure out what is the what. Deciphering fact from fiction has led officers of the court to devalue and misinterpret these uneducated peoples’ complaints. Intricate rules thwart prisoners’ ability to file habeas corpus petitions and complaints about improper or inhumane treatment.

It is incredibly sad to witness people who have a valid claim thrown out of court for some technical reason, like filing too late, or because they failed to properly “state their claim,” or they discovered a new claim after filing their original writ, and the court doesn’t want to consider a second one. These technicalities do not consider the fact that the person might be innocent or have been seriously injured by the prison industrial complex. I’ve encountered people under each of these circumstances. Is this the collateral damage built within the CJS that we’re willing to live with?  Enfranchised citizens must ultimately answer this question.

Of course there are convicts who I won’t assist for ethical reasons. What am I supposed to do when I read a complaint and on its face, it’s frivolous? People come to me by the dozens. Yet, on the other side of the coin are the people I believe are innocent.

I did not take that man’s case. Being a jailhouse lawyer demands a hundred percent commitment to a case. I could not do it because of how working in that painful arena tears me down emotionally. The toll of being rejected ninety-nine percent of the time regardless of truth, regardless of fairness, regardless of reality, slowed me from wanting to step into that quagmire of papers, courts, and legal reasoning.

And yet, now men are asking me to decipher the legal position of a new law that applies where, as an example, a prisoner with a rape or murder in his past has been incarcerated for a petty third strike under the old Three Strikes law. Under the new law, that person in prison cannot ask a judge to re-sentence him even though if someone on the streets commits a petty crime with a murder or rape in his past, he cannot be subjected to Three Strikes. The men are asking me to present an argument for due process/equal protection. I will argue that all petty third strike offenders should be treated the same under newly enacted law.

So I continue, once again tugging the long rope of the law, weary but hoping to bring justice to the under-classed and out-gunned prisoners who are entitled to it.

Juan Haines is an inmate at San Quentin State Prison. He is editor of the San Quentin News and a jailhouse attorney. 

I snatched it up then read it (for the first time since sixth grade) over breakfast. What struck me about King’s letter is how carefully he lays out an argument for when it is appropriate–and right, and in fact morally required–to break the law. He is writing to fellow clergy, and so he relies heavily on Christian theology and doctrine, but he also offers several secular definitions for the distinction between unjust laws–which should be broken “openly, lovingly, and with a willingness to accept penalty”–and just laws. My personal favorite is the poetic if vague, “Any law that uplifts human personality is just. Any law that degrades human personality is unjust.” But his most concrete definition is quite clear. Here’s an excerpt of the discussion:

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two?… An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state’s segregation laws was democratically elected?…

Difference made legal versus sameness made legal. It’s elegantly simple. King continues:

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.

Not as simple. In fact, quite complicated. When is a law that is just on its face being used in such a way that it is unjust in practice? Is it necessary to show that it’s being intentionally used to discriminate, or is it enough just to show that it does (whether or not it was intended to)? Litigation over the years since Brown has raised this question a number of times in various ways, and basically, the rule that has emerged is pretty much: it has to be intentional unless the discriminatory impact is really bad and obvious.

He goes on to claim that sometimes defying the law means showing it the utmost respect:

I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

And of course, that last sentence he wrote in a cell himself, a testament to it. Read the story of King’s arrest and the letter here.

Over the past five years, I had had unprecedented access to California’s prisons and the inmates living inside them. In 2007, I first visited the cell of Don Cronk, an inmate inside San Quentin State Prison serving a life sentence with the possibility of parole for murder.

While reporting on criminal justice issues, I noticed there were entire cell blocks and areas within the state’s prisons where no press were allowed to go, including the Security Housing Unit inside Pelican Bay State Prison.

Last October, in an interview with Scott Kernan, then Undersecretary of the California Department of Corrections and Rehabilitation I confronted Kernan with my concern the press was being denied access to many areas in the state’s prisons, including the Security Housing Unit at Pelican Bay State Prison and told Kernan many in the press had given up trying to access inmates in Security Housing Units.

Kernan responded by saying it was a fair criticism.“That’s sad,” he said. “But I’m going to tell you what I’m going to do. I’m going to talk to my communications guy and chat with him about what we’ve talked about and see what arrangements I can make and get back to you.”

Over the next five months, I followed up on Undersecretary Kernan’s promise and in February 2012, was cleared to conduct an interview with an inmate inside his cell in Pelican Bay’s Security Housing Unit.

After leaving the SHU, I pushed for access inside other restricted areas of California’s prisons, some never before visited by a reporter. That effort led to an interview with the Secretary of the CDCR, Matthew Cate – the one person who could give me final approval for press access inside the most secure prison facilities in the state.

In that interview, Cate said he would consider granting me access: “I’m happy to have a further conversation about is there some way to get access to death row in San Quentin. I do want people to see conditions there, for example, because we’ve done a lot to improve conditions at San Quentin. I go there myself on a pretty regular basis because it was pretty bad only five, six, seven years ago. The conditions were really bad. I do want people to see that. We’ve given some access to the Security Housing Unit at Pelican Bay.”

“If you’re saying five, six, seven years ago the conditions at death row were pretty bad,” I responded in the interview, “but now they’re cleaned up so maybe we’ll get death row access. [W]hat about the places where we still don’t have access? What if the conditions are pretty bad there now? You can tell me the conditions are cleaned up, but as a member of the press, that’s our role, to observe and report.”

Soon after my interview with the Secretary of the CDCR, I was notified by the department’s press office I would be the first reporter in more than eight years to go inside San Quentin’s Death Row, and the first reporter ever to visit the Protective Housing Unit at Corcoran State Prison.

All this while the state legislature debated how much press access the media should have inside the state’s prisons. After the legislature passed AB 1270 a bill that would give reporters the ability to request interviews with specific inmates, Governor Jerry Brown vetoed the bill. As a result, reporters are given “random” access to inmates.

This story begins the first of a six part series following my efforts to increase media access to prisons. We begin the series as I travel seven hours north of San Francisco to Crescent City and Pelican Bay State Prison. That’s where more than eleven hundred of the inmates considered the most dangerous and influential in the state are locked up in the state’s Security Housing Unit also known as the SHU.

Going inside

Crescent City is the northernmost town on the California Coast. Pelican Bay State Prison is a twenty-minute drive north of that. The entrance is tucked back behind a small opening in a wall of redwoods that line the narrow two-lane road. Inside the clearing, it looks as if someone has taken a giant weed whacker to the towering trees. Left behind is a barren bowl-shaped landscape filled with razor wire fencing and single story cement block compounds.

Lieutenant Chris Acosta is the prison’s public information officer. After greeting me outside the prison’s administration building, he introduces me to Warden Greg Lewis. He’s got dark hair, broad shoulders, and cautious eyes. He invites me to take a seat at the end of a long conference table. I turn on my microphone.

“I never aspired to be a warden, I’ll tell you that,” Lewis says, “but here I am. I’ve spent the last 20 years working in high security prisons.”

After months of negotiations, the CDCR press office in Sacramento had given me permission to not only go inside the prison’s Security Housing Unit, but for the first time, to interview a SHU inmate inside his SHU cell.

Now sitting across the table from Warden Lewis, it’s immediately clear he was never informed I would have this sort of access. Acosta, the Public Information Officer steps in to try to clear things up: “He’s cuffed up. That’s what we said.”

“I’m fine with whatever restrictions,” I offer.

Warden Lewis is concerned: “At this point, I’m going to allow you to interview the inmate through his cell door.”

“But Terry Thornton (the CDCR’s Press Secretary in Sacramento) said this was approved.” I respond, “I told her that was the condition.”

“That has not been shared with me,” Warden Lewis says, his voice tense.

“Well, that was the condition of my interview,” I say, looking the warden in the eye.

“Can you turn that off, please,” the Warden says pointing to my microphone. “I’m going to take a break.”

The warden orders me to turn off on my recorder. He tells Acosta to get Press Secretary Terry Thornton, on the phone. It doesn’t look good.

After Acosta leaves the room, the Warden and I continue the interview. He tells me about his prison. The Security Housing Unit, also known as the SHU, was built in 1989. He says it was constructed in one of the most remote areas of the state to isolate the state’s most influential gang members.

“I think the SHU gives us the ability to attempt to interdict and stop the communication of the leadership to subordinates within correctional institutions,” says Lewis. “I think it’s been very effective.”

Effective now maybe, but Warden Lewis says conditions in all California Special Housing Units needed to be standardized. Last summer, thousands of inmates throughout the state stopped eating to protest conditions in the SHU. That prompted Scott Kernan, the Undersecretary of the CDCR to fly to Pelican Bay to check up on the situation.

Lewis says as Warden of Pelican Bay, he joined Kernan in a meeting with the inmates: “I sat out there with Scott when he met with the inmates and it wasn’t a negotiation. It was a commitment he made to them to review this.”

Prior to the strike, Lewis says inmates inside the SHU at Pelican Bay were not getting access to the same goods and services as SHU inmates inside other CDCR institutions such as Corcoran and Tehachapi. But now, he says, that has been corrected.

“We are committed to standardizing how our SHUs operate because there is some disparity between the SHUs and their allowable food items and allowable property and television programming. We’re reviewing those so we are moving forward,” says Lewis.

But on the larger issues, such as the department’s commitment to review gang management strategies and create new SHU policies, Lewis says it’s going to take a whole lot more time before proposals are turned into policy.

Acosta returns to the conference room. I will be permitted to go inside the cell of a SHU inmate, but he will have to sit outside the open door of his cell, straddling a chair, his hands cuffed behind him, armed officers standing nearby. I agree to the terms of the interview.

Acosta then leads me out the back door of the administration building and into an electrified, high security sally port.

