Quotulatiousness

July 1, 2015

The awe and majesty of the Grand Jury

Filed under: Law,Liberty,Politics,USA — Tags: , , — Nicholas @ 03:00

I was not aware that the title “Grand Jury” doesn’t necessarily mean that there’s a jury empanelled to decide “grand” issues of law under US practice:

Over at the Daily Beast, Nick Gillespie attempts to bring religiosity to the fuzzy-wuzzies by describing what it was like to be hit with a ridiculous grand jury subpoena and unprincipled gag order. In response, several Daily Beast commenters trot out an argument I see now and then: “well, citizens on the grand jury thought that there were grounds to issue a subpoena.”

No.

In fact, hell no, or if you prefer, bless your heart, no.

Let’s talk about how federal grand jury subpoenas actually work. These days the U.S. Attorney’s Office prints them from fillable pdfs. Given that we were still typing them when I left the USAO in 2000, they probably achieved this technical benchmark in 2012 or so. Assistant United States Attorneys — that is, snot-nosed punks like I was at twenty-six — issue a grand jury subpoena by filling it out, or more likely, asking their secretary to fill it out. Nominally, the subpoena is issued on behalf of the grand jury. But it is not by any stretch of the imagination, issued by the grand jury. The AUSA need not — and never does, in my experience — ask the grand jury for permission. When the target of the subpoena produces documents, most often the Assistant U.S. Attorney lets the case agent — some Special Agent of the FBI or DEA or whatever — hold on to them.

So is the grand jury involved at all? Well, sort of. If and when the federal prosecutor seeks an indictment relying in part on documents produced in response to a grand jury subpoena, they’ll summarize the results of the subpoena to the grand jury. But that could be years after the fact. Prior to that, the acknowledged “best practice” is for the AUSA to appear before the grand jury, tell the grand jurors that a subpoena has been issued on their behalf, briefly outline the nature of the investigation, and ask their consent for the case agent to maintain custody of the documents produced — which, because they have been produced “to the grand jury,” are governed by secrecy requirements.

Does that always happen? No. Even when it does happen, it’s rarely a significant check on the use or abuse of grand jury subpoenas. First, when I was an AUSA, I never once had a grand juror ask about why I was issuing such a subpoena or exactly what I got back. I don’t know that any of them ever looked up from their newspapers. The common practice is to make a report so perfunctory that the grand jurors have no context from which to determine whether a subpoena is appropriate — and you’d only be reporting the subpoena after the fact. Second, there’s often no continuity of grand jurors. In a small district you might have only one grand jury that meets once a week, and those grand jurors could, in theory, write things down in their notebooks and keep track of them over time. But in many districts there are many federal grand juries. In Los Angeles, for instance, there was a different one meeting every day of the week. AUSAs don’t necessarily report subpoenas from the same investigation to the same grand jury over time. And federal grand juries turn over after a year and a half (unless extended), which means that the grand jurors hearing you report a subpoena this year won’t necessarily be the same ones hearing you report the next subpoena in the investigation next year.

June 30, 2015

The Supreme Court and the rule of law

Filed under: Law,Liberty,Politics,USA — Tags: , , , — Nicholas @ 04:00

At Ace of Spades H.Q., Weirddave explains why — even if you are in favour of Obamacare continuing in its current form — you should be worried that the United States Supreme Court made a huge mistake with the ruling that kept Obamacare alive:

… If it had gone the other way, God knows Congress would have fallen all over itself to to reinstate the subsidy. No, what was so gobsmackingly amazing about the decision was that it was justified on the basis of “intent”. 6 out of 9 justices ignored the black letter written word of law in favor of “intent”

So why is this important? Well, let’s start by asking a simple question: Why has the USA been so prosperous? Expand the scope of the question: Historically, why has the Anglosphere been so successful? If one views all of the countries in the Anglosphere as branches growing off of a British trunk, underneath all of them, providing sustenance and support is one common root:

