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Archive for September, 2009

Blawg Review #230

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What difference does it make to the dead, the orphans and the homeless, whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty or democracy?
Mahatma Gandhi (1869 – 1948), “Non-Violence in Peace and War”
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INTRODUCTION
Between us, we’ve done eight Blawg Reviews individually, at Charon QC and Infamy or Praise ; for those keeping score at home, that amounts to 3.49% of the 239 editions published thus far. With this, our first joint Blawg Review, we boost our combined numbers to 3.91% overall. By early January, after we’ve each hosted again, we’ll command fully 4.49% of the Blawg Review archives.
At that point, we will leverage our position to rig the annual Blawg Review of the Year voting in Geeklawyer’s favor. This will, of course, cause the carnival of legal blogging to descend into utter chaos and we’ll be prepared to pick up its shattered remnants. We will then convert the site into a hardcore pornography destination supplemented with advertisements from legal marketing consultants. Let’s recap:
1. Host Blawg Review;
2. Manipulate existing institutions to create chaos;
3. Assume control of target;
4. Repurpose target’s resources;
5. Profit.
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Confused? If you swap “Host Blawg Review” for “Smuggle arms and funding to dissident factions”, you can better appreciate the brilliance of our plan; even if you can’t, the CIA and MI6 certainly can, as they’ve used variations of it for decades throughout the developing world. Subversive activity may not be the most glorious form of warfare, but it’s effective and, if nothing else, it tides one over until the next shooting war comes along, which it most certainly will.
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Officially of course, we’re against war, as it’s undeniably destructive to humans and their works. Peace is a much more palatable concept until one realizes that there are certain conditions which should not be allowed to continue in peace and certain people with whom one can not reason peacefully. At that point, humanity is characterized not by the avoidance of war but by a willingness to accept the burden of war and seek to resolve otherwise intractable situations as humanely as possible. War is certainly not the answer to every international problem, but there are some things that are worth fighting for. Who understands that better than soldiers and lawyers?
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Thus, while 21 September is officially the United Nations’ International Day of Peace , we’ll leave the encomia of peace to others and offer a brief but heartfelt appreciation of war here at Unsilent Partners. Notwithstanding, as this has been designated a day for international ceasefire, we promise not to shoot anyone until tomorrow morning.
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For those who are not familiar with the International Day of Peace, or “Peace One Day” as it’s sometimes known in Britain, the day was established by then-Secretary-General Kurt Waldheim in 1982. It’s unclear whether he intended to make his pronouncement on the first anniversary of Saddam Hussein’s invasion of Iran or whether that was mere coincidence, ironically underscoring the need for a day promoting peace. In all fairness though, every day is probably the anniversary of some warlike activity somewhere at some point; we’re just that sort of species. Perhaps that was Waldheim’s point. At any rate, as there were no violent protests against the International Day of Peace, the U.N. figured it was onto something and continued things each year since.
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The annual Day of Peace festivities begin with the ringing of the U.N.’s “Peace Bell”, on which is inscribed “long live absolute world peace”. Next, someone in the crowd points out that there’s never been “absolute world peace” even for a moment, whereupon someone else beats that person without mercy. In 2001, the Day was rededicated as a day of global ceasefire, thus ending two decades of Peace Days celebrated with barrages of gunfire. In 2007, on his first Day of Peace as Secretary-General, Ban Ki-Moon called for a cessation of hostilities for twenty-four hours and a minute of silence worldwide. Unfortunately, his message was incorrectly translated and member states instead engaged in twenty-four hours of hostilities about which they were silent for a minute. This year, the Million Acts of Peace site has been created to engage one million people to perform one peaceful act each. We’d appreciate it if a couple of the folks on that list would do an extra act apiece to offset this Blawg Review. Thanks, guys.
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Anyhow, our intent here is not merely to take the piss out of the United Nations but to point out that the better objective for humanity is not to maintain a peace in which injustice is prevalent but instead to accept that injustice should be remedied even where that remedy includes war. Many years ago, the novelist Robert Heinlein put it well in Starship Troopers : “Anyone who clings to the historically untrue–and thoroughly immoral–doctrine that ‘violence never solves anything’ I would advise to conjure up the ghosts of Napoleon Bonaparte and of the Duke of Wellington and let them debate it. The ghost of Hitler could referee, and the jury might well be the Dodo, the Great Auk, and the Passenger Pigeon. Violence, naked force, has settled more issues in history than has any other factor, and the contrary opinion is wishful thinking at its worst. Breeds that forget this basic truth have always paid for it with their lives and freedoms.”
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Some might suggest that celebrating war on a day of peace is absurdly cynical. Consider a couple of things, however: Even if you include all forms of organized armed violence such as state-sponsored genocide, war is far less deadly now than at any point in human history ). Whether you subscribe to the theory that war is inherently a part of human nature or the belief that it is a response to economic scarcity and cultural strife, recent statistics are striking. According to the Stockholm International Peace Research Institute, in 2008, just 25,600 combatants died in conflicts. Was Iraq the most deadly war last year or was it Afghanistan? Show of hands? Turns out, the correct answer is “neither”. More combatants died in Sri Lanka than in either place. As John Horgan, Director of  the Center for Science Writings at the Stevens Institute of Technology, noted, “the sudden emergence of war around 10,000 BCE and its recent decline suggest it’s primarily a cultural phenomenon and one that culture is now helping us to overcome. There have been no international wars since the U.S. invasion of Iraq in 2003 and no wars between major industrialized powers since the end of World War II. Most conflicts now consist of guerilla wars, insurgencies, and terrorism….”