The two entrances to the high voltage cage are operated remotely by a guard watching from a nearby tower. That way no one can enter or exit the inmate side of the institution without being visually cleared.

As the gate on the far side pulls back, we step onto an expansive, barren field of gravel. Stretched out before us, a sidewalk leads to a compound of cement block buildings a few hundred yards away.

“That’s the Security Housing Unit,” Acosta says.

Turning to look at the wall of redwoods, I tell him it is beautiful.

“It’s where I prefer to live,” he says.

I ask whether the inmates can see the mountains and trees surrounding the Security Housing Unit.

“No,” Acosta says. “If you look here, there are no external windows in the Security Housing Unit. All the natural light that is given to them is through skylights. You can see them from here.”

He points to the tops of the buildings where low plastic bubbles emerge from the roofs.

“You can see the domes on top of the buildings,” he continues. “That’s a skylight and also on the concrete yards. Half of the concrete yards are open to the sky. But windows? The cells don’t have external windows.”

If the inmates are here for 20 years, I ask if they ever see the outside in all those years.

“Sure,” Acosts says. “Inmates go out on a daily basis on medical or transports. But for the most part, most of the time it’s done within the confines. If they’re a SHU inmate, within the SHU.”

At the end of the long cement walkway, Acosta pulls open a heavy door and walks down a narrow hallway, which opens up to an octagonal central compound. Moving deeper into the prison’s Security Housing Unit, we flash our photo ID cards again and again to pass through one sally port after another.

Stopping at one of the command posts, Acosta collects a dark green, puncture proof security vest, “We’ll give you a vest to wear to go inside.”

He asks one of the officers to give him a small size vest, then turns to me.

“You’ve been around alarms before. If there is an alarm, we’ll have you stand against the wall. We’ll stay with you. There will be a lot of responding staff with keys running by. Just stay out of the way and we’ll respond to it appropriately.”

Acosta helps me pull the heavy, stiff vest over my clothes. He then alerts the supervisor of the unit we’re going into, C 1-6, that we’re coming into his unit.

I follow Acosta into a long corridor. Overhead is a walkway where officers can patrol the area. As we move down the corridor, there are locked steel doors on either side. About midway Acosta stops and stands completely still. “If you look down here are there six units in the Security Housing Unit in this one corridor and another six down there. Each one of the units has 48 cells in it. There’s a lot of men housed down here in the SHU, but if I take a few seconds to listen, all I hear is some steps, keys, a clang.

“People think of prison being very chaotic, a crazy place. It tends to be pretty quiet in the Security Housing Unit. It’s very quiet, very controlled. People always think that some horrible, torturous environment. There’s no one chained to the walls down here. You can’t hear screams echoing off the walls,” says Acosta.

With that, Acosta turns and leads me into the central core of one SHU unit. Fanning out in a circle around the core are six SHU pods. Each has its own rusty red security door filled with small holes. Inside each pod is an open space and eight cells. Each cell has its own perforated door to allow the inmates to get access to light and air, and to talk with one another.

“People talk about the isolation of the SHUs, but when they come to the yard, they are released from their cell. They can walk the tier unescorted. They stop at their neighbor’s cells and talk to their neighbor. They go out to the shower and stop by their neighbor cells. They talk to each other all day long within their individual housing pods,” says Acosta.

While I peer through one steel door, into one of the pods, an officer in uniform approaches. It’s Lieutenant Rick Graves.

For the past 28 years, Graves has worked in the SHU and has come to respect what it takes for the men inside the SHU to survive. “What he’s got in his cell and what his routine is every day or each day of the week is his entire life. And if you mess with that routine in some way, it can really screw with some people and they can’t handle it.”

One break in their daily routine is a visit from a reporter. For some inmates, this is the first time they’ve seen a member of the press in years. Standing just outside the pod, I move my microphone closer to the door and listen in. The dozen men locked up in their cells are talking about me ­– who I am, why I’m there, and what I want to know.

Acosta waves his hand, motioning for the Officer in the control booth above to unlock this pod’s steel door.

Now inside the pod, there’s a large open area with eight cells. Four of the cells are on the floor where I’m standing. Another four are up on the second floor. Looking up, a huge skylight fills the whole area with bright, natural light.

“This is pretty much where they live, where they come out, exit out of their cell to their concrete yard,” Acosta says. “We have our showers on the lower tier and upper tier.”

At the back of the pod is a door that leads to a recreation yard.

“They’ll come out here for an hour and a half a day and get their exercise, and rotate for the next person for an hour and a half. And next person, next person, next person.”

The yard is really just a 30-foot square cement box with high grey walls. Above, half of the ceiling is covered in wire, but is open to the sky and rain. The other half of the ceiling is covered in clear plexiglass. Officer Rob Hanson is the floor cop for this SHU unit.

“Most of the yard time they spend out her,e they’ll spend right here at the drain,” says Hanson. “That’s a telephone. You can communicate through the piping system from one unit to unit to unit or through the doors. This one connects you to the pod next door.”

Graves, the other officer standing in the yard, interrupts. He says not all inmates in the SHU want to communicate surreptitiously through the drain. He says inmates who have left the gang lifestyle and have gone through the prison’s debriefing process don’t want the option of communicating with active gang members, so they allow the drain to fill with water and don’t complain when it does.

“This drain here,” Graves says, looking down at a drain filled to the top with pooling water, “No one has complained about it being plugged up. But in an active unit, the inmates would never allow that to happen.”

I ask him whether an “active unit” means they are not debriefing.

“Correct,” Graves says, “They would be complaining.”

“So,” I say, “In a way this gives them cover. The fact that it’s plugged up.”

Back in 2006, prison authorities decided to try a new tactic that would control the flow of communication in the SHU from gang leaders to their subordinates. Instead of housing gang leaders in pods throughout the SHU, they decided to move all the leaders, what one authority called all the “alpha dogs” into one isolated section of the SHU, cutting off their communication.

“It has been extremely effective in reducing criminal activity within the prisons and had an immediate effect on other prisons and out on the streets,” explains Graves.

Since the prison isolated the gang leaders, Graves says there has been an uptick in the number of inmates asking to leave their gang affiliation.

“They write a biography of their entire gang life. Everybody they knew. Everybody that required them to do something. Everything they did. Where they were at. Where they knew them. It’s a full biography of their gang activity. Then our staff takes that and compares it to their intelligence and if what they’re saying is true, then they forward them on to the process,” says Graves.

“Is it possible,” I ask, “they can just give a name so they can get out [of the SHU]?”

“The process is double-checked by our staff here,” Graves says. “They tell us if they know anything about the whereabouts of drugs, weapons, their gang activity, hits out on staff or hits out on inmates. Where they’ve been ordered to be assaulted. We follow up on all that. And once they validify his statements, they know that he has been forthright and completely honest,” says Graves.

“Has anyone come to you and said, ‘I want to debrief?’”

“Yes,” Graves says, a confident smile on his face. “I’ve had many want to start the process and I do encourage them when I interview them from time to time about other issues.”

Even so, Graves says not every inmate who decides to debrief sticks with it. “We’ve had some inmates say, ‘I don’t want none of this.’ Because everybody tells on each other [in] the debriefing process. Because they’ve lived the life of secrecy for so long and ‘don’t tell or else we’ll kill you’ mentality that when they get in, everybody here has told on each other and it’s hard on them at first. There has been a couple that I know in the last couple of years. Did that. They get in here and they think there’s a bunch of rats in here. ‘I’m not a rat.’ But you really can’t get into this program without having first told on a bunch of people.”

Leaving the yard and stepping back inside the pod, Acosta leads me to the cell of Ruben Martinez. He debriefed in 2011. Standing on the other side of his cell door, I squint to make eye contact, choosing one hole to focus my eyes on his eyes.

Martinez is a young looking man in his mid-30s with a short buzz cut, chiseled face and lean body. He’s wearing white boxer shorts and a white t-shirt. He tells me why he’s in prison: “I was a kid. I went to the liquor store to buy some beer and when I was in the liquor store, I thought we could get away with it and run out. And from that moment on, everything unraveled until somebody ended up dying behind it.”

Back in 1992, at the age of 17, Martinez was convicted under the felony murder rule and sentenced to life without the possibility of parole. He hopes that by undergoing the debriefing process, eventually, prison authorities will transfer him out of the SHU in Pelican Bay to Kern Valley State Prison. That way he’ll be a little closer to the family he now draws pictures of to fill the walls of his cell.

“That’s my grandmother up on the left hand corner,” Martinez says pointing to one of his drawings taped to the wall.

I ask Martinez whether his grandmother comes to visit.

“No. I haven’t been able to see her,” he says. “She has visited one time maybe four, five years ago.”

“Does anyone else come to visit?” I ask.

“My parents visit me. My sisters visit me, and my nieces and nephews visit me once, twice a year,” Martinez says, looking at the images on the walls.

Martinez says since he was sent to the SHU, he’s gotten a business certificate and has taken 30 units of college classes. And now because of a change in the law, he faces the possibility of parole.

We leave Martinez’ cell. Acosta says we have to hurry if there’s going to be enough time for me to interview another inmate in the SHU. He tells me this will be the first time a reporter has interviewed a SHU inmate in his cell. As we walk, Acosta explains the terms of the interview: “So what we’re going to do is we’re gonna go inside the cell. They’ll cuff him up, secure him. We’ll put him on a chair then we’ll slide the chair up and you can ask him whatever. I’ll be in there with you.”

I ask Acosta who the inmate is.

“Inmate Luca,” he says.

Robert Luca has been in prison since 1990 on a murder conviction. At the time, he was 16 years old.