Rule of Law

Rule of Law is a concept that goes back to Greco-Roman times and earlier. The Bible introduces some Deuteronomic provisions to constrain the king that are perhaps the earliest iterations of the concept. Plato advocated a benevolent monarchy, placing his hopes on the willingness of the king to obey the law, Aristotle firmly rebuked him for such a Utopian concept. Things really got rolling in 1215 with the Magna Carta which limited the power of King John to act unilaterally. Samuel Rutherford turned traditional wisdom on its head with Lex, Rex (“The law is king” as opposed to the traditional Rex, Lex, “The king is law”) Locke discussed the concept in great detail, and the Founding Fathers of the US kept the concept as their guiding star as they wrote the Constitution. In every case, as the concept evolved, society became more prosperous, more just and more stable.

And then along came John Roberts.

So what is Rule of Law? Simply put, Rule of Law means that the laws apply to everyone equally. A law is written. It says what it says, and everyone must obey it. No exceptions. The law applies to everyone, regardless of social status, political position, wealth, situation. The law says that one may not drive drunk. If someone is pulled over and they blow 1.5, it doesn’t matter if they were really sad because their grandfather just died, or if their mother ruled Bartertown. They broke the law, they are arrested and tried. (I do realize that real life isn’t quite as straightforward and often times position, power or wealth DO determine how laws are applied in individual cases, but we’re talking theory here). Rule of Law creates a level playing field for everyone.

Real life example: You want to set up a toilet paper factory. You can set it up in America, where a codified set of laws protects your property rights and sets legal limits on what the government can do to you, or you can set up shop in Venezuela where what you build belongs to a corrupt government and can be taken from you at anytime. Where do you build your factory?

Exactly, and that’s why Wal-Mart carries dozens of different types of toilet paper and they are wiping their asses with pine cones in Caracas.

Extending the ADA to the web

Filed under: Law,Liberty,Politics,Technology,USA — Tags: , — Nicholas @ 02:00

Amy Alkon discusses why the notion of expanding the Americans with Disabilities Act to cover the internet would be a terrible idea:

So few people understand how laws passed can be used — and easily misused. Stretched into something they were never supposed to be (or not what they were said to be about, anyway).

For example, Title IX was supposed to be about allowing girls equal participation in school sports. The Obama admin has turned it into a system of campus kangaroos courts removing due process from men accused of sexual assault.

Next in line for strrretching is the Americans with Disabilities Act.

[…]

Bader gives some examples from Walter Olson, from his testimony to Congress, of awful changes that would ensue, like that amateur publishing would become “more of a legal hazard.” They’d go after websites like mine, that make a few shekels from Amazon links and a few more from Google ads. I need this money to supplement the money that’s fallen out of newspaper writing; also, I love the people who comment here and the discussion that goes on. It’s what keeps my eyes pried open at 11 p.m. when I need to post a blog item half an hour after I should have gone to bed for my 5 a.m. book- and column-writing wakeup time.

Also, added in the morning, after waking up worrying about this all night — making something “accessible” for a tiny minority could ruin it for everyone.

And what sort of understanding do we really owe people? I don’t do well with complex physics and I have limited attention for things I don’t understand that don’t grab my interest enough to figure them out. Should physics websites dumb themselves down for Amy Alkon’s brain? How many scientific websites will be brought down by disabled people going around to them like the quadriplegic lawyer in the wheelchair filing profit-making suits and closing classic hamburger stands and other businesses in California over ADA claims?

June 29, 2015

Europe institutionalizes the “memory hole”

Filed under: Europe,Law,Liberty,Technology — Tags: , , — Nicholas @ 04:00

Brendan O’Neill on the European “right to be forgotten”:

“He stepped across the room. There was a memory hole in the opposite wall. O’Brien lifted the grating. Unseen, the frail slip of paper was whirling away on the current of warm air; it was vanishing in a flash of flame. O’Brien turned away from the wall. ‘Ashes,’ he said. ‘Not even identifiable ashes. Dust. It does not exist. It never existed.'”