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Overall, even the wars and genocides of the 20th Century — a series of conflicts Niall Ferguson has called “The War of the World” — amounted to just three percent of deaths worldwide (compared with 14-25% of such deaths in prehistoric and early civilizations); granted, many of these deaths were disproportionately-focused upon particular ethnic groups and localities of non-combatants, but preventing such effects in the future amounts more to adjusting our accepted ways of war than avoiding war altogether. Making those adjustments and helping society extract value from the cost of war has long been a role played by those concerned with the law. Hugo Grotius is considered the “father of international law”; his most notable work, De Jure Belli ac Pacis (On the Law of War and Peace)  laid the groundwork for much current international law and scholarship. In that work, Grotius argued that  self-defense, reparation of injury, and punishment could provide justification for wars and he outlined the “rules” under which combatants must conduct their wars, regardless of the justification for their causes.
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In more modern times, the school of noted international political philosophers known as “The Beatles” wrote that we should “give peace a chance” but also recognized that “happiness is a warm gun” . As war has become less prevalent and destructive in part because democracy has spread to more nations around the world in recent decades, let’s not forget that democracy has spread in part because of war. Some might argue that war is the opposite of peace; there exists considerable evidence that the greatest force for peace in human history has been war itself.  So, join us in peacefully surveying some of the best legal blogging of the past week and raising a glass or three of Rioja (Mike’s choice) or Coke Zero (Colin’s) to war.
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I am delighted to be co-hosting this Unsilent Partners Blawg Review with Colin Samuels.  We are using flags to indicate our respective contributions.  When we write together we don’t actually write together at all.  We talk about what we plan to write about  and then write separately.  In this Blawg Review we did not respond to each other’s posts – as we have done and plan to do in future Unsilent Partners blog pieces.  It is worth noting that the British Armed Forces only went one year in the 20th Century without fighting in one or other part of the world – and that was, I am told, 1949.  I do, however, concur with Colin’s introductory remarks and add only this quotation… which appeals to my dark side…
A democracy which makes or even effectively prepares for modern, scientific war must necessarily cease to be democratic. No country can be really well prepared for modern war unless it is governed by a tyrant, at the head of a highly trained and perfectly obedient bureaucracy.
Aldous Huxley
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AGINCOURT
On 25 October 1415 (St. Crispin’s Day), the Battle of Agincourt () was fought between fewer than 6,000 Englishmen under King Henry V’s command and approximately five times as many French troops. The battle demonstrated two things: 1) unless the man leading them is named “Napoleon”, French armies tend to fold like cheap tents; and 2) disruptive technology wielded by adept users can carry the day against overwhelming numbers. At Agincourt, the disruptive technology in question was the English longbow. Henry recognized the advantage of this weapon and archers comprised more than eighty percent of his forces; by comparison, the French forces were comprised more traditionally — approximately half were unmounted knights and infantry, with another five percent or so comprised of mounted knights. Henry had selected a narrow strip of ground bordered by dense woods to favor his archers and eliminate the French advantage in cavalry and numbers and the result was a decisive English victory wherein approximately 112 English were killed against as many as 10,000 French deaths. Nearly two centuries later, Shakespeare’s Henry V described the English forces at Agincourt as a “happy few” and a “band of brothers”:
This day is called the feast of Crispian:
He that outlives this day, and comes safe home,
Will stand a tip-toe when the day is named,
And rouse him at the name of Crispian.
He that shall live this day, and see old age,
Will yearly on the vigil feast his neighbours,
And say ‘To-morrow is Saint Crispian:’
Then will he strip his sleeve and show his scars.
And say ‘These wounds I had on Crispin’s day.’
Old men forget: yet all shall be forgot,
But he’ll remember with advantages
What feats he did that day: then shall our names,
Familiar in his mouth as household words
Harry the king, Bedford and Exeter,
Warwick and Talbot, Salisbury and Gloucester,
Be in their flowing cups freshly remember’d.
This story shall the good man teach his son;
And Crispin Crispian shall ne’er go by,
From this day to the ending of the world,
But we in it shall be remember’d;
We few, we happy few, we band of brothers;
For he to-day that sheds his blood with me
Shall be my brother; be he ne’er so vile,
This day shall gentle his condition:
And gentlemen in England now a-bed
Shall think themselves accursed they were not here,
And hold their manhoods cheap whiles any speaks
That fought with us upon Saint Crispin’s day
That these Englishmen were few in number is undoubtable; whether they were happy is certainly debatable. For purposes of this Blawg Review, they were a band of brothers with technology on their side against daunting odds.
Social media technologies have leveled the playing field somewhat for many in the legal profession, allowing wider dissemination of information and greater professional networking opportunities than in years past. Current Blawg Review Sherpa Victoria Pynchon recommended an article by former Sherpa Diane Levin describing some of these effects. For his part, Mark Bennett gave a “blatant shoutout” to three criminal defense lawyers  — John Kindley , Jeff Gamso , and Matt Kaiser () — who’ve recently begun in the legal blogosphere and are already becoming strong voices online.