When we approach Luca’s cell, Acosta tells me to introduce myself. Luca’s hands are cuffed behind him. Straddling an orange padded chair that’s been pushed up to the open door of his cell, he watches me study his 9-by-12-foot world. Wires from a set of handmade speakers lead to a prison approved television. Pencil drawings of a leopard and a woman are taped to the walls.

In front of the cement pad he has for a bed, Luca has built a small desk. The legs are made of rolled up manila envelopes. Others have been taped together to create a thick writing surface.

Luca says he joined a gang when he was 13 years old. After getting locked up, he says he fell right in with the prison gang culture: “I received SHU terms for participating in gang activity, assaults, stabbings. I was involved in.”

Then in 2011, when he was 37, Luca decided to debrief and leave the gang: “It took me some time, ‘cause I was so indoctrinated in the ideology of gang culture and life, so there was a lot of thinking behind it, a lot of soul searching.”

He says for inmates like himself, the goal in the SHU is to keep a sound mind: “You wake up early. You discipline yourself. You study. You read. You draw. You write. You do everything possible that you have access to and you take day-by-day.”

If he were still active in the prison gang, Luca says he wouldn’t be allowed to speak with me. Now that he’s out of the gang and making decisions on his own, as an independent – if incarcerated – adult, it’s a little unnerving.

“Since I debriefed, I’m learning to feel what I hope feels like… it’s undescribable. I’m very grateful to still be alive and still have this opportunity. Before I used to think I was repaying my victim by condemning myself. But all along, I can see now I was just making it about me. Me and my guilt. Me and my condemnation. Me and my pride. I’ve been able to put that all aside and make it about what it really was about all along. My penalty for a crime I committed. That’s the way it should have been from the start.”

I ask Luca if he’s done paying.

“No,” Luca says, “I’m just getting started.”

As I leave Luca and begin to make my way out of the SHU, I peer into one pod of cells where inmates are held who have not yet debriefed. Large sheets of thick plastic are screwed over the porous cell doors, making any conversation among inmates in this pod nearly impossible. Acosta says these inmates are not available for interviews. What their world in the SHU is like remains a mystery.

This summer, Robert Luca was transferred out of the SHU in Pelican Bay to the Protective Custody Unit of Kern Valley State Prison. No longer in the SHU, he was able to visit with and hug his family for the first time in 15 years.

(This story originally aired on KALW’s Crosscurrents)

My two big questions going in were:

(1) Are either of these games going to school me? (As an adult and a lawyer, this would be embarrassing.)

(2) Are these going to be as unapologetically partisan as the Reagan Presidential Library’s interactive (in-person) program to teach kids about the 1983 invasion of Grenada? (A loud BUZZ! announces WRONG MOVE! whenever a kid makes a decision President Reagan did not.)

Here’s how it went down.

Law Craft

Law Craft allows me to pick what state I represent, a guiding value, my party (of two), and whether I want to be a senator or a representative. I go with Senator Blue, a Democrat from my home state of South Carolina. I’m all about equality.

I end up with an energy bill I’m to design from a list of pre-written options. I throw in off-shore wind farms and tax credits for car sharing. It’s fun. I’m making my dream piece of energy legislation by clicking boxes. But I can’t seem to get the vote count high enough for it to pass. I start to add provisions I don’t want, but no matter what I do, I’m stuck at 50%.

I click I’M STUCK! A depressing box pops up:

Abandon efforts? Change parties? No, thank you. It is at this point that the game takes on a greater meaning for me. I want to prove to myself–and to this game, on its terms–that it’s possible to pass legislation I believe in without making unbearable compromises. I click frenetically, exploring all possible combinations of provisions. I give everyone solar panels. That does nothing. I try loosening drilling regulations just to see what will happen, but my support drops to 32%, so I re-impose them. Interestingly, when I “force people with electricity to let poor people use it,” my support doesn’t budge. (The word “force” in a bill seems a good way to force nays.)

Finally, I provide tax cuts to homeowners and farmers growing “crops that can be used for fuel.” My vote soars to 63% of the Senate, and I’m thrilled. The cusp of success! With a simple click of “continue,” the bill passes and I reconcile it with the House version, which isn’t hard. I tack on amendments until I reach two-thirds approval in case we need to override a veto (not sure who’s in office over at Law Craft). It’s a good thing I do. The mystery president vetoes it five times with a hefty red stamp, but his furious inking is for naught. Overridden!

I print out a certificate of my bill and look at it, satisfied. Then I remember my age.

Supreme Decision

In this game, which Sandra Day O’Connor promoted in 2009, I am a clerk charged with helping the swing voter justice (fictional Irene Waters) determine who is right: Ben, who’s suing his middle school for suspending him when he wore a t-shirt of his favorite band to school, or the school. It’s a First Amendment issue, and the questions presented are:

(1) Is a t-shirt speech?

(2) If it is, is it political or cultural speech, and does the difference matter?

(3) Regardless, does the school’s concern for safety trump Ben’s rights?

(4) How does a similar 1969 case (Tinker v. Des Moines Independent Community School District) bear on this one?

At all four stages, I take quizzes to prove I understand the issue and advise my justice in favor of Ben. My answers are:

(1) Yes, the t-shirt is speech.

(2) It’s cultural but still protected.

(3) No, the school didn’t show it had a reasonable expectation that the shirt would create a disturbance.

(4) Deciding for Ben comports with Tinker. In Tinker, fifteen-year-old Mary Beth Tinker and her brother were suspended for wearing black armbands to school to protest the Vietnam War. The Supreme Court ruled for the Tinkers with the caveat that if a school can show the speech would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” it can censor speech. But mere desire to avoid the discomfort and unpleasantness “that always accompany an unpopular viewpoint” is not enough.

When the game introduces the Tinker test–asking if there’s a real risk of a material interference versus mere unpleasantness and controversy–I feel bad for the confused middle school student trying to wrap her head around the difference, because I have a hard time wrapping mine. It’s a reminder that the law imposes objective language on subjective questions all the time–it has to, it’s trying to strike a balance between flexibility and consistency–but the difference between an “interference” and a “controversy” is gray and elusive and highly semantic. So as is often the case, the assessment boils down to something far from scientific: what’s this particular judge’s opinion?

My justice rules for Ben, per my advice, and so I play another round, this time siding with the school. She listens to me again and changes her vote.

Favorite line from Supreme Decision: “It’s freedom of speech, not freedom of t-shirt!”

Favorite justice: the one with a framed photo of himself holding a giant marlin.

In the End

I am pleasantly surprised that both games are indeed designed to teach the law rather than instruct in a particular point of view. The games simplify but instead of dropping a whole course of action or set of options, they distribute the simplification more evenly: stripping arguments and principles down to their most basic ideas and removing procedural intricacies. What the games manage to retain, in fact, are some of the disenchanting elements of both politics and law: the challenge of staying committed to key values in the legislative process, and the subjectivity of judicial decision-making. The cartoons with their triangular noses and colorful suits impart these realities so effectively that although I proudly ace the games, passing a bill and persuading my justice both times, I do feel a little schooled.

Google CrisisMap as of 11/6/12

Controversy over the Red Cross’s response in particular began last week and continues as allegations that it’s missing from the disaster zones are met with Red Cross insistence that it’s not. But this reported distribution of aggregate relief across the City of New York certainly makes it seem as if Upper Manhattan is the center of the catastrophe. That is far from the case.

An original tweet.

1. Mavericks owner Mark Cuban isn’t the only one who’s asked: is a tweet copyrightable? “If ESPN republishes a tweet, have they violated © law?”

2. Cuban’s second question: is “twittering” private communication to followers? #ThisWas2009

3. First, tweets are not private speech. American court says posting a tweet is “just like if you scream it out the window.” #CommonSenseGuys

4. But as public speech, who owns it? Twitter’s terms of use are clear: when it comes to your content, “what’s yours is yours.”

5. Still, most tweets pretty clearly are not copyrightable under US law. (1) They’re short phrases, and (2) they’re often facts or fact-like.

6. But some say 140 characters is more than a “short phrase” as long as it’s original and minimally creative. #HaikuMightCount

7. What storm is raging!/My socks are getting wetter!/O, to have dry feet! #LikeThat

8. But even if it’s copyrightable and I copyright it, one could argue I gave implicit permission somehow or that “fair use” applies.

9. Fair Use: a doctrine that, among other things, allows you to parody my haiku, quote a short portion of it, or criticize it. #WhatsToCriticize

10. But a haiku is already so short. Is a “short portion” just the socks, or the dry feet, too? #GetsRidiculousFast

11. The constitutional arg: copyright is to promote creativity, but tweeters will tweet without the ©. #FirstTimeEverThe©AutocorrectInWordUseful

12. Twitter the parent stays out of tweet drama: “We do not intervene in personal disputes between users.” #WisePolicy

13. As a result, it’s the wild west out there. #SeeFollowingThreeTweets

14. “DeQuan Foster ‏@mrdefoster #HighSchoolMadeMeRealize that an inner city kid can really change the world if he believes in himself”

15. [Reply] “Danny‏ @youngxJFK @mrdefoster you stole my tweet in a way #plagiarism”

16. [Reply to the reply] “DeQuan Foster ‏@mrdefoster @youngxJFK i just saw your tweet after I posted mine”

17. The “in a way” in Danny’s accusation speaks to the vagueness of tweet theft. How many identical characters count as stealing? #AlsoIsFunny

18. Another: “Harley Morenstein @harleyplays @menshumor steals tweets from [X] and she’s not a man. This must mean all of @menshumor is a lie!”

19. Turns out, @menshumor is often accused of stealing tweets. This angers some who say they profit from it via their 2 million+ followers.