This is the moment in Nineteen Eighty-Four when O’Brien, an agent of the Thought Police who tortures Winston Smith in Room 101, dumps into a memory hole an inconvenient news story. It’s an 11-year-old newspaper cutting which confirms that three Party members who were executed for treason could not have been guilty. “It does exist!” wails Winston. “It exists in memory. I remember it. You remember it.” O’Brien, mere seconds after plunging the item into the memory hole, replies: “I do not remember it.”

Of all the horrible things in Nineteen Eighty-Four that have come true in recent years — from rampant thought-policing to the spread of CCTV cameras — surely the memory hole, the institutionalisation of forgetting, will never make an appearance in our supposedly open, transparent young century? After all, ours is a “knowledge society,” where info is power and Googling is on pretty much every human’s list of favourite pastimes.

Think again. The memory hole is already here. In Europe, anyway. We might not have actual holes into which pesky facts are dropped so that they can be burnt in “enormous furnaces.” But the EU-enforced “right to be forgotten” does empower individual citizens in Europe, with the connivance of Google, to behave like little O’Briens, wiping from internet search engines any fact they would rather no longer existed.

June 28, 2015

QotD: Getting into trouble in Imperial Germany (2)

Filed under: Europe,Humour,Law,Quotations — Tags: , , — Nicholas @ 01:00

Now, in Germany […] trouble is to be had for the asking. There are many things in Germany that you must not do that are quite easy to do. To any young Englishman yearning to get himself into a scrape, and finding himself hampered in his own country, I would advise a single ticket to Germany; a return, lasting as it does only a month, might prove a waste.

In the Police Guide of the Fatherland he will find set forth a list of the things the doing of which will bring to him interest and excitement. In Germany you must not hang your bed out of window. He might begin with that. By waving his bed out of window he could get into trouble before he had his breakfast. At home he might hang himself out of window, and nobody would mind much, provided he did not obstruct anybody’s ancient lights or break away and injure any passer underneath.

In Germany you must not wear fancy dress in the streets. A Highlander of my acquaintance who came to pass the winter in Dresden spent the first few days of his residence there in arguing this question with the Saxon Government. They asked him what he was doing in those clothes. He was not an amiable man. He answered, he was wearing them. They asked him why he was wearing them. He replied, to keep himself warm. They told him frankly that they did not believe him, and sent him back to his lodgings in a closed landau. The personal testimony of the English Minister was necessary to assure the authorities that the Highland garb was the customary dress of many respectable, law-abiding British subjects. They accepted the statement, as diplomatically bound, but retain their private opinion to this day. The English tourist they have grown accustomed to; but a Leicestershire gentleman, invited to hunt with some German officers, on appearing outside his hotel, was promptly marched off, horse and all, to explain his frivolity at the police court.

Another thing you must not do in the streets of German towns is to feed horses, mules, or donkeys, whether your own or those belonging to other people. If a passion seizes you to feed somebody else’s horse, you must make an appointment with the animal, and the meal must take place in some properly authorised place. You must not break glass or china in the street, nor, in fact, in any public resort whatever; and if you do, you must pick up all the pieces. What you are to do with the pieces when you have gathered them together I cannot say. The only thing I know for certain is that you are not permitted to throw them anywhere, to leave them anywhere, or apparently to part with them in any way whatever. Presumably, you are expected to carry them about with you until you die, and then be buried with them; or, maybe, you are allowed to swallow them.

In German streets you must not shoot with a crossbow. The German law-maker does not content himself with the misdeeds of the average man — the crime one feels one wants to do, but must not: he worries himself imagining all the things a wandering maniac might do. In Germany there is no law against a man standing on his head in the middle of the road; the idea has not occurred to them. One of these days a German statesman, visiting a circus and seeing acrobats, will reflect upon this omission. Then he will straightway set to work and frame a clause forbidding people from standing on their heads in the middle of the road, and fixing a fine. This is the charm of German law: misdemeanour in Germany has its fixed price. You are not kept awake all night, as in England, wondering whether you will get off with a caution, be fined forty shillings, or, catching the magistrate in an unhappy moment for yourself, get seven days. You know exactly what your fun is going to cost you. You can spread out your money on the table, open your Police Guide, and plan out your holiday to a fifty pfennig piece. For a really cheap evening, I would recommend walking on the wrong side of the pavement after being cautioned not to do so. I calculate that by choosing your district and keeping to the quiet side streets you could walk for a whole evening on the wrong side of the pavement at a cost of little over three marks.