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If those three are doing things the right way, Bennett reminds us that some others are not. He points to a recent post by Ken at the Popehat blog which called out a New York attorney whose marketing firm was spamming Popehat’s comments. A lengthy discussion in the comments prompted Ken to excise the attorney’s name from the post but did not convince him (or other commenters) that the premise of the post — that attorneys are responsible for the actions of their online marketers’ actions — was wrong. Mark Bennett wasn’t sure he agreed that the New York attorney should’ve been allowed a “freebie” due to his inexperience with online norms. Bennett revisited a recent dust-up he had with a marketer working for a California attorney: “The web designer not getting close supervision, the predictable happened: he went overboard. In her name. I raked her across the coals here. We talked on the phone, and I became convinced that she hadn’t had a clue what the web designer was doing on her behalf. I tempered the language in my posts about her a bit, but I didn’t remove her name. Would it have made a difference if she had left a comment instead, explaining what had happened? May have. Should a naive lawyer using poor judgment in choosing her marketing assistance get one freebie? Maybe.”
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Maybe today, but the day is fast approaching when lawyers will be hard-pressed to plead ignorance when their ethics come into question as a result of their online activities or those of their associates and marketers. Perhaps it’s an ethics topic which should be taught more frequently in continuing education seminars. What Scott Greenfield has seen of social media-related CLEs, however, suggests that the focus of the bar is on self-promotion and marketing rather than ethical concerns : “These conferences aren’t for the benefit of clients, but for the benefit of lawyers.  No one said you couldn’t take whatever courses you wanted, but that you can’t substitute continuing legal education for continuing marketing education.  No, they are not equivalents…. [T]he drizzle has become a deluge.  There appears to be no end to the number of programs, and the ready availability of people holding themselves out as experts to speak at these programs.  Just yesterday, a new one appeared in my emailbox, with speakers characterized as “social media practitioner” (huh?) and “twitter expert.”  Where does one take the test to become a twitter expert?”
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It would be difficult to explain away the conduct of GoSoloEsq.com as the result of simple naivete. That site has lifted content available for free at Carolyn Elefant’s widely-respected My Shingle site for solo practitioners, including her extensive online guides to solo practice and lists of resources. Elefant points out that a site which would steal from her  to sell free resources to unsuspecting clients is a poor choice for reliable guidance: “If a company is willing to copy (not even recycle) and charge for materials that don’t cost anything, then it is likely to try to bilk you for other services…. Do you want to affiliate with a company that doesn’t follow the law?  As I explained earlier, I believe that I have a colorable claim for copyright violation against GoSoloEsq.com, because the unique organization of the resources and the careful hand selection of items makes my list more than a mere compilation of data and elevates it to a copyrightable work.  Moreover, even if GoSoloEsq.com didn’t violate copyright law, it certainly violated the laws of decency, by stealing material from my site and charging people for it. I’ve done a little more poking around online and as of yet, haven’t found any bar associations that support or endorse GoSoloEsq.com.  Wouldn’t that have been an embarrassment?  As for me, I don’t plan to change anything at this site (except to prominently display copyright marks) — I won’t password protect my resources or charge you for them.  The best things in life aren’t always free, but I can say definitely that in this particular situation, they are.”
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If a few lawyers and legal sites have shown themselves to be a bit technology-challenged, many jurors have become a bit too technology-adept for some judges’ comfort. Robert Ambrogi reports that two California courts are cracking-down on juror use of online research tools: “In Sacramento, the court presiding over a wrongful death lawsuit is taking the unusual step of requiring jurors to sign a declaration attesting that they will not use “personal electronic and media devices” to research or communicate about any aspect of the case. Jurors will have to sign the declaration both before and after they serve…. Earlier this month in San Francisco, the Superior Court issued a proposed rule that would require potential jurors be given a reminder not to blog, tweet or conduct Internet research about cases. As reported in The Recorder, the proposed rule was prompted by a jury-selection episode in June, when an entire panel of 600 jurors had to be excused after it was discovered that several had conducted their own online research into the case.”
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While it’s possible to have too much information in the jury room, there’s no such thing as “too much information” for reporters writing about legal topics. Kevin O’Keefe suggests how legal bloggers can build relationships with the press . Huma Rashid explains how social media has begun to blur the line between what is considered (and reported) as “on the record” and what is not. She writes that, “Without borrowing too heavily from 1984, this lightning-fast dissemination of information is already proving to be very problematic for our elected leadership, and the problem will only get worse.” One reporter who needs no instruction in the ins and outs of technology and the law is IP Law & Business’ Joe Mullin. Mullin has been ably-covering the defamation trial of Patent Troll Tracker blogger Rick Frenkel and his former employer, Cisco Systems
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“I have seen war. I have seen war on land and sea. I have seen blood running from the wounded. I have seen the dead in the mud. I have seen cities destroyed. I have seen children starving. I have seen the agony of mothers and wives. I hate war.”
Franklin Delano Roosevelt
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Agincourt was a very stark reminder to the French that England was not to be trifled with, that power did not lie necessarily in Europe, nor in old technology. It demonstrated, beyond doubt, as Trafalgar did, as Afghanistan does today – if we are not careful – that numerical superiority and technology does not always win the day.  Holding the ground, holding to a principle is as important today as it ever was… perhaps even more so that we hold to our principles in law, as lawyers, as providers of an ethical service to those who seek our advice and our ‘technology’.
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The Divorce: The Blog about… Divorce has thisIKEA to produce flat pack divorce“After years of renown as the Mecca of marital discord, IKEA has finally succumbed to popular demand and produced the first flat-pack divorce.