20. Entrepreneurs have entered the fray. Type in your username here to pull up all recent potential instances of tweet theft. #Nifty

21. Rather, if you’re feeling generous and want to be clear that others can republish your tweets, you can license them. #GiveAwayCopyrightYouDontHave

22. Is granting explicit permission to republish your tweets unnecessary if legally they don’t need it to begin with? #InAWay

23. But in a user-run and -regulated space, any means to communicate what individual users do and don’t endorse seems good. #TheMoreYouKnow

24. Sorry tweebs who want twieves brought to justice. But remember, tweet theft is the highest form of flattery. This guy knows:

25. “Jake Heath @jakeoramaheath No one has ever stolen one of my tweets, but if they did, I would be thrilled.”

Apple Arrives in Grand Central

Rules, Norms, and Waiting Around

Income

Trash Goes Here

Bikes Go Here

Lawyer To Be

Representing Injustice (Pratt Institute)

Photos by Mary Adkins for TLOTL.

University of Chicago Chronicle

Earlier this month, Maria Popova over at Brain Pickings dug up an inspiring letter from Martha Nussbaum, American philosopher and professor  at the University of Chicago Law School. The letter was originally published in Take My Advice: Letters to the Next Generation from People Who Know a Thing or Two edited by James Harmon. Popova quotes a large portion of Nussbaum’s richly personal and inspiring letter. A bit of Nussbaum wisdom:

Do not despise your inner world… Our emotional life maps our incompleteness: A creature without any needs would never have reasons for fear, or grief, or hope, or anger. But for that very reason we are often ashamed of our emotions, and of the relations of need and dependency bound up with them… So people flee from their inner world of feeling, and from articulate mastery of their own emotional experiences…

Nussbaum ends up offering two pieces of advice: (1) not “to shrink from the needy and incomplete parts of the self” but to “accept those with interest and curiosity” and (2) to “read a lot of stories, listen to a lot of music, and think about what the stories you encounter mean for your own life and lives of those you love.”

It’s advice meant for us all, in the legal profession and out. Looking for law-specific instruction? Check out Alan Dershowitz’s Letters to a Young Lawyer.

Hubblesite.org

Space is big right now. On Sunday, Felix Baumgartner jumped from the stratosphere, setting records and gathering data for NASA. Reserving a spot on one of Richard Branson’s Virgin Galactic space flights seems as straightforward as booking one from New York to Miami (book here). You can apply for a job in the asteroid mining industry or, if that’s a little too space-y for you, go hear this guy speak about sending a bunch of photos to orbit the earth for billions of years. (I got to hear him in Bryant Park last month–what a project.) Finally, for the first time ever, a private spacecraft just delivered cargo to the International Space Station.

I talked to space law expert and law professor Joanne Irene Gabrynowicz about what the evolving and expanding nature of space activity means for law.

What is space law?

Gabrynowicz: Wherever human beings go, they will have issues and problems that they will have to address, and whether it’s on earth or the high seas or Antarctica or in space, we will need to enter into agreements, have contracts, draft treaties–all of that stuff. Space law is addressing what human beings already do, but in a different context.

So what does that look like in the case of space?

NEW ORLEANS:  There are a lot of languages spoken these days on Louisiana’s Gulf Coast, many beyond English, Spanish, and Creole French.  One of the big languages here now is Vietnamese. As refugees started coming to the United States after the Vietnam War, quite a few made their way here for one big reason: fishing.

Those immigrants who already knew how to fish found they could make pretty good money in the Gulf. Mini-fishing empires developed. But then disaster struck.

Daniel Nguyen is Vietnamese-American, born in Louisiana. “IIt all started April 20, 2010. I remember that day,” Nguyen told The Life of The Law.

On that morning, a fireball swallowed a deepwater drilling rig in the Gulf of Mexico. None of the fail-safe mechanisms worked, and the well began vomiting thousands of gallons of oil in what would become the largest oil spill  in U.S. History.

Nguyen described how he got involved with relief efforts. “At that time, I was still bussing tables downtown, and a friend of mine came to eat at the restaurant that worked here and said “look, the fisher folk are displaced….we need interpreters. So, I said ‘OK, I’d be willing to volunteer my time.’”

The Vietnamese fisher folk had largely been self-reliant. But self-reliance wasn’t enough as the BP disaster tossed them into a foreign world—that of the US legal system. A complex claims system was the only way they could get compensation for all the income they were losing as fishing shut down in the Gulf.

Vietnamese immigrants made up roughly a third of the shrimpers here, and shrimpers were hard hit. For them, the spill illustrated how fragile their solid livelihoods really were.  And Nguyen says, it showed how much the outside world didn’t know how to communicate with them.

“BP had people coming in from Vietnam who were using the wrong dialect, offiensive dialects. There’s post and pre-1975 language. With post-1975 language, you have a split, you have American-based Vietnamese and you Vietnamese-based Vietnamese, and that’s considered Communist Vietnamese, so they were using Communist terminology, which was really offensive to people here, who fled from the Communist regime.”

Nguyen says the Vietnamese community in Louisiana started getting organized after Hurricane Katrina.  But the community development organization where he volunteered, MQVN,  had a whole new set of problems on its hands after the BP disaster

 ”We had 50-100 fisher folks lined up outside of our office starting at midnight.”

Daniel and his colleagues were helping people file compensation claims with the Gulf Coast Claims Facility.  In the process, they found out that those in the fishing community weren’t just losing income—they were losing their own food supplies as well. Vietnamese fishermen relied on their catch to feed their families, and to barter for other goods and services. But he compensation process was aimed more at purely commercial fishermen.

Nguyen explained that important elements of the industry were ignored. “One of the things that wasn’t being compensated for was subsistence use.”

Leanne Hanh sells her catch at a New Orleans farmers market on weekends. She was born in Vietnam and came to the U.Sin 1983, when she was 13. She came to Louisiana when she married. Her boat and her husband’s were grounded after the oil spill, but BP had promised to rent local fishing boats during the cleanup. Hahn says for her, that never happened.

“I do own a boat, too. And it’s go now, too, but then they didn’t call me to work, and we had to wait. Because everybody signed a contract, so we all have to wait to hear the phone call, sit at home to wait for the phone call.”

But fruitless waiting  or bad interpreters weren’t the biggest problems facing the Vietnamese fishing community in Louisiana. “After the oil spill there was a lot of people who um, felt that they were signed up for legal representation without fully knowing it,” Nguyen explained to The Life of The Law. “And then lawyers, or the attorneys would just take their claims and checks and we couldn’t really do anything about it because they were represented by an attorney.”

Nguyen and says the whole experience made clear vulnerabilities that some in the community had already perceived. But despite the bad experience they’ve had, many are still turning to the

legal system to try to regain some of what they lost from the oil spill. Some have joined class action suits against BP in the hopes that bundled together, their claims can make a dent in the system.

Attorney Ravi Sangisetty is a Louisiana native who’s working with the Vietnamese community on their claims. He described some of the barriers he has come across.

“Speaking to you about what I think about the legal system, there’s just in general a lack of access for poorer or middle class folks. Uh, I mean I get it all the time, I can’t take the case, or I can’t take this case or that case because it’s just, they can’t afford it. I mean, if we’re talking about communities that are disadvantaged in a  lot of ways, those problems are exacerbated. It’s just even worse.”

Sangisetty is optimistic that the class action suits may succeed where individual ones failed, if only because private attorneys will be more interested in the profit from representing many clients at once. And, in binding together as a class, the Vietnamese fisher folk may have found an approach to the legal system that best matches their own immigrant experience. “You’ve got a real self-sufficient attitude,” Sangisetty affirmed. “And they’re insular in that they will rely on members of their community and kind of navigate a disaster like this together.”

BP offered a settlement in April of 2012, but many fisher folk worry the spill could create long-term problems for the ecosystem they depend on. Scientists are trying to determine the spill’s impact on Gulf marine life. There are no guarantees that the fisheries will bounce back. But the settlement is on the table right now. That creates a dilemma for Vietnamese fisher-folk. They have to decide whether to chart a course towards class-action, or tie up at the dock, take the money, and give up the right to future claims.

Dump at Your Own Risk

Waiting to Cross

How to Build a Stadium

Standing in Line

How Tall, How Wide

On a Leash

Double Yellow

America the Beautiful

Photos by Mary Adkins for TLOTL.

David Shayne writes for television and is a proud member of the Usual Gang of Idiots at MAD Magazine. If anyone wants to invite him to play basketball at the Supreme Court’s court, he will bring his dress shoes. (drawn by the late MADman, Dave Berg.)

During my junior year at Columbia, I began to think about my post-college life and wrestled with a decision so many other privileged, Jewish Ivy Leaguers before me had faced: Lawyer or comedy writer? I hedged my bets by taking a poli sci class on the history of the Supreme Court, followed by a summer internship at MAD Magazine.

The course was fantastic — a survey of the Court’s greatest hits (or, in the case of Dred Scott, its lowest moments). We read decisions and dissents and discussed them in depth. We were also assigned Bob Woodward and Scott Armstrong’s 1979 best-seller The Brethren, a self-described “account of the inner workings of the Supreme Court from 1969 to 1976” in which Woodward and Armstrong interviewed more than 200 people, from former clerks and Court employees to several Justices. They approached the endeavor as two laypeople with no expert legal knowledge who hoped to understand the complete process as Court cases go from the granting of cert all the way to the final decisions and dissents.

I had taken an overly ambitious courseload and had to triage — reading only what I was absolutely sure was going to be on the exam (the chapters on Roe v. Wade). So that summer, during my MAD lunch hour, I sat under the AT&T building on Madison Ave. and read The Brethren. I devoured the book, and it changed my view of the Court forever. Up until then, I had imagined the Supreme Court Justices as black-robed legal gods on Judicial Olympus who didn’t so much write their decisions as bestow them. But the book painted them as mortals, men (it was only men then) who wrestled with their decisions, argued, bickered, made jokes and relied on their clerks to help them manage their enormous workloads. (Made me feel a little better about my own aforementioned reading triage.) It was certainly gossipy in spots, with plenty of details on the sausage-making, and the end result was that it made the Justices human.