In German towns you must not ramble about after dark “in droves.” I am not quite sure how many constitute a “drove,” and no official to whom I have spoken on this subject has felt himself competent to fix the exact number. I once put it to a German friend who was starting for the theatre with his wife, his mother-in-law, five children of his own, his sister and her fiancé, and two nieces, if he did not think he was running a risk under this by-law. He did not take my suggestion as a joke. He cast an eye over the group.

“Oh, I don’t think so,” he said; “you see, we are all one family.”

“The paragraph says nothing about its being a family drove or not,” I replied; “it simply says ‘drove.’ I do not mean it in any uncomplimentary sense, but, speaking etymologically, I am inclined personally to regard your collection as a ‘drove.’ Whether the police will take the same view or not remains to be seen. I am merely warning you.”

My friend himself was inclined to pooh-pooh my fears; but his wife thinking it better not to run any risk of having the party broken up by the police at the very beginning of the evening, they divided, arranging to come together again in the theatre lobby.

Jerome K. Jerome, Three Men on the Bummel, 1914.

June 27, 2015

QotD: The corporate tax game

Filed under: Bureaucracy,Business,Law,Quotations,USA — Tags: , , , , — Nicholas @ 01:00

You can think of corporate taxation as a sort of long chess match: The government makes a move. Corporations move in response — sometimes literally, to another country where the tax burden is less onerous. This upsets the government greatly, and the Barack Obama administration in particular. Treasury Secretary Jack Lew has written a letter to Congress, urging it to make it stop by passing rules that make it harder to execute these “inversions.”

I’ve got a better idea: What if we made our tax system so attractive to corporations that they would have no interest in moving themselves abroad?

The problem with this extended chess game is that every move is very costly. First, it adds to the complexity of the tax code. With every new rule — no matter how earnestly said rule attempts to close a “loophole” — it becomes harder to know whether you are in compliance with the law. This is true on both sides; corporate tax law has now passed well beyond the point where it is possible for a single expert to be familiar with its ins and outs. This makes it harder to plan business expansions, harder to forecast government revenue, and it requires both sides to hire more experts in order to determine whether corporations are compliant. It also means more lawsuits, and longer ones, as both sides wrangle over how this morass of laws should be applied to real-world situations.

You can think of it this way: Every new law has possible intersections with every other tax law in existence. As the number of laws grows, the number of possible intersections grows even faster. And each of those intersections represents both a possible way to avoid taxes and a potential for unintended consequences that inadvertently outlaw something Congress never intended to touch. This growing complexity makes it more and more difficult for either companies or lawmakers to forecast the ultimate effects of new tax laws.

Megan McArdle, “We Don’t Need a Corporate Income Tax”, Bloomberg View, 2014-07-16.

June 23, 2015

“Being skunked” takes on a new meaning

Filed under: Law,Politics,Technology,USA — Tags: , , , — Nicholas @ 02:00

At Defence One, Patrick Tucker looks at an “improved” stink bomb now available to American police departments:

As protestors and police officers clash on the streets of Baltimore and other divided cities, some police departments are stockpiling a highly controversial weapon to control civil unrest.

It’s called Skunk, a type of “malodorant,” or in plainer language, a foul-smelling liquid. Technically nontoxic but incredibly disgusting, it has been described as a cross between “dead animal and human excrement.” Untreated, the smell lingers for weeks.

The Israeli Defense Forces developed Skunk in 2008 as a crowd-control weapon for use against Palestinians. Now Mistral, a company out of Bethesda, Md., says they are providing it to police departments in the United States.

Skunk is composed of a combination of baking soda and amino acids, Mistral general manager Stephen Rust said at the National Defense Industrial Association’s Armament Systems Forum on April 20. “You can drink it, but you wouldn’t want to,” said Rust, a retired U.S. Army project manager.

The Israelis first used it in 2008 to disperse Palestinians protesting in the West Bank. A BBC video shows its first use in action, sprayed by a hose, a system that has come to be known as the “crap cannon.”

June 22, 2015

Breaking – it’s a nation-wide crime wave (when you cherry-pick your data)

Filed under: Law,USA — Tags: , , — Nicholas @ 04:00

Daniel Bier looks at how Wall Street Journal contributor Heather Mac Donald concocted her data to prove that there’s a rising tide of crime across the United States:

Heather Mac Donald is back in the Wall Street Journal to defend her thesis that there is a huge national crime wave and that protesters and police reformers are to blame.

In her original piece, Mac Donald cherry picked whatever cities and whatever categories of crime showed an increase so far this year, stacked up all the statistics that supported her idea, ignored all the ones that didn’t, and concluded we are suffering a “nationwide crime wave.”

Of course, you could do this kind of thing any year to claim that crime is rising. But it isn’t.

The fifteen largest cities have seen a 2% net decrease in murder so far this year. Eight saw a rise in murder rates, and seven saw an even larger decline.

Guess which cities Mac Donald mentioned and which she did not.

This is how you play tennis without the net. Or lines.

And in her recent post, buried seven paragraphs in, comes this admission: “It is true that violent crime has not skyrocketed in every American city — but my article didn’t say it had.”

But neither did her article acknowledge that murder in big cities was falling overall — in fact, it didn’t acknowledge that murder or violent crime was declining anywhere. Apparently, in her view, it is acceptable to present a distorted view of the data as long as it isn’t an outright lie.

Are software APIs covered by copyright?

Filed under: Business,Law,Technology — Tags: , , — Nicholas @ 03:00

At Techdirt, Mike Masnick looks at a recent Supreme Court case that asks that very question:

The Obama administration made a really dangerous and ignorant argument to the Supreme Court yesterday, which could have an insanely damaging impact on innovation — and it appears to be because Solicitor General Donald Verrilli (yes, the MPAA’s old top lawyer) is absolutely clueless about some rather basic concepts concerning programming. That the government would file such an ignorant brief with the Supreme Court is profoundly embarrassing. It makes such basic technological and legal errors that it may be the epitome of government malfeasance in a legal issue.

We’ve written a few times about the important copyright question at the heart of the Oracle v. Google case (which started as a side show to the rest of the case): are software APIs covered by copyright. What’s kind of amazing is that the way you think about this issue seems to turn on a simple question: do you actually understand how programming and software work or not? If you don’t understand, then you think it’s obvious that APIs are covered by copyright. If you do understand, you recognize that APIs are more or less a recipe — instructions on how to connect — and thus you recognize how incredibly stupid it would be to claim that’s covered by copyright. Just as stupid as claiming that the layout of a program’s pulldown menus can be covered by copyright.

The judge in the district court, William Alsup, actually learned to code Java to help him better understand the issues. And then wrote such a detailed ruling on the issue that it seemed obvious that he was writing it for the judges who’d be handling the appeal, rather than for the parties in the case.

An insurance scam that targets the most vulnerable

Filed under: Bureaucracy,Law,USA — Tags: , , , — Nicholas @ 02:00

At The Intercept, Juan Thompson talks about a burgeoning insurance scam that not only rips off the victims for their insurance premiums but then makes it worse through police action:

Martin was taken in by a widening scam in which crooks, posing as auto insurance agents, prey on working people struggling to find affordable policies. Under the scam, the perpetrator offers auto insurance for a low price — low because the scammer, posing as a broker, will buy an authentic policy using fraudulent means of payment, keeping the policy just long enough to collect a proof of insurance card.

The racket is a growing problem in New York City and South Florida, according to an insurance industry group, but seems most prevalent in Michigan, where premiums are inflated by a state mandate that drivers purchase insurance plans that have unlimited lifetime medical benefits, among other features. Victims in Michigan are thrown even deeper into crisis when police, as is common there, accuse victims of being in on the scam and seize their vehicles and other assets under civil forfeiture laws.