‘The NISI is the very latest in lifestyle DIY,’ said an IKEA spokesman, who was still trying to find aisle 716B(i). ‘Conveniently located near the checkout where couples need it most, this self-assembly divorce comes complete with inane instructions, missing screws and the realisation that the thing you worked so hard to build together was actually a piece of crap that will fall apart in a few years time…..”  The Law Society gazette Obiter section reports this week….

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The Legal Profession today is under threat from a power every bit as impressive as French military array at Agincourt. The high street solicitor faces competition from Tesco, from the Co-op… so it is good to see that TESCO is gearing up to assault the High Street… but may yet be repelled by that band of brothers, that happy few…. the solicitors of our country.
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Obiter, the gossip columnist at the The Law Society Gazette, reports… “An article in International Supermarket News revealed that Tesco had launched an online legal services website. Tesco law was really here at last! But there was something slightly strange about the story. It quoted supportive comments from ‘Constitutional Affairs Secretary’ Lord Falconer, for a start. Surely he hasn’t held this title since 2007? Wasting no time, the Gazette was straight on the blower to the supermarket where Every Little Helps. What’s all this about a legal services website? Is it probate? Conveyancing? What areas of law? The Tesco press officer was bemused. ‘No, we are certainly not about to launch any new legal web offering,’ was the response, ‘though we have for some years sold do-it-yourself will packs online’. Hmm. So Obiter called the supermarket magazine itself, and spoke to assistant editor Riad Beladi, who had apparently already received quite a few calls on the subject, such was the general excitement. Alas, it turned out that the magazine had made a bit of a gaffe…… A story from 2004 had somehow resurfaced and the magazine had published it in error, failing to check with Tesco or check the date.”
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This is very British… this is often how great campaigns in commerce and war are conducted…. sometimes with fantastic results.  I was always taught… expect the unexpected…(which, when you think about it is pretty surreal advice… but I had some truly surreal teachers at the detention centre where I was educated all those years ago)…. this is how we won many wars… this is possibly how we will have to do it in Afghanistan… deal with the Taleban in a way they will not anticipate or expect? We shall see….
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On the subject of longbows and disruptive technologies… Pragmatist has this rather amusing piece…. : “A hat tip to Mark Nepstad for pointing out Chris Perry’s article on the challenge for any established business trying to leverage the social media. Just as the military potential of the aeroplane was not fully realised until the challenge was eventually handed over by the Army to a newly created Air Force, Chris suggests that marketing teams need to be re-engineered in order for businesses to realise the potential afforded by a phenomenon as ‘revolutinary’ as the social media……But this misses the wood for the trees…. ”
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Lex Ferenda is keeping an eye on what our government is up to…. “the rumoured change of view, as widely reported (e.g. in the Guardian), by the Department of Culture, Media and Sport is that the UK will allow certain forms of product placement on television.” Good grief… does this  mean that all those items lovingly filmed in television dramas have been placed *illegally* to date?
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TRAFALGAR
On 21 October 1805, the Battle of Trafalgar saw the British navy outnumbered by the combined forces of the French and Spanish. Admiral Horatio Nelson prepared a brilliant and unorthodox plan of battle for his fleet. Conventional wisdom at the time held that opposing fleets should form into lines of battle parallel to one another, to maximize intra-fleet communications (using signal flags) and fields of fire. Notwithstanding, the British had enjoyed some success in recent battles at Camperdown and Cape St. Vincent by sailing straight at enemy fleets, disrupting their lines and relying on superior English training and gunnery to prevail. The plan was not without risks; during the approach to the French-Spanish line, the lead English ships (including Nelson’s flagship, Victory) would be exposed to sustained fire to which they could not answer. Nelson accepted those risks, believing that his opponents would shrink from the battle and that their skills were not equal to those of his men. Nelson’s signal officer raised his message to the men of his fleet — “England expects that every man will do his duty” — before his lines sailed toward the French and Spanish and into history.
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In the aftermath of the decisive victory (the French and Spanish lost 22 ships and suffered 12,781 killed, wounded, and captured to Britain’s 1,666 killed and wounded), Napoleonic France was prevented from a build-up of its naval forces by a British blockade; no naval power would challenge Britain for the remainder of the 19th Century and the island was made safe from invasion. Security at home and mastery of the seas enabled the consolidation of the British Empire and the spread of democracy, commerce, and — perhaps more meaningfully for the readership of Blawg Review — English common law-based institutions. Trafalgar demonstrates that decisive victory in war is capable of settling some issues decisively.
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If Trafalgar helped to make the world safe for commerce for a century, the collapse of Lehman Brothers and other commercial interests threatened to unravel decades of progress and the social and economic institutions of several nations. These setbacks were widely-expected to change things decisively; never again would we allow our economic and other interests to be jeopardized by the machinations of self-interested and often dishonest people and organizations. Bruce MacEwen looks back at the collapse of Lehman Brothers a year ago and wonders whether it proved to be a decisive event: “[The decision] not to invoke the Fed’s powers in “unusual and exigent” circumstances to save Lehman was the right thing, even if it might have been unwitting.  Why?  Again, as above, because it created “what had hitherto been lacking:   the political will for a wholesale bail-out of the US financial system…. The problem is that there was no follow-on to TARP in the form of a clear and convincing Congressional and/or regulatory statement that “too big to fail” has been repealed.  The problem is that the few, even more enormous, financial institutions left standing feel even more secure than ever that the government will, when push comes to shove, ride to their rescue.  As Ferguson puts it, “who would now risk ‘another Lehman’?” Lessons learned? To be sure, but not all of them correct.”
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A New York judge rejected a proposed settlement between the Securities and Exchange Commission and Bank of America as “not fair, first and foremost, because it does not comport with the most elementary notions of justice and morality, in that it proposes that the shareholders who were the victims of the Bank’s alleged misconduct now pay the penalty for that misconduct.” The repercussions of that decision were widely-debated this week. Bruce Carton asked whether the judge’s decision was a “game changer” which “cuts to the heart of the current securities litigation settlement process.” Carton noted that Judge Rakoff is an influential judge in this area and his decision could affect future settlements and litigation: “For years, there has been a debate as to whether this practice of having current shareholders pay former shareholders in these settlements makes sense.  Although Judge Rakoff did not address this point, there is often a significant overlap in these two groups, so shareholders will actually be paying themselves…. If Judge Rakoff finds the current settlement structure for SEC and securities class actions to be “absurd” and “not fair,” then big changes could be on the horizon.” David Zaring was critical of the decision , suggesting that “really, parsing deals like Rakoff is doing here does no one any good.” He found himself in the minority when he argued for deference for the SEC’s expertise in negotiating appropriate settlements: “Call me an apologist.  Or call me a fan of free will – here, the free will of the parties to settle their disputes on their own terms.  And, even though you can get way too involved in the “find the pea” shell game of whose responsibility this is, if you don’t like the fines that the SEC imposes on regulated industry, perhaps you ought to bring your complaint to the SEC, rather than relying on a judge who, despite some SEC experience, isn’t really revealing a lot of familiarity with what the agency does many times a year.” Scott Greenfield was one of those who applauded the judge’s ruling () and was critical of the SEC: “That Judge Rakoff’s eminently sane rejection of this deal comes under attack for its failure to let the SEC have its way reflects a fundamental misapprehension by the SEC of its reason for being.  It exists neither to serve the financial industry, as friend and protector, nor to meet the expectations of lawyers who are, for a brief period in their career, in its employ.  And thankfully, Judge Rakoff said “no”. Zaring may be absolutely correct that the SEC lacks the gumption to go to trial, and won’t be forced into the well no matter what Judge Rakoff orders.  But that’s an indictment of the SEC as well as Bank of America.”
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“Firstly you must always implicitly obey orders, without attempting to form any opinion of your own regarding their propriety. Secondly, you must consider every man your enemy who speaks ill of your king; and thirdly you must hate a Frenchman as you hate the devil.”
Lord Horatio Nelson
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Trafalgar is, without doubt, my favourite battle, my favourite example of the individual and the individual’s way of thinking. It often wins the day and it did that day.  I don’t, as it happens, agree with obeying orders… some orders, given by those of limited ability and intellect are not worth obeying….  and so it is with governments and lawmakers who bring us laws that people simply will not comply with. Fortunately they are few are far between…. but all governments should be wary of bringing in laws (or using military force) that  people will not accept.  I seem to recall, in our not too distant  history, that troublesome laws led, in fact, to a spot of difficulty with our cousins in the Americas and they started chucking tea into the river. Let us never forget why we all now drink coffee from Seattle… and talking of Seattle…leads me, ineluctably, to Kevin O’Keefe and his Nelsonian approach to spreading the word of the lawyer on Twitter.  He gets my vote and I need say no more. He is not without critics and he does not flinch… he turns a blind eye, but with courtesy, to those who denigrate his efforts to get lawyers to talk to each other on Twitter, on Lexblog and on other social media. Real Lawyers Have Blogs… and to that I say… res ipsa loquitur… even though I am an academic lawyer.   I don’t provide a link to a specific post on Kevin’s blog or on Twitter – It would be out of date within 30 minutes.
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As Nelson said… “I have only one eye, I have a right to be blind sometimes… I really do not see the signal!” Sometimes this is the best way forward….. it doesn’t always work… but I find the maxim increasingly useful. It is a maxim, I would have thought, which would serve a lawyer well?
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Nelson did not look inwards… and Cearta.ie has a wonderful post this week about the The Sins of academics and students – appropriate at this time of year as a new legal year begins… and new entrants begin their studies to join our profession.   I particularly enjoyed this from his post: Sartorial Inelegance (this matter is always in the eye of the beholder, especially if my tie is too loud);
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Another UK blogger who does not do  ‘inward looking’  is John Flood in his Random Academic Thoughts (RATs) blog.  John has many facets… and with his highly developed skill on Google he has found many examples of what John Flood has been up to.  Here…  a John Flood … has something relevant to our theme this week.
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I also happen to believe that this Nelsonian sentiment is a good one... especially for those who have work life balance *ISSUES* or are members of what Scott Greenfield and another good blogging friend of mine…. who shall remain, ironically, anonymous, calls the *Slackoisie’*….
Let me alone: I have yet my legs and one arm. Tell the surgeon to make haste and his instruments. I know I must lose my right arm, so the sooner it’s off the better.
Lord Horatio Nelson
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And so to Bitcher & Prickman… not so much bloggers, but US lawyer cartoonist anarchists who would, without putting words in their mouths, appreciate the Nelsonian attitude to life and the law. Their blog and cartoons are very much worth a look…. it will improve your health and humour to have a look. You only need one arm, of course, to click a link.    Brian Tannebaum in his blog Criminal Defense considers the issue of a judge who was not prepared to turn a blind eye to lawyers and clients being late.  Some judges shout about this… to little effect, it would seem.

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RORKE’S DRIFT
On 22-23 January 1879, the Battle of Rorke’s Drift was fought between a desperate contingent of 139 British troops and a force of as many as five thousand Zulu warriors (Impis). Rorke’s Drift was a supply outpost and hospital facility supporting the British invasion of Zululand, in present-day South Africa. On 22 January, the main British force was poorly-deployed and, by some reports, poorly-supplied at Isandlwana ; there, the Zulus effectively wiped out the British and ended the invasion (although a subsequent British invasion was successful). Isandlwana remains Britain’s worst defeat by a native army. From Isandlwana, a detachment of between 4,000-5,000 Impis was sent to Rorke’s drift to finish off the contingent there. Three British officers — John Chard, Gonville Bromhead, and James Langley Dalton — assessed their circumstances — poor defenses, the desertion of a number of native troops, and, excepting a few wounded, only 120 healthy soldiers — and ordered the construction of rudimentary defenses from the supplies stored at the outpost. These hasty preparations were put to use over the following hours as the troops fell back into planned positions, shortening their lines of defense. These defenses held and Rorke’s Drift stands as an example of extraordinary heroism in the face of almost-certain annihilation. Eleven Victoria Crosses were awarded to the defenders of Rorke’s Drift — still the highest number ever awarded for a single engagement.
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Small firms and solo practitioners face long odds every day and many succeed by using their resources creatively. As at Rorke’s Drift, even against desperate odds, small groups and individuals can accomplish much with a determined, considered effort.
One writer who’s often challenged the idea of “business as usual” in law firms is Jordan Furlong. This week, he suggests that firms can learn a few things from the car industry’s development of electric vehicles and other retailers’ business models: “In the law firm context, we’ve long assumed that some elements, like extensive law libraries, were permanent physical fixtures. But while I hardly recommend tossing away all your texts, the fact is that many firms have streamlined their expensive premises by downsizing and computerizing their knowledge resources. But the electric car example offers many other possibilities. What if most of your administrative and secretarial support were outsourced to lower-cost jurisdictions or different time zones? What if telecommuting and telepresence became so affordable (as they almost certainly will) that your lawyers didn’t need to congregate in one place five days a week? Then you suddenly have the opportunity to rethink  your physical plant altogether. If you don’t have law books or legal secretaries or law firms, what does your law firm look like? Does your physical premises become less important than your website? Good questions, and they’ll need answers…. [T]raditional law firms will continue to be the norm for a while yet. But we have the opportunity now to realistically picture what comes next. Think of all the longstanding features of a law firm we take for granted — up-or-out partnership tracks, hourly billings to clients, billable-hour-based compensation for lawyers, powerful rainmaking partners, annual partnership draws, exclusive lawyer ownership, and on and on. Then loosen or remove even one or two of them, and consider the multiplicity of variations that result — the possibilities just keep unfolding.”
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Elie Mystal profiled two Quinn Emanuel associates  who have decided “to take the plunge” and set out on their own, choosing to leave the receding security of BigLaw in trying economic times. Mystal notes that “there are opportunities out there for the willing. Well, at least for the risk-loving.” Perhaps their new firm will succeed and perhaps not; regardless, Tim Casey has a bit of advice to offer them and other lawyers serving corporate clients — don’t forget to serve your clients. Casey writes: “Talk to your clients. Understand their goals. Discuss various ways to achieve those goals. Realize that your client may desire a result or a way of getting to that result that is not what you would have chosen. Then go out and deliver what your client asked for. You’ll find this to be a successful  business model (gasp!).  Lawyers are notoriously bad business persons, but at a minimum we should be good listeners. And if listening leads to action and good communication between you and your client, you’ll find that your legal practice is ultimately more successful and more fulfilling. If you don’t listen to your clients, you may find that you don’t have much law to practice. This is not to suggest that you should avoid communicating frankly with your clients when their expectations are out of whack. Quite the opposite. You are the professional, and the subject matter expert. But sometimes clients tell us their goals and we go right to the list of reasons why those goals can’t be achieved. Before you do that, take a moment to think outside of the box. Can you do something differently, or approach the problem in a different way, in order to deliver results for your client?  Talk it over; think it over; be creative and thoughtful. And once you’ve looked at the problem from all sides, communicate with your client about realistic expectations.”
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It’s also good advice that one should develop expertise in valuable niches. Adrianos Facchetti described a plan to “fast-track” that development process , compressing it into six months of intense study. He described his own experience in becoming a recognized authority on internet defamation and suggested that others could emulate his example: “I believe I became an “expert” on the subject in less than 6 months because I studied it like crazy and few people knew anything about it. However, I certainly became an expert within 6 months because Google said I was. And one thing is for sure: You are what Google says you are.” Scott Greenfield was largely supportive of the study and hard work Facchetti undertook to develop his expertise in his chosen niche, but was particularly distressed by the suggestion that Google ranking could be a meaningful measurement of expertise : “Curiously, it appears that Adrianos did so many of the right things for the wrong reasons.  Hidden within his post are the details that reflect his accomplishments, selecting a niche that he cared about and was interested in, and working hard to learn the substantive aspects of his new-found niche.  While these by no means establish “expertise” in fact, they are certainly on the path. However, the whole of the post presents a dangerous, and damning, proposition, that one can create the fictional appearance of expertise on the internet in 5 easy steps in 6 months.  The fact is that Adrianos is quite right, the internet is awash in people who have fabricated the appearance of “expertise”, and most people can’t tell the difference between those who possess the expertise they claim and those who are total frauds.  Indeed, many of the most prominent frauds have aggregated their voices to create a hosanna chorus around each other,  carefully protecting each other so that no one will learn of the sham.” Mark Bennett went further, challenging Facchetti’s contentions directly.
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He writes:
But if I needed to refer a client to a lawyer to actually investigate or file suit or try an internet defamation case, I would look for someone whose expertise included actually investigating or filing lawsuits or actually trying cases. Whether that lawyer had studied internet defamation law would not be important—I would figure that he could get up to speed in the niche quickly enough to neutralize any advantage that someone with six months’ study would otherwise have. This is what trial lawyers do: learn enough about disparate areas of knowledge quickly enough that their former ignorance is no longer a handicap.
While it would be brazen of me to claim expertise, I am more than competent at picking juries and at cross-examining witnesses; that is after 14+ years of actually picking juries and cross-examining witnesses, and studying diverse related fields outside the law. Expertise in those endeavors could not possibly be gained in six months by anyone. Fourteen years in, I still get better every year.
There are many similars areas, in which six months is not enough to even make a dent in becoming an expert (or even an “expert”).
There are undoubtedly many narrow areas in which one can become a sort of expert in six months, but here is the problem with the sort of “expertise” that can be acquired in six months: it’s transitory. If it took you six months to become expert in a subject, someone else can do the same as quickly. The law is often adversarial, and if your adversary is as motivated to become expert as you are, he can attain superior expertise as quickly as or quicker than you, even if he has spent the past decade honing the trial skills that you lack.
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“I must study politics and war that my sons may have liberty to study mathematics and philosophy. My sons ought to study mathematics and philosophy, geography, natural history, naval architecture, navigation, commerce and agriculture in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry, and porcelain.”
John Adams
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But to the last quotation I would add this quote.  The meaning is clear and needs no further comment from me….
War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature, and has no chance of being free unless made or kept so by the exertions of better men than himself.
John Stuart Mill
My focus in this section is not the law bloggers… but a few political bloggers in the United Kingdom. There is a wealth of analysis, comment and good writing to be found in political blogs in this country.  Time and space permits only the briefest of mentions,  but I have a Netvibes page which lists some of the more well known political bloggers and you can also get a fair taste by looking at The Wardman Wire.  I disclose an interest in the latter  – I have done and will do more podcasts for the Wardman Wire.
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The rule of war determines the rule of law – at least, for an ageing Positivist like me who believes that our laws have been shaped by war over centuries and not handed down from some divine being  or natural law ethos.
If we are to have a meaningful rule of law it is essential to that process not simply that we have competent judges and lawyers but those who make laws on our behalf behave beyond reproach.  Guido Fawkes is usually in the van when it comes to revealing and commenting on the misdemeanours of politicans and in his weekly Sunday Sleaze section this weekend he has none other than our Attorney-General, Baroness Scotland, in his gunsights.
I quote in full…

“Patricia Scotland, who was at the Home Office before becoming Attorney-General, has wrongly claimed some £170,000 since 2004.  The £38,280 a year over-claim is only for ministers who have a primary residence outside the capital.  Patricia has a £2 million home in Chiswick, West London.

Labour MP Graham Stringer told The Mail on Sunday that if Lady Scotland did not make a ‘principled resignation’, she should be fired by Gordon Brown.

‘It is extraordinary that after four days she is still in the post… The whole Government is tarnished. People feel the Government is passing laws it is not applying to itself.’

Despite giving her his full backing, if Brown thinks Patricia Scotland can remain as Attorney General, he is stark raving mad.”

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The Ranting Penguin notes… Odd that this should hit the light of day now, with Gordon McCavity declaring that he has full confidence in her.

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Rorke’s Drift was a story of herosim on both sides; a small group of men fighting against overpowering odds to achieve a result. Curiously, there are not unreal parallels with the desire of a small country – Scotland – to achieve true independence from Britain today; a view shared by many, but not all in Scotland. Alastair Campbell, spinmeister deluxe of the Blair government and author of The Blair Years, is an enthusiastic blogger.  This weeks in a post entitled Here goes with the smoked Salmond he writes… “There are two party leaders hoping David Cameron becomes Prime Minister at the next general election. One is David Cameron. The other is Alex Salmond.”

Where I started to hear the banging of spears against shields and could almost see the Zulus on the horizon or the  modern Bravehearters shouting FREEEEDOM at Bannockburn… was where Campbell wrote this… classic Campbell… “So why would Salmond prefer Cameron? Because when it comes to the argument for independence, it will be easier made against a very English, very right-wing, very elitist leader of a very English, very right-wing, very elitist government which has shown precious little interest in Scotland. Indeed, so far as Scotland’s relations with the Tories are concerned they are still defined as much by Thatcher as by Cameron.”

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In war there are examples of mad acts of heroism.  In politics there are just stories of mad acts. Tory pundit and blogger Iain Dale notes in his ‘Diary’…”Have you ever heard a crazier idea than THIS?Apparently Labour Ministers are intending to pass laws to ensure that all motorists are found to be the guilty parties when involved with accidents involving pedestrians or cyclists. Unbebloodylievable.

I always thought justice involved proof of guilt, not arbitary judgement.”

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It feels a bit like the last Days of The Reich in modern Britain. A Labour government on the ropes, led by a mad leader.  I am not, of course, saying that our Prime Minister IS mad – but there are plenty of political bloggers and others who are happy to say that he is stark raving bonkers.

Tom Harris MP usually has interesting things to say and here he gives a view on the third party, the Liberal-Democrats:

“THE CHOICE at the next election is not between red and blue, the LibDem leader has said. It’s between yellow and blue.

Yes, of course it is, Nick. Now run off and play, and don’t get into any trouble…”

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And we must not, of course, forget how money can play its part in war and the political war. Here is Capitalists@Work with GOLDFINGERS… a video worth watching – in fact a must for lovers of political parody in Britain if you haven’t seen it before …“How to balance the books, reduce government debt, strengthen sterling and hedge against inflation. Gordon Brown’s masterful new Youtube video ready for launch during the leader’s speech at the Labour Party conference.”

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And finally… to give you a flavour of why I enjoy the political blogs… here is the Spectator in full flight… not something the US and British armies do very often…. 

“What is making news, though, is what Boulton reveals about relations between the Blairites and Brownites. In a way, it is no surprise that Blair regards Brown as a quitter not a fighter. Brown’s avoidance of contests where the result is not certain has been a feature of his political career. Again, it is—when you think about it—not a shock that some in Blair’s circle think that Brown might leave Downing Street early to avoid being the Labour Prime Minister who takes the party down to one of its worst-ever defeats. But these stories being injected into the political bloodstream at the start of conference season will not help Brown. It will create yet more chatter about his position.”

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D-DAY

The Normandy Landings were the landing operations of the Allied invasion of Normandy, also known as Operation Neptune and Operation Overlord, during World War II. The landings commenced on Tuesday, 6 June 1944 (D-Day), beginning at 6:30 British Double Summer Time (UTC+2). In planning, D-Day was the term used for the day of actual landing, which was dependent on final approval.

The assault was conducted in two phases: an air assault landing of American, British, Canadian and Free French airborne troops shortly after midnight, and an amphibious landing of Allied infantry and armoured divisions on the coast of France commencing at 6:30. There were also subsidiary ‘attacks’ mounted under the codenames Operation Glimmer and Operation Taxable to distract the German forces from the real landing areas.

The operation was the largest amphibious invasion of all time, with 175,000 troops landing on 6 June 1944. 195,700 Allied naval and merchant navy personnel in over 5,000 ships were involved. The invasion required the transport of soldiers and materiel from the United Kingdom by troop-laden aircraft and ships, the assault landings, air support, naval interdiction of the English Channel and naval fire-support. The landings took place along a 50-mile (80 km) stretch of the Normandy coast divided into five sectors: Utah, Omaha, Gold, Juno and Sword. (Wikipedia)

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“Naturally the common people don’t want war; neither in Russia, nor in England, nor in America, nor in Germany. That is understood. But after all, it is the leaders of the country who determine policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country.”
Hermann Goering
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I am not at all sure that Herr Goering’s cynical view of the ability of government to persuade its people about the value of war has lost favour with some of our modern leaders.  The premise upon which Tony Blair persuaded the British electorate that the Iraq war was justified (by no means universally accepted by people in Britain or elsewhere) was the need to deprive Saddam Hussein of his ‘weapons of mass destruction’  – weapons which, of course, were never found.  We should not forget that, but moving on…
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Appropriately, for this section, Informationoverlord has an interesting post: Court rules ‘browserwrap’ agreement unenforceable. He notes: “A browsewrap agreements are basically ones which say you accept the terms and conditions of the website you’re using. Generally it can only be enforced if a user assents to it – or there is a reasonable likelihood that they would be aware of the terms and conditions (T&Cs). U.S. District Court Judge Sterling Johnson, Jr has ruled that the browsewrap agreements on Internet retailer Overstock.com’s website in unenforceable because there is no evidence that users of its website have ever read the T&Cs.”
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A loss of momentum would have been fatal during the Normandy Landings. Pink Tape, after a short summer break, has too much work on for the present,  but assures us that she will be back to blogging soon.  British blogging seems to be suffering, for the present, from a ‘barbecue summer’  and the torpor which often follows from a long vacation.   The Independent Safeguarding Authority has come in for some flack recently with normal people outraged that they are to be subject to criminal checks if they are to be involved in picking children up from school.  Some say, that this is an intolerable intrusion into our lives.  Others say that we must protect children.  I don’t have children.  I therefore limit my comment to noting that apart from the odd teacher who took an inordinate interest in ensuring that the boys took showers after games, neither the schools I attended, nor the parents who took it in turns to share pick up runs during holidays exhibited any tendency to cause harm.  I wonder if we have changed so much  in 40 years that every parent is guilty until they have paid a fee to be checked by the criminal records bureau before they can take a friend’s child, along with their own, to school or to games? The Lords are considering this and Clive Soley, or Lord Soley as he now is, comments on the ISA in Lords of The Blog.  I could make some wry and cynical comment about it being good to see Lords writing blogs rather than scouring the country looking for punters to pay for them to ask questions in the House of Lords – but that would just be inconsiderate of me, so I won’t. Fortunately they are not all ‘at it’. But in the spirit of freedom gained by the blood of men and women of the D-day generation who fought and died so that we may live our lives in peace, with dignity, it may be that the time has come to commit to real democracy in this country and have an elected second Chamber.
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Talent is, of course, vital in war as it is in life. Sometimes the Generals are not available, sometimes the best cricketer has  an injury after the recent Ashes win over the Australians and our one day team gets hammered. Sometimes we just can’t step up to the plate and perform.  I think it was Napoleon who said “Not tonight, Josephine”. It would be inelegant not to mention one of the stalwarts of UK Blawging – Carl Gardner, ex government lawyer, who writes the Head of Legal blog.  He is taking a vacation but will return soon.  His last post was about the decision of the Scottish government to release Al-Megrahi.  I agreed with every point Carl made in his last post before going on vacation : