- Caution: Warning label overload. Why wacky warnings matter. [Ted Frank @ Sphere]
- Further evidence of efficiency of product liability limits when federal safety regulation is already in place. [Philipson/Sun/Goldman NBER Working Paper No. 15603]
- Army seeks to court-martial soldier in Afghanistan for possessing “child pornography” when his mother sends him family photos that include a four-year-old in a swimsuit. [AP/WaPo via Riehl; WQAD]
- Burger King coffee is hot, too. [Virginian-Pilot]
- The “slush pile” disappears, in part because of fear of plagiarism litigation. [WSJ]
- Schwarzenegger faces fight on his proposed tort reforms. [Legal Newsline (I’m quoted)]
- I’m speaking at NYU Law January 21 at an American Constitution Society panel on class action issues. [NYU Law]
- Off topic, but I believe that this may be the first time I’ve been listed in the index of a book.
- On the medicalization of nearly everything: “Bitterness, Compulsive Shopping, and Internet Addiction” [Christopher Lane, Slate]
- Lawyer representing Sarah Palin to blogger: do you want to be served with our defamation suit at the kindergarten where you help out? [Alaska Report via Rachel Weiner, HuffPo]
- “The 7 Most Baffling Criminal Defenses (That Sort of Worked)” [Cracked via Popehat]
- Canada: crash victim gets C$2M, sues deceased lawyer for omitting a defendant who’d have chipped in another C$1.3 million [Calgary Sun]
- Privacy breach notifications mostly a costly waste of time but do keep lawyers busy [Lee Gomes, Forbes]
- “News Websites in Texas and Kentucky Invoke Shield Laws for Online Commenters” [Citizen Media Law]
- North Carolina suit against TVA “a sweet gig for the state’s attorneys” [Wood, Point of Law]
- Blawg Review #223 is at Scott Greenfield’s [Simple Justice] with another part hosted at the Blawg Review home site itself.
Perhaps best known for his involvement in the Bhopal chemical-leak, tobacco, and mayoral gun litigation, the Washington, D.C. plaintiff’s lawyer mostly gave to Democratic causes last year but has emerged as an adviser to the Alaska governor, whom he met through his wife, Greta Van Susteren of Fox News. American Lawyer has more.
High cost of the ethics wars? Today’s New York Times quotes Alaska’s lieutenant governor on the reasons for the governor’s surprise departure:
At the news conference, Ms. Palin cited numerous reasons for quitting, including more than $500,000 in legal fees that she and her husband, Todd, have incurred because of 15 ethics complaints filed against her during her two and a half years as governor. She said all of the complaints had been dismissed, but she still had to pay lawyers to defend her.
Further: WSJ Law Blog with letter from Palin lawyer Thomas Van Flein (outlining possible after-the-fact state indemnification of cost of officials’ legal counsel when complaints are found without merit).
[Note: see important update/P.S. at end].
As you may recall, I wrote a piece last week for City Journal taking issue with various calls around the liberal blogosphere for having the McCain-Palin campaign investigated or even prosecuted for supposed incitement to violence against its opponents (a charge for which credible evidence appears severely lacking in the first place). Along the way, I criticized a Concurring Opinions post by University of South Carolina associate professor Susan Kuo in which Kuo first endorsed the charge that the Republicans were engaged in “character assassination” and “peddling fear, hate, and outrage to an audience that appears highly susceptible to this message” and then helpfully laid out potential theories under which criminal liability might be assigned to inflammatory campaign speech of such a sort. I said I found it bizarre that Kuo entirely omitted mention of the First Amendment to the U.S. Constitution, and went on to cite a relatively recent (1982) case in which a unanimous Court had cited the First Amendment as protecting even fairly extreme language of incitement which was soon thereafter followed by actual violence. These circumstances, I concluded, virtually ensure that no American court would countenance a prosecution of McCain, Palin, or their campaign staffs for incitement on current evidence absent a rapid and spectacular change in Constitutional jurisprudence from its present stance.
Now Professor Kuo has responded in a new post at Concurring Opinions by calling me names. She writes that it was predictable that “the Thought Police” — she links that phrase to my piece — would quickly emerge to “chastise” her “for committing crimethink”.
Before turning to this amazing charge and unpacking its heavy freight of irony, let’s dispose briefly of a couple of Kuo’s incidental points. First, she claims I champion the idea that “the mere existence of the First Amendment invalidates the notion of criminal liability for political speech”. In fact, as even a hurried reading of my post should have revealed, I made just the opposite point: I noted that there are some circumstances (such as, but not necessarily limited to, intent to incite violence combined with co-ordination with those who commit the bad acts) where notwithstanding the Amendment political speech can cross a line into crime. I also noted that reasonable minds could differ about whether the Supreme Court drew the line on incitement in the right place in its 1982 case. In short, Kuo attributes to me an extreme position of her own invention.