The scam and seizures show how crooks and cops can end up working in concert to further imperil those already on the economic brink. Indeed, in this case, low-income residents are pinched at every turn. They start off with especially high insurance premiums, consumer advocates argue, because insurance companies sometimes charge people in low-income communities more for auto insurance in a practice some have labeled modern redlining.

Bogus agents exploit the need for cheaper policies by selling insurance that’s too good to be true, leaving victims financially exposed, for example, in the case of an accident. As if all that weren’t enough, the police then turn on the victims of the fraud, who are far easier to track down than the original perpetrators.

“You have a blend of crooked agents selling innocent, squeezed drivers bogus policies and insurance cards, and high insurance premiums,” said James Quiggle of the Coalition Against Insurance Fraud, a group that receives funding from insurance companies.

June 14, 2015

More on that Reason grand jury subpoena

Filed under: Law,Liberty,Media,USA — Tags: , , , , — Nicholas @ 04:00

At the Foundation for Economic Education, Ryan Radia discusses the free-speech-quashing subpoena issued by a federal prosecutor in New York state:

In late May, Judge Katherine Forrest, who sits on the US District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.

A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating.

One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “it’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper,” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”

Within hours, the office of Preet Bharara, the US Attorney for the Southern District of New York, sent Reason a subpoena for these commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.”

This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the US Attorney to decide when to issue a subpoena “on behalf” of a grand jury.

[…]

Even if this subpoena is valid under current law — more on that angle in a bit — the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities.

Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic — but nonetheless protected — political speech by anonymous Internet commenters.

QotD: The law-abiding Germans

Filed under: Europe,Humour,Law,Quotations — Tags: , , — Nicholas @ 01:00

Another excellent piece of material for obtaining excitement in Germany is the simple domestic perambulator. What you may do with a “kinder-wagen,” as it is called, and what you may not, covers pages of German law; after the reading of which, you conclude that the man who can push a perambulator through a German town without breaking the law was meant for a diplomatist. You must not loiter with a perambulator, and you must not go too fast. You must not get in anybody’s way with a perambulator, and if anybody gets in your way you must get out of their way. If you want to stop with a perambulator, you must go to a place specially appointed where perambulators may stop; and when you get there you must stop. You must not cross the road with a perambulator; if you and the baby happen to live on the other side, that is your fault. You must not leave your perambulator anywhere, and only in certain places can you take it with you. I should say that in Germany you could go out with a perambulator and get into enough trouble in half an hour to last you for a month. Any young Englishman anxious for a row with the police could not do better than come over to Germany and bring his perambulator with him.

In Germany you must not leave your front door unlocked after ten o’clock at night, and you must not play the piano in your own house after eleven. In England I have never felt I wanted to play the piano myself, or to hear anyone else play it, after eleven o’clock at night; but that is a very different thing to being told that you must not play it. Here, in Germany, I never feel that I really care for the piano until eleven o’clock, then I could sit and listen to the “Maiden’s Prayer,” or the Overture to “Zampa,” with pleasure. To the law-loving German, on the other hand, music after eleven o’clock at night ceases to be music; it becomes sin, and as such gives him no satisfaction.

The only individual throughout Germany who ever dreams of taking liberties with the law is the German student, and he only to a certain well-defined point. By custom, certain privileges are permitted to him, but even these are strictly limited and clearly understood. For instance, the German student may get drunk and fall asleep in the gutter with no other penalty than that of having the next morning to tip the policeman who has found him and brought him home. But for this purpose he must choose the gutters of side-streets. The German student, conscious of the rapid approach of oblivion, uses all his remaining energy to get round the corner, where he may collapse without anxiety. In certain districts he may ring bells. The rent of flats in these localities is lower than in other quarters of the town; while the difficulty is further met by each family preparing for itself a secret code of bell-ringing by means of which it is known whether the summons is genuine or not. When visiting such a household late at night it is well to be acquainted with this code, or you may, if persistent, get a bucket of water thrown over you.