Hack basketball player that I am, my favorite parts were the stories of the clerks blowing off steam in the middle of the long work day by squeezing in a game or two of hoops on the Court’s fourth-floor basketball court. Best detail: Even though street shoes weren’t allowed, the clerks tried to get in just a little more game time by playing in them anyway… at least until Rehnquist saw to it the ban was strictly enforced. Sure, he was making decisions that would affect American life for decades to come — from the Pentagon Papers to the Nixon tapes — but he still found the time to be a major buzzkill.

As much as I enjoyed it, The Brethren didn’t inspire me to go into law. Maybe the thought of being so crunched for time in my professional life that I’d have to play basketball in wingtips was what finally pushed me into comedy. I parlayed that MAD internship — a  comedy clerkship of sorts — into a job as Associate Editor, eventually moving to Hollywood to write for TV. But The Brethren did turn me into a Supreme Court junkie who each spring eagerly awaits the Court’s latest decisions. I have crushes on Nina Tottenberg and Linda Greenhouse. And I bore the writer’s room with a long-winded, faux-authoritative explanation of not just the importance of National Federation of Independent Business v. Sebelius as it affects public policy, but how in that case Roberts’ decision to switch from the conservative majority and uphold Obamacare was, in and of itself, a huge story.

Then we get back to making fart jokes.

Still, every now and then I wonder what would have happened if I had taken the legal path. Maybe I would’ve landed a clerkship on the Supreme Court. Maybe I would’ve helped some of our greatest legal scholars — and Scalia — wrestle with the most gripping Constitutional issues facing our nation.

And maybe I would’ve gotten to shoot hoops on the fourth floor.

The law doesn’t just appear. It’s made, and in this country, it’s made by people we elect. Whether or not you’ve noticed (Steve Martin recently tweeted, “Is the election this year or next year?”), election season is upon us.

I remember voting for Bush in my kindergarten’s mock election of 1988, because I’d asked my dad on the way to school who he was voting for, and he said Bush. I didn’t know who Dukakis was until another little girl in my class told me she was voting for him. I thought she must have bad parents. Where did I get that idea? My parents weren’t the kind who railed about politics at home. On the contrary, we hardly talked about it. Still, somewhere along the way, I’d picked up partisanship. By age 5, I understood that if my people were on this side, that side must be wrong.

Election politics have changed dramatically since the Bush-Dukakis days (see the internet), including school election politics, which now take place largely through social media. But some things about elections haven’t changed—in adult politics as well as kid politics. A morning watching vote-for-me-for-student-body-president videos left me with the distinct impression that, when it comes conventional election tactics, kids and adults aren’t that different. Both:

1. Seek to charm but avoid substance.

2. Promise things that will never happen.

3. Embrace melodrama.

4. Outsource speechwriting.

5. Hand out signs, then document people holding them.

If you watch enough of these (and since life is short, I don’t recommend it), however, you will notice one major difference: how much more fun kids have campaigning than adults. It’s as if they’re aware the stakes are low, so they make fun of themselves for running even as they do it. Adults, with the possible exception of Herman Cain, don’t exhibit this luxury, and understandably so–the stakes are high. Defense and healthcare aren’t prom or better vending machines. But does properly taking the stakes seriously require taking the election process so seriously? I’m not so sure.

Perhaps this was why, in a way, watching Cain over the past year felt—I admit it—kind of refreshing. Remember the ad where Cain’s chief of staff Mark Block smokes a cigarette? And the rabbit one?

They may not go over well in the adult world (Cain’s out of the race, after all), but ads that blur the line between earnestness and self-ridicule—that mock, in effect, the competitive process in which they’re participating (which is, often, outlandish)—make good kid politics. And there’s something pretty likable about that.

From NPR: “No one had ever actually sat down and gotten the home street address of everyone going into prison and jail, as well as all the background information about their age and their employment status, etc. And when you have all that data, it tells you a lot about what’s going on on the block.

“When we look at the million-dollar blocks that we mapped almost a decade ago, it’s a highly concentrated group of public housing, and smaller apartment housing, all grouped together in a very concentrated manner — each of which we were spending more than $1 million a year for.

“But today when … we see those blocks, things have changed quite a bit. There has been a real investment by the city and the state, and particularly the Department of Probation, to engage with local organizations around the community and strengthen what they’re doing.”

Shon Hopwood’s New Book

In last week’s podcast, we talked about jailhouse lawyers—inmates practicing law on behalf of themselves and others. The most famous jailhouse lawyer in recent history is Shon Hopwood who, while in prison, successfully petitioned the Supreme Court to hear the appeal of his fellow inmate, John Fellers. The Court granted his request—one of only eight petitions granted (out of 7,209 filed) that year by prisoners. The Court then ruled unanimously in Fellers’ favor.

Seth Waxman, former Solicitor General and one of the country’s most respected Supreme Court advocates, represented Fellers and called Hopman’s cert petition “probably one of the best I have ever read.” That’s not bad for someone who had never been to law school.

You can read Hopwood’s petition here.

Hopwood, who published a book about his story this summer, started law school last week at the University of Washington.

Davis Park is on the East side of the river. It has the perfect combination of shade and privacy for people to hang out, let loose. Teenagers used to come here to make-out, or drink some beers. Now, on hot days, it’s where many go to cool off, including the ‘down-and-out.’

On the West side of the river, where I live, things like birding, jogging, and swimming are the norm. It is a different kind of park over here.

I am riding along with Officer Marc Tisher as he patrols his beat of more than 50 city parks. We stop at an intersection and I see two tanned guys chilling at a bus stop. Tisher rolls his window down and gets their attention.

I recognize the men. For the past two summers, these two have often made Davis Park their daytime home. In a way, they have come to represent the character of the park. “You guys been keeping Davis Park clean for me?” Officer Tisher asks them.

“Yeah,” Matt, one of the men answers in an upbeat, friendly voice, “We’re going to the rapids. So meet us down there.”

Tisher laughs and says, “Alright. Are you guys going to body surf it today?”

Matt replies, “It’s eighty, I might get wet.”

It’s a light hearted moment of laughter on a hot summer day.

For years though, Davis Park’s shenanigans went un-policed, so Davis Park has become the place, which all cities and towns have, where local customs are at odds with city laws. But about a year ago, the parks department proposed building a bridge between the two sides. That got people’s attention on my block.

Paul Stell is the Natural Resources Manager for the Bend Parks and Recreation District. He says they’ve tried most everything to enforce local laws and regulations in city parks. The Parks Department even got rid of the park rangers, “Because they did not have full authority,” Stell says, “because they couldn’t make citations or arrest or you know, carry a fire-arm and take care of business.”

Now there’s a parks cop. That’s who you met earlier, Officer Tisher.

The increased law enforcement, Stell says, is necessary because city parks still serve a critical function. “On a hot summer day it’s a great place for anybody. They can be there from when the park opens ‘til the park close. And if they don’t have any other place to be that’s a good place to be but there are rules and we need to follow the rules. That’s the only issue.”

Here in Bend the rules are basic; no criminal activity, no endangering the peace and safety of others, no drinking alcohol or possessing an open container without a proper permit. If people can agree to this, Stell says, those living close to city parks have an obligation to “let it be” for the entire public.

“Living next to a park is a commitment,” Stell says, laughing.

Stell does not finish his thought. But I know what he means. Residents have no control over public land bordering their property. And there is a steady flow of different people and habits.

On my block, some homeowners, want to project their idea of how the other side of the river should be. People on the West side engage the police like my neighbor, who I’ll call Sam. She didn’t want her real name used. “You know, we tried to figure out how to solve this problem.”

I ask, “What problem?”

“The problem,” Sam says, “of unhealthy and unsafe behavior dominating a small community park.”

Sam says a group of men show up around ten each morning in Davis Park.  They claim a picnic table and spend all day there, drinking and smoking. “And that would happen every sunny day,” Sam says. “Two people would come and secure that picnic table. The hotter it was, the earlier they’d come. So that they’d make sure they had it for the whole day.”

I ask Sam what she means by ‘unhealthy.’

“Unhealthy is open container drinking,” she says, “people getting so intoxicated or high on something that they’re yelling at people in the park and across the river, including children.”

Marion Davidson lives across the street from Sam. She’s another block matriarch. She also wishes Davis Park felt less menacing. But says she still likes it here, “There’s a wildness about living next to moving water the voice of god as the Old Testament says. The sound of water, is… I forget but you can look it up.”

Marion says people in Davis Park should be more discrete. “Being part of the community, if you are going to drink, you should do it surreptitiously rather than out in the open and not get so drunk that you yell at people and cause a disruption. I mean it’s against the law having an open container in a park I do believe.”

Marion is a retired lawyer. She spent decades representing people like those across the river. But the way she says that, ‘it’s against the law,’ it’s an easy way to make a grey situation black and white. We all do it. So I push her to give me a sense of how she feels about it on a human level.

“You know what I was thinking about was when I went to college?” Marion asks me as she prepares a summertime meal. “We studied the contract philosophers; Locke, Barclay, and Hume. And the problem with Davis Park is there are some folks that really don’t have any reason. They’re homeless and down-and-out. Sound like having issues with drink and drugs and so they have no reason to abide by the rules of the community. So there is no social contract. So the question becomes well how do you enforce laws with people like that?”

“My name is Chris Clouart, Managing Director of the Bethlehem Inn, Central Oregon’s largest shelter serving men, women and families.”

Marion got me thinking about social contracts and how exactly we establish customs and laws in places like Davis Park. Clouart, a longtime Bend local, says for a city the size of Bend, the scale of social services here is too small. That means individuals in our community must provide support. And Clouart says, that support is not just food and shelter. “It’s a wonderful quote,” Clouart says, “which is that the law prohibits equally a rich man and a poor man from sleeping under a bridge. A rich man would never need to sleep under a bridge. But the thought that there’s a sense of equality, that there’s an equivalence there, is ridiculous. It’s absolutely ridiculous.”

Bend has an oversupply of brew pups and golf clubs. So if a person with a bit of disposable income wants to crack a beer on a hot day, they’ve got plenty of places to go. But Clouart says many people in Bend have a tough go of it. “Their choices in life are fairly limited. So if you don’t have much money and it’s a nice summer day, where are you going to go? You are either going to go to a library, or your going to go to a local park. Which is your park as much as it is anybody else’s park. The question has to be what are the modes of behavior in that park?”

Clouart makes an important distinction between law and custom. “So, law is the thing we tell ourselves we want to do, custom is what we allow to happen.”

Right now, those two concepts are not aligning at Davis Park. Clouart is a humanist. He sees the need for dialogue between all the park’s users. But until that happens, it falls to the police to decide what’s allowed and what isn’t.

Tisher and I are back at the bus stop where we ran into Ron and Matt. After they head off to the river, Tisher shows me their records. He points out a few thefts and DUI charges from back in the early 90’s. After a few more hours driving around, Tisher decides to check in on Ron and Matt at the park.

We are on the West side of the river, looking into Davis Park. We bump into my neighbor Marion walking her dog, “Everybody’s out. It’s sort of like  Alaska. This is one of the first lovely days. Everybody’s sort of getting their sun. Hey Officer Tisher. Our champion. I have a spotting scope if you need one. ”

Tisher jumps in his patrol car. He says approximately six people are partying in Davis Park, among them, two guys on parole who shouldn’t be drinking. They could possibly face jail time. Tisher also says one of the parolee can be difficult when he is drunk so he calls for a backup. By the time we have driven Davis Park, two officers in a police car pull in behind us.

Tisher questions Ron, Matt and another guy I know as Mr. Mills. Tisher is interested in their backpacks. He scans for open containers. “How about the main container or the main pocket?” asks Tisher, pointing to a backpack.

Ron Fields, the man Tisher is speaking to about his backpack asks if Tisher has a warrant.

Tisher says, “This is what I got to do.”

Mr. Mills says, “I got closed beers in there buddy. Closed ones, all right?”

“That’s all right,” Tisher says.

The conversation escalates. Tisher demands Mr. Mills take a seat, “Mr. Mills sit down right there.”

“Ok.” Mills says. “Whatever dude.”

Mills face reddens. His muscles tighten. About now, Tisher calls for a third backup. He then asks Mr. Mills if he is on probation.

“No I’m not on nothing buddy,” says Mills. “Not since August 8th of 2000, homeboy.”

“Why are you upset, Mr. Mills?” Tisher asks.

“Because,” Mr. Mills says, “You want to walk around here and throw some guys around here. Let me get the hell out of here. This is the last time. I ain’t coming down here no more. Every time I come down here the police show up.”

The fourth officer shows up. Ron, Matt, and Mr. Mills all seem glad to see him. “Hey,” Mr. Mills says, “It’s about time.”

Officer Tisher opens his ticket pad and writes Fields a citation and an exclusionary notice, meaning he cannot enter a city park for three months. Here’s how Ron Fields feels about all this.

“Mr. Tisher?”

“Mr. Fields.”

“We’re not friends anymore,” says Fields.

Tisher replies, “You told me that three months ago.”

“I know,” Fields responds. “We’re not friends. I ain’t hurt nobody down here.”

“This place cleared out pretty fast,” Tisher says. Tisher and I walk back to the police car. As we walk along a gravel path, Tisher asks if I noticed how fast this situation could have gone “south.”

Had I been watching this scene from across the river, besides the cops, it would have seemed normal; Ron, Matt, and the merry-makers pretty much keeping to themselves. But here is the thing. I am at the river daily. I notice most people break some sort of law or rule here; some drink alcohol openly, dogs run amok off-lease–all against city code. And I’m talking most visitors, just regular folks. No different than Ron and Matt, whose biggest crime perhaps is treating Davis Park like their living room. Yeah, I have seen Ron and Matt get too drunk, yell at people. But it has been rare.

There has been no dialogue. No discussion of what the customs in Davis Park should be. The law has been enforced, but I’m unsure we have made our block a better place. Certainly it is less welcoming. And the band of rag-tag men- they will simply move on, maybe to another park. The problems unresolved.

Later this summer, on another scorcher, I floated a section of the Deschutes with my two children. Life jackets on, we jumped in a mile upstream from downtown. We carelessly floated, our bodies bobbing all the way. Near downtown, we got out and sun dried. I looked across the street at the bus stop. There stood Matt, one of the usual suspects at Davis Park. Although this time he did not look the part. His body exposed to the sun, his arm around his little girl. He had been floating the river too.

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From Daytum.com

But do people care? I discovered Felton only recently and was surprised, when I clicked on his site’s “shop” button, by what had sold out: everything. Every copy of every edition published since the project’s inception. People, it turns out, are interested in Felton—or, at least, in what Felton is doing with Felton, and it’s not such a mystery why. The scope of his project is impressive, the premise is clever, and the product is pretty. So Feltron Reports are all bought up.

Then, I had a jaded-lawyer moment. I thought, I hope he doesn’t end up in a divorce proceeding.

A reality of litigation is that a surprising amount of resources goes to trying to recreate the past. How much money did she spend last year? Did the average employee work thirty-five hours a week or forty? What was he doing for those two, critical hours on February 16, and did the Franklins fly Jet Blue or Delta more often?

Speaking of the unknown past, I don’t know how many hours I spent, as a law student, perched on benches in the hallway of New Haven family court discussing with clients of the law school’s clinic the same kinds of questions Felton tracks so carefully. It sure felt like we were forever scrutinizing the court’s standard financial affidavit, a form of empty boxes that generated an impossibly detailed inquiry into the tedium of life: how much do you spend on clothes in a year? Entertainment? Do you go out to eat once a week or twice, and by the way, how many miles does the Ford get to the gallon? (These were to determine cost of living, an important number on the form.)

The same numbers Nicholas Felton spins into masterpieces we scribbled hurriedly on the backs of file folders, sloppy arithmetic that was constantly recalculated as memory became more vivid during the minutes before hearings. No, the drive to the babysitter’s is more like twenty-five miles, and the tire blew in December, not March.

Most of us don’t keep meticulous records of the routine humdrum of our lives, although that could be changing. Enter Daytum, brainchild of Felton, a platform to help you “collect, categorize, and communicate your everyday data,” just like him. Users can make their “everyday data” publicly visible, and you choose what you track.

Jarrett Fuller, for example—a public user—tracks and reports in six categories: movies and shows he watches, restaurants he goes to, cities he spends time in, how much coffee he drinks (and where), and subway rides (frequency of particular line is recorded, along with the date and time of his rides).

What could this mean for law? It could mean a lot, and at the same time. It could make legal proceedings more efficient, and more vicious; more accurate, and more rigid; more subject to who we were than who we are; and more subject to a moment logged on an iPhone eleven months ago than to present memory, with all its contours and caveats.

On one hand, if Jarrett needs an alibi for August 14, 2012 at 8:13pm, he has one: he was on the Q train. On the other hand, if Jarrett needs an alibi for August 14, 2012 at 8:13pm, he’s out of luck: he was on the Q train.

In a time when we readily publicize the minutiae of our lives, creating a trail of information that could be helpful or harmful to us down the line, it will be interesting to see how that trend shapes conventional means of reconstructing the past in legal proceedings—and whether the possibility of ever becoming one half of a case name, in turn, has any effect on the trend.

First, there was Foursquare. Then, there was Instagram. Now, there is Daytum. If we begin to see ourselves as no more than pink pie charts, will the courts, too?

By Fovea Centralis. Not Bill Cosby.

Bill Cosby is going to die one day, and when he does, he doesn’t want you using his image without permission. Cosby is reportedly the impetus behind a Massachusetts bill to extend the Right of Publicity—the right to control the commercial use of one’s identity—post-mortem. While some version of the Right (or “RoP”) exists in most states, only 18 currently extend it past the grave. Of these, they vary in how long the Right survives its birth-human. In California, it’s 70 years; in Oklahoma, 100; in Tennessee, it’s forever as long as the heir is actually doing something with it (you don’t use it, you lose it).

We’ve long debated when life begins and ends—or at least when it should begin and end for legal purposes. This latest matter, roughly of the “when should it end” variety, strikes me as a good example of how strange the law can seem sometimes. Why a 70-years-after-death cut-off, or 100 years? How about 65 or 99? How about zero? (New York doesn’t recognize the Right post-death, at all.)

The law has to draw lines, but in many areas of life, there isn’t a clear place to draw the line that needs to be drawn. As a result, the line that is drawn often has the effect of seeming arbitrary, crude, even brutish. One day, having sex with a teenage girl is rape; the next day—literally—it isn’t. We know some kind of statutory rape prohibition must exist, but that one can be guilty of it at 11:59pm but not once the clocks strikes 12:00am feels bizarre, absurd.

While the law could never actually identify when life begins, ends, or at what age one suddenly becomes emotionally mature enough to be considered an autonomous adult, by choosing the parameters of the laws that raise these questions, it can feel like a kind of morbid charade—as if we are taking questions that have very complicated answers and throwing simple solutions at them, knowing they lack important nuance. That can be troubling, and to many, offensive, immoral, or oppressive.

What does where we draw the lines we draw say about us? Even more basically, what does the fact that we routinely draw these lines across grey areas, then call the two sides black and white, say about us? It is easy enough to imagine sliding scales, or equations tailored to various circumstances—structures that provide boundaries but that aren’t such poor matches to reality. Maybe what it says is just that we’re not there, yet.

In recent years music and film have seen many legal battles over copyright violations. From the sample battles in hip-hop to everyday folks using big studio movie clips in their own You Tube videos.  Those court cases have spurred a larger ideological battle over intellectual property. On the one hand, some artists argue that the copyright  protects the creators, insuring they are paid for their hard work. On the other hand, many creators claim that the strict copyright laws limit creativity.

The world of fashion has remained comparatively untouched by these disputes. In this Ted video, Johanna Blakely explores how that has impacted fashion and what it might have to teach other industries.

“Now, those of you who are familiar with the logic behind copyright protection – which is that without ownership, there is no incentive to innovate – might be really surprised by both the critical success of the fashion industry and the economic success of this industry. What I’m going to argue today is that because there’s no copyright protection in the fashion industry, fashion designers have actually been able to elevate utilitarian design, things to cover our naked bodies, into something that we consider art. Because there’s no copyright protection in this industry, there’s a very open and creative ecology of creativity.“

photo by Colin Whittaker (http://www.flickr.com/photos/colinwhittaker/)

Today’s New York Times carried an op-ed by Cass Sunstein, Harvard Law Professor and LOTL contributor (see his Inquiring Minds post). Sunstein collects studies of opinion and polarization and argues that contrary to conventional wisdom, hearing a balanced argument actually leads to people to become even more set in their beliefs.

You might expect that people’s views would soften and that divisions between groups would get smaller. That is not what usually happens. On the contrary, people’s original beliefs tend to harden and the original divisions typically get bigger. Balanced presentations can fuel unbalanced views.

What might this mean for people entering the jury box?  Lawyers and judges generally try to pick a jury of people without strongly formed opinions of a case.  But we all bring our biases to bear in hearing a case. So does hearing two sides of the story not actually help jurors come to the right conclusion (whatever that may be)?

By Jason Swaby

Earlier this summer, the Eighth Circuit Court of Appeals ruled that it’s okay for South Dakota to require physicians to tell patients that abortions put them at an “increased risk” of suicide. Planned Parenthood v. Rounds surprised many because of what “increased risk” means in this case: mere correlation.

Invoking a number of authorities including the legislature’s intent, the statute’s grammatical structure, and standards in medical research, the Court of Appeals found that since getting an abortion means you take on a feature (having had an abortion) that is associated with a higher suicide rate relative to people who lack that feature, it is acceptable to call this “increased risk.” Then make doctors call it that, too.

The rub? While “increased risk” implies that the procedure is what’s increasing the risk, there’s not actually any evidence for this in the case of abortion and suicide. In fact, there’s quite a bit of evidence showing that it’s not the case.

It’s like walking into a retirement home and being handed a piece of paper informing you that living there puts you at increased risk of having grey hair. Grey hair may be prevalent in the home because its residents are, well, old, but it’s not the home that’s causing their grey locks or balding scalps (depending on the retirement home, I suppose). (The only problem with this analogy is that grey hair is certainly far more prevalent in nursing homes than suicide is among any group, including women who have terminated pregnancies.)

Nonetheless, the Eighth Circuit has declared otherwise. If one group has a greater likelihood of X relative to another group, the government may insist that doctors warn of an “increased risk.” What other groups, then, increase our risk of suicide? Here are a few more:

Next time someone tells you he’s thinking of moving to Canada, you may want to warn him.

Paul Butler grew up in a black neighborhood on the Southside of Chicago. He was a smart, talented kid and ended up going to Harvard law school. When he graduated, he wanted to do something to give back to his community. Crime was at an all time high and he knew black people were the most likely people to be crime victims. So he became a prosecutor. “I thought I [was] going to go in as this undercover brother and make a difference from the inside,” he said.

But as a prosecutor, Butler’s biggest job was to put people behind bars, “And it turned out I was good at that,” says Butler. “I was this clean-cut black guy and most of the jurors were these older black people. They would just beam at me when I said my name is Paul Butler and I represent the government. They’d be like, you go boy. They’d almost do whatever I wanted”

Almost. Except when it came to petty drug cases. Even when it was very clear someone was guilty of a drug crime, juries came back with an not guilty verdict. Butler was confused, “Why would they let someone they knew was guilty of a drug charge go free?”

Then, one day, he was prosecuting a routine crack cocaine possession case.

“The defendant was a young, good looking African-American kid. And the defense was something like, ‘Yeah, the police caught me with the drugs, but they weren’t mine’,” said Paul, laughing. “I was like okay, for the law it doesn’t matter, it’s what’s called a strict liability crime. So you’re guilty. The judge even told that to the jurors.” Paul was sure he had this one in the bag.

“But then the jury came back with a big fat not guilty. I was like, Oh my god! What’s up?”

Paul waited outside the jury room. And as the jury filed out, he tried to talk to the jurors. “None of the black jurors would talk to me and then the only white woman stopped for a moment. I said, ‘What happened?’ She said, ‘We all knew he was guilty but he’s so young.’”

Even if the jurors thought the boy was too young, the law was still the law. Butler asked the more experienced prosecutors what was going on. It turned out it has a name: jury nullification.

When a jury nullifies, it finds a defendant not guilty, although the jurors may actually believe he is guilty. And because it’s illegal to retry someone, the person goes free. Jury nullification happens when jurors don’t agree with a law, or think there should be an exception.

For example, if someone assists a terminally ill spouse in pain with a suicide, it’s a murder according to the law. But often, juries will find these people innocent. And increasingly, juries are finding people with minor drug offenses innocent, despite overwhelming evidence to the contrary.

The senior prosecutors Butler talked to hated jury nullification. They thought it weakened the legal system. But Butler couldn’t shake the feeling that these older black jurors were up to something important. He left the prosecutors office and when into academia. The first thing he wanted to study was jury nullification.

The History of Jury Nullification

Jury nullification dates all the way back to English common law. It was designed as a check and balance on the government’s power, and it has played a big role in American history. During the revolutionary war it was illegal to speak out against the British. But juries would just find the defendants innocent. And during prohibition, juries nullified to keep bootleggers out of jail.

But the history that really made Butler start considering the power of nullification was how it was used during slavery. In 1850 it was illegal to help a slave escape. But juries often refused to convict the defendants. According to Butler those nullifying jurors helped set up the conditions to abolish slavery. “What would you do?” asks Butler.

For Butler, it was an easy answer. Slavery’s wrong.

But jury nullification has a dark history too. Jeff Cramer is the managing director of Kroll Investigations and has tried at least 100 jury trials. “I don’t think anyone could really advocate for a system where the juries can really do anything they want to do,” he says.

Cramer says historically, juries have used nullification to do things we look back on as being right. But they’ve also used nullification to do things that we look back on as being really wrong.

The most infamous examples are from the civil rights movement. In August of 1955 two white men killed Emmett Till, a black 14 year-old who they said whistled at a white woman. The evidence was clear. Later, the two white defendants would even admit to the murder. But the all white jury found the white defendants innocent. That was nullification, too.

“The risk is people get away with murder,” says Crammer. “And they get away with murder because the juries in those cases regarded the defendants as more valuable than the victims. So if we allow jury nullification, it doesn’t work, system’s over. It’s broken.”

Contemporary Jurors

Shari Diamond is a professor Northwestern Law school. Jury deliberation is usually very private, but Diamond got an unusual level of access to study them in action. She’s observed hours and hours of juries deliberating. Her conclusion? Nullification doesn’t happen very much.

“No one disputes that juries take their work very seriously,” says Diamond. “The jurors will say I sure don’t agree with that law, but we don’t have a choice.”

Of course juries are a cross section of society, so they tend to have the same prejudices and sensitivities of a general population. But Diamond says you have to remember that in order to be on jury, you have to first get through a selection process. That weeds out people with biases, people who might nullify.

According to Diamond, “The jury is us, but perhaps a better us.” That better us nullifies only in rare circumstances, usually when our accepted morals don’t match up with the letter of the law. “One way of saying it is this a sort of safety valve,” says Diamond. “We tolerate it, officially it’s not the law, and there are in fact court opinions that say they have no right to do it. But of course, we build a system where the jury has the power to do it.”

Paul Butler, the prosecutor who was having trouble getting guilty verdicts, thinks it may be the most direct form of democracy we have. Twelve people, in a room, charged with coming to a single conclusion. And like any piece of democracy, like voting, people will sometimes make bad decisions.

He left the prosecutors office and became a professor at George Washington University [note: Butler is now a professor at Georgetown University Law Center]. Butler now believes those jurors who nullified in all those drug cases were on to something. “There are more blacks under criminal supervision now, than there were slaves in 1850,” says Butler.

Butler thinks drug laws are to blame for those high incarceration numbers. Statistically, there are fewer black drug users, but more blacks in prison for drugs.

So just like the jurors nullified the fugitive slave laws, Butler thinks modern jurors should nullify drug laws. “Sometimes the law really is unfair and sometimes jurors really should say people are not guilty, even if they committed the crime, especially if it’s a drug case, because the drug laws are selectively enforced and I don’t think it’s fair. So if a citizen has a power then she should use it.”

Keeping The Secret

Now despite the role nullification plays in our justice system, chances are you haven’t heard of it. And there’s a reason for that.

Most people in the legal system think juries shouldn’t nullify. It’s too dangerous to put so much power in the hands of just twelve people. Still they can’t take away jurors ability to nullify without taking away other basic rights enshrined in the Constitution.

But there are three ways the legal system tries to discourage nullification.

First, as a juror, you take an oath that says you will uphold the law. Second, defense lawyers aren’t allowed to tell a jury to nullify. Third, most judges give instructions to a jury that basically tell them that they must find a defendant guilty if they broke the law. So juries may be able to nullify, but the system is set up to hide that.

But some activists are working to spread the word about nullification.

Julian Heicklin describes himself as, “the biggest pain in the ass in the world.” He’s a small, older man with a lot of big opinions. Heicklin is a member of the Fully Informed Jury association, a mostly libertarian group. Their goal is to make sure jurors know that they can nullify.

Heicklin stands outside courtrooms handing out literature and talking to people. Heicklin thinks nullification is a good strategy for all kinds of laws he sees as unfair, including gun laws.

In August of 2011 the US government charged Heicklin with jury tampering– a serious offense. The case got a lot of attention. Especially when the judge denied Heicklin a jury trial, because, after all, it would be another opportunity for him to tell jurors how to nullify.

But if courts want to keep this jury nullification thing on the down low, then Heicklin says, the joke has been on them, “They made a national issue of this, they did something I could have never done by myself.” Heicklin says he is just a shabby old man with a few pamphlets, but by prosecuting him, the courts handed out “the biggest pamphlet ever.”

Since I spoke with Heicklin, the case against him has been dropped. But he plans to be outside those courtrooms again soon, for better, or worse, making sure the secret power of nullification is a little less secret.

Inquiring Minds asks people to choose a book, article, film, radio story, or other media piece that changed the way they think about law and how it works in society. TLOTL

by Emily Bazelon

We took our project’s name from this very famous quote by one of the giants of American law.  Oliver Wendell Holmes, Jr. (his father, OWH, Sr. was famous in his own right) was a Justice on the Supreme Judicial Court of Massachusetts (that state’s highest court) and on the United States Supreme Court from 1902 to 1932. He also had a great mustache.

But what does the quote mean?  We talked to legal historian William LaPiana, a professor at New York Law School to help us explain.  His book, Logic & Experience, examined the legal thought of Holmes and his peers in the years around 1900.

“Society creates law and law has to respond to society. Not slavishly and it can always guide society and you have to make choices and in the end someone’s going to decide in our society, we hope in some sort of democratic, small “d” manner what’s good. But you have to choose. You have to choose and of course the most horrible, difficult thing is to take responsibility and choose. And that’s what law is all about.”

La Piana on Oliver Wendell Holmes (click for audio)

Arguing in favor of the images, the government cited the findings of David Hammond, a psychology professor at the University of Waterloo who has researched the effects of warning labels on cigarette smoking. According to Hammond, there is widespread public support for the measure, and not just among those who don’t carry a light.

“There are many studies showing that smokers support these things,” Hammond told me. In some, he said, the vast majority of them—eighty to ninety percent.

There is something strikingly bizarre about a body of consumers demanding both a product and assistance curbing its use of it. What the customer wants, the customer gets—but what about when the customer wants to want the product less?

Addiction’s offspring are, of course, strange. In a single mind, conflicting desires compete for action—to quit, and not to quit. When it comes to such rival longings, consumers now face a trending market of tools to help with the pesky art of discipline. Afraid you’re going to send a drunken email? Set up Google’s Mail Goggles to test your sobriety level with math problems. Or put your money where your mouth is on StickK by staking actual dollars (or something else concrete) on your goal, whether it’s to quit smoking, lose weight, or repay your debt.

Smokers favoring graphic images, in a sense, can be seen as part of this trend. Yes, help! I’m glad to outsource my discipline.

The court, however, was highly dubious that the warnings would even work, writing that the FDA had “not produced a shred of evidence” that they would reduce the number of Americans who smoke. Hammond takes issue with the court’s claim (he says there is plenty of evidence), though went on to note that there’s no “magic bullet” and that the power of the campaign is prevention.

“Is it going to make someone quit who’s been smoking for forty years?” he asked without answering (translation: not just no, but obviously no). “But ninety percent of youth in Canada say these have discouraged them from starting smoking.” That’s something, but it’s also something different. Is there any way to help the person who’s been smoking for forty years quit?

Perhaps there’s an untapped market here, an opportunity for some creative entrepreneurship, whether it’s public or private.

A running ticker on StickK—“who’s stickKing”—lists the profiles of current users. A few moments clicking around left me with the impression that many users’ goals are so vague, it’s difficult to imagine how they would define success (“rational thinking,” “stop smoking weed but only on special occasions”). And according to their profiles, a number of people “stickKing” seem to be “skipping” the stakes part.

Nonetheless, StickK reports “2,502,250 cigarettes not smoked,” which, since it’s referencing users of the site, means 2,502,250 cigarettes not smoked by people who were smokers. This isn’t a number derived from prevention.

If that’s true, there may be something to build on to help the most dedicated smokers finally kick the habit. An app that logs dollars spent and potential life lost… then posts it on your Facebook Wall? A credit card that declines cigarette purchases?

Whatever the tool, it’s got to echo David’s slingshot—powerful enough to defeat a foe many see as unconquerable. “I started at seventeen and have tried to quit more times than I can count,” a 30-year-old friend wrote me in an email. “It’s been a thirteen year bondage.”

When I asked her if she had any ideas of what might work, she wrote back only one: “Send me to island that has no cigarettes.”

Inquiring Minds asks people to choose a book, article, film, radio story, or other media piece that changed the way they think about law and how it works in society. TLOTL

Placing Law in Global Conversation
by Mark Weiner

My choice may be a bit out of the ordinary, because the book that most deeply shaped how I think about law was published 135 years ago, in 1877. It’s also not exclusively or even explicitly about law. The book is Lewis Henry Morgan’s Ancient Society.

Born in 1818 in upstate New York, Morgan practiced corporate law for more than twenty years before turning his attention to scholarship. A founding father of American anthropology, he had a special interest in Native American culture (and the political needs of Native American communities), especially that of the Iroquois. In recognition of his work on their behalf, the Seneca adopted him into the tribe in 1846, bestowing him the name of Da-ya-da-o-wo-ko, or bridging-the-gap. Backed by the Smithsonian Institution, in 1859 Morgan began an multi-year research trip to study native peoples in the west. The trip would lead him to write one of the most important scholarly works of the era.

Ancient Society is a study of how human communities pass through seven developmental stages as they evolve from “savagery” to “civilization.” Morgan argues that each evolutionary stage is characterized by a distinctive type of family structure, body of property rules (including rules of inheritance), and government organization. To make his argument, Morgan refers to a dizzying range of peoples and how their communities are ordered, from the Iroquois Confederacy to ancient Rome, enabling him to draw extraordinary connections between societies around the world. Here is one typical passage about ancient government I’ve always found especially arresting:

“The Irish sept, the Scottish clan, the phrara of the Albanians, and the Sanskrit ganas, without extending the comparison further, are the same as the American Indian gens, which has usually been called a clan. As far as our knowledge extends, this organization runs through the entire ancient world upon all the continents, and it was brought down to the historical period by such tribes as attained to civilization. Nor is this all. [Clan] society wherever found is the same in structural organization and in principles of action; but changing from lower to higher forms with the progressive advancement of the people.”

Morgan shaped how I think about law not so much in its technical particulars. The truth be told, I couldn’t tell you much offhand about the specific differences between what Morgan described as the “middle period of savagery” and the “later period of barbarism,” or his views about the divergence between ancient Hawaiian and Greek marriage rules.

What I remember instead is the way he put social and legal systems into conversation with each other. He showed me how important it is to think about a legal system within its more general cultural and historical context and to understand it within a global framework. Morgan’s book encouraged me to think about law culturally, historically, and comparatively.

A professor of law at Rutgers-Newark School of Law, Mark S. Weiner blogs as worldsoflaw.com. His most recent book, The Rule of the Clan: What an Ancient Form of Social Organization Reveals about the Future of Individual Freedom, is in press with
Farrar, Straus and Giroux.

By Cass Sunstein

When I started at the University of Chicago Law School in 1981, rational choice theory was the coin of the realm. The most impressive local economists (some of them Nobel Prize winners) insisted that human beings were rational actors (with the clear implication that anyone who disagreed was, well, irrational). The most impressive local law professors followed their lead. Law and economics had emerged as the most influential development in law schools in many decades. I was skeptical of the rational actor model, but my skepticism was uneducated and clueless; I lacked a disciplined framework, or any framework at all, by which to challenge the prevailing orthodoxy at Chicago.

In the middle 1980s, I encountered the emerging work of a young economist named Richard Thaler, starting with a funny, brilliant, eye-popping paper called Toward A Positive Theory of Consumer Choice. That paper, and a number of others, were eventually published in Thaler’s 1994 book, Quasi-Rational Economics, and so that book is my choice here.

Among other things, Thaler’s work showed that people care about fairness and are willing to sacrifice money to be fair (and to punish unfairness); that people are both careful planners and impulsive doers, and that the doers may need some help from the planners; that people hate losses from the status quo, and indeed dislike losses more than they like corresponding gains; that people separate money into different “mental accounts” (e.g., spending money, college education money, retirement money, vacation money); that people often neglect opportunity costs; and that people value goods that they already have a lot more than they value the same goods in the hands of others. These claims have turned out to have significant implications for law, including damage awards, valuation of environmental goods, and settlement negotiations.

Thaler is of course a seminal figure, and probably the key figure, behind the field of behavioral economics, which ranks among the most important developments in social science in the last half-century.  Educated and inspired by his papers, I was able to think a lot differently, and much better, about the limits of rational actor models.