Kuo also suggests that her post merely laid out a hypothetical (or “thought experiment”) about what the law might do as opposed to prescribing what it should do. I have no problem with hypotheticals and have been known to use them myself, recognizing that they can be (though I don’t think they were in this case) a bracingly non-normative device in which the actual prescriptive views of the narrator are irrelevant or impossible to discern. I simply think this hypothetical was rendered both bizarre and misleading by its omission of the First Amendment, by which the courts of this land have greatly curtailed the scope of criminal liability for incitement.
Now back to the question of who should get tagged with the dismissive Orwell-invoking cliche “Thought Police”. Let’s review the bidding. Sarah Palin and GOP surrogates stir up controversy by using blunt and divisive language to question Barack Obama’s judgment in the Bill Ayers matter. Voices around the liberal blogosphere then call for Palin & Co. to be criminally investigated and even prosecuted for riding this campaign issue too hard. Kuo, entering the debate, does not call these bloggers and Huffington Post writers “Thought Police” for suggesting that speech that offends them be subject to legal sanction, but instead conveys their views uncritically if not sympathetically. She then takes up her hypothetical of possible enforcement action against McPalin, outlining theories under which prosecutors might bring such charges and judges might agree to impose punishment, but does not label these hypothetical prosecutors or judges “Thought Police” for punishing the impassioned expression of political opinion. No, the only time the Thought Police make an entrance at all is after the fact, when someone presumes to criticize her. Only then does she detect, with fearful intake of breath, the sound of the hobnailed boots ascending the stairs. And it turns out to be that scary libertarian bogeyman, me!
I suppose I should take offense, but I haven’t managed to get past the comic aspect (& Ambrogi, Legal Blog Watch).
Important P.S.: I heard from Prof. Kuo herself this afternoon and we had a talk that was pleasant and in no way confrontational. She said her second post, to which this one responds, was dashed off in a spirit of light-hearted banter and that the last thing she meant was to call names or give insult. Obviously, it came across differently to me, and I reacted as one might to a seriously meant attack. As I noted, almost everyone who blogs has had the experience of writing something intended as funny that fails to register that way with part or all of the audience. And it’s probably also true that, as someone tender of my libertarian credentials, I’m especially apt to have my buttons pushed by any suggestion of being cast as Thought Police. Anyway, I’m glad to take Prof. Kuo at her word when she says she meant no offense, and I hope commenters at this site as well as Concurring Opinions will do the same (see also update post).
[Cross-posted from Point of Law]. I’ve got a new piece just up at City Journal in which I examine last week’s boomlet of interest around the liberal blogosphere in the notion that by riling up campaign crowds about Obama’s links to Bill Ayers, John McCain and (especially) Sarah Palin have engaged in “incitement to violence” of a “borderline criminal” nature that perhaps should even draw the attention of the Secret Service or FBI. (For examples of this boomlet, look among the several hundred occurrences of “Palin + incite” at Technorati between October 7 and 13; I also include a sampling as links in my piece). The article originated in a short post at Point of Law that City Journal asked me to expand into a longer treatment. I must say I find it fascinating that many bloggers, Huffington Post writers, etc. could so casually jettison the hard-won victories of free-speech liberalism, which fought long and hard against “incitement” theories by which criminal penalties might be applied to inflammatory speech. The idea of exposing your opponents to investigation or even arrest because you don’t approve of the contents of their speeches doesn’t seem like a particularly liberal one to me.
More: Stephen Bainbridge takes note.
- Both McC and Palin seem cold-blooded about firing people, might be seen as feature rather than bug [McLaughlin/Baseball Crank] #
- Legal obstacles to four day work week [Point of Law via @lilyhill] #
- Yep, that’s Joe: Biden said he’s “done more than any other senator combined” for trial lawyers [Point of Law] #
- Day of protest against software patents [OUT-LAW via @lawtweets] #
- Related? “EPO staff strike over patent quality” [OUT-LAW] #
- What a curious Nigerian scam email, do you think it could be genuine? [Cernovich] #
- Sarah Palin Baby Name Generator; mine is Pie Gallon Palin. #
- McCain assails SEC’s Cox, but Bainbridge is going with Cox; #
- Yes, racial profiling figures into use of peremptory challenges [Sommers, Psychology Today via Deliberations] #
- SEC’s net capital rule waivers to blame for credit blowup? [NYSun] #
- NY Observer’s Doonan cool to Palin eyeglass craze; #
- Business lobbies went along with expansion of ADA litigant categories [Point of Law] #
- @teafortillerman I think “trough gutted palin” is the best I’ve seen yet #
- Don’t blame Gramm-Leach-Bliley for housing bubble [MargRev] #
- Experimentally incorporating Twitter into Overlawyered; #
- @kevinokeefe I’m using Firefox and “follow” button on Twitter fails until I refresh. #
- PR firm retracts Tweet that sought to scare up class action plaintiffs [O’Keefe] #