Also the German student is allowed to put out lights at night, but there is a prejudice against his putting out too many. The larky German student generally keeps count, contenting himself with half a dozen lights per night. Likewise, he may shout and sing as he walks home, up till half-past two; and at certain restaurants it is permitted to him to put his arm round the Fraulein’s waist. To prevent any suggestion of unseemliness, the waitresses at restaurants frequented by students are always carefully selected from among a staid and elderly classy of women, by reason of which the German student can enjoy the delights of flirtation without fear and without reproach to anyone.

They are a law-abiding people, the Germans.

Jerome K. Jerome, Three Men on the Bummel, 1914.

June 9, 2015

QotD: Politics, as practiced in Europe

Filed under: Bureaucracy,Europe,Law,Quotations — Tags: , — Nicholas @ 01:00

It is at first denied that any radical new plan exists; it is then conceded that it exists but ministers swear blind that it is not even on the political agenda; it is then noted that it might well be on the agenda but is not a serious proposition; it is later conceded that it is a serious proposition but that it will never be implemented; after that it is acknowledged that it will be implemented but in such a diluted form that it will make no difference to the lives of ordinary people; at some point it is finally recognised that it has made such a difference, but it was always known that it would and voters were told so from the outset.

Brian Micklethwait explains the sourcing of this quote at Samizdata: The above paragraph, originally written to describe the onward march of the European Union, is quoted by Delingpole, in his book Watermelons (p. 45), to help him explain how AGW went from crankery to globally imposed policy. Delingpole found it in The Great Deception (p. 605) by Booker and North. They got it from a Times editorial, published on August 28, 2002.

May 29, 2015

The legacy of the great satanic sex abuse panic still resonates today

Filed under: Law,Media,USA — Tags: , , , — Nicholas @ 04:00

Radley Balko reports on the recent release of two former Austin, Texas daycare owners … who’ve been in prison since 1992 on the testimony of a toddler and “expert evidence” from a satanic ritual expert and how the moral panic of the day made it impossible for the courts to see how utterly unlikely the case actually was:

The panic actually began in the 1980s. It was instigated and perpetuated mostly by groups of fundamentalist Christians who saw Satan in every heavy metal album, “Smurfs” episode, and Dungeons & Dragons game, along with a quack cadre of psychotherapists who were convinced they could dig up buried memories through hypnosis. What they did instead was shed some light on just how potent the power of suggestion can be. Remarkably, children were convinced to testify about horrifying — and entirely fictional — violations perpetrated on them by care workers and, in some cases, by their own parents.

But it wasn’t just children. As the Kellers’ conviction shows, the panic was so overwhelming, it could convince trained medical professionals to see abuse where there was none. Some defendants were convicted of gruesome crimes such as the aforementioned dismembering of babies despite the fact that there were no corpses and no babies missing from the immediate area.

[…]

That the highest court in Texas still can’t bring itself to declare the couple innocent, in spite of all that we know now, shows just how difficult it can be to undo the damage caused by a moral panic and junk science in the courtroom.

[…]

Here’s an observation from the panic that I don’t think has been fully explored: These kids didn’t make up these stories. In this case and dozens of others, the kids were telling tales with details about geography, history and current events about which kids of their age couldn’t have known. That’s likely what made their stories seem somewhat credible. But the fact that it all was fictitious reveals a particularly unsettling truth: These sick, lurid, unimaginable abuses could only have been a product of the imaginations of the therapists, social workers, cops and/or prosecutors who interviewed the children. If the memories were implanted, those are the only people who could have implanted them. That means that the same people entrusted to protect these kids, and in whom these communities trusted to police the streets, prosecute crimes and administer therapy, were ultimately the ones capable of dreaming up detailed sexual fantasies that put children in bizarre rituals involving violence, animals, corpses and so on.

There’s a lot to be learned from these cases. For one, there are lessons about professional accountability: Not only were the vast majority of the prosecutors who put these innocent people in prison in these cases never sanctioned, but also most went on to great professional success, sometimes because of their role in these high-profile cases, and sometimes even after it was widely known that the people they prosecuted were innocent. There are other lessons here about how we screen “expert” witnesses, and how bad science gets into the courtroom. There are lessons about the power of suggestion that could be applied to eyewitness testimony and how we conduct police lineups.

But the drawing of lessons is something we typically do once a crisis is over. This one still isn’t. There are still people in prison awaiting exoneration in these cases.

May 28, 2015

The copyright fight over Sherlock Holmes … again

Filed under: Britain,Law,Media — Tags: , , — Nicholas @ 05:00

At Techdirt, Mike Masnick explains why the estate of Sir Arthur Conan Doyle is still trying to fight the public domain availability of anything Sherlock Holmes, even though they’ve lost at each stage of the legal proceedings:

And thus, Sherlock Holmes is considered to be mostly in the public domain. One might argue that a US federal court outside of the 7th Circuit might find otherwise, but it appears that the Estate has given up the fight and now will readily admit that the earlier works are in the public domain. That does not mean, however, that it is done suing. Not at all. The Estate has now sued over a book and movie that purport to tell the story of Holmes’ retirement. The author, Mitch Cullin, wrote the book A Slight Trick of the Mind about a decade ago, and that’s now been adapted into a film called Mr. Holmes, being released by Miramax.

First, the Conan Doyle Estate at least seems willing to admit that the earlier works are now fully in the public domain:

    The first fifty of Conan Doyle’s Sherlock Holmes short stories and novels are in the public domain. But the last ten of his original Sherlock Holmes stories, published between 1923 and 1927 (the Ten Stories), remain protected by copyright in the United States. These copyrighted ten stories develop the details of Holmes’s fictional retirement and change and develop the character of Holmes himself.

And that’s where the trouble comes in. The Conan Doyle Estate makes some reasonable claims that Cullin used a few details from the stories that are still under copyright in developing the ideas for his book and the subsequent movie (where he worked on the screenplay). As the complaint notes, the public domain works mention Sherlock Holmes’ retirement just twice, without that much detail. The works still under copyright delve into it much more. The complaint also notes some pretty clear similarities in certain scenes. For example, it points to this passage from the (still under copyright) Holmes story “Blanched Soldier”:

    It is my habit to sit with my back to the window and to place my visitors in the opposite chair, where the light falls full upon them. Mr. James M. Dodd seemed somewhat at a loss how to begin the interview. I did not attempt to help him, for his silence gave me more time for observation. I have found it wise to impress clients with a sense of power, and so I gave him some of my conclusions.

    “From South Africa, sir, I perceive.”

    “Yes, sir,” he answered, with some surprise.

And contrasts it with the following from Cullin’s work:

    As was my usual custom, I sat with my back to the window and invited my visitor into the opposite armchair, where — from his vantage point — I became obscured by the brightness of the outside light, and he — from mine — was illuminated with perfect clarity. Initially, Mr. Keller appeared uncomfortable in my presence, and he seemed at a loss for words. I made no effort to ease his discomfort, but used his awkward silence instead as an opportunity to observe him more closely. I believe that it is always to my advantage to give clients a sense of their own vulnerability, and so, having reached my conclusions regarding his visit, I was quick to instill such a feeling in him.

    “There is a great deal of concern, I see, about your wife.”

    “That is correct, sir,” he replied, visibly taken aback.

Certainly a similar setup, but is it infringing? That’s where things get pretty tricky, and why I still have trouble with the idea of using copyright to cover “a character.” After all, copyright is supposed to only protect the specific expression, rather than the idea. That’s why it’s never made sense to see courts accept the idea that someone writing a different story using the same characters should be seen as infringing. The courts here seem to handle different cases differently, allowing something like The Wind Done Gone (a retelling of Gone With The Wind from another character’s perspective) but not allowing Coming Through the Rye, an unauthorized sequel to Catcher in the Rye. For reasons that are not entirely clear, judges seemed to feel that The Wind Done Gone was more acceptable as a commentary on the original, rather than just a new work building off of the original.

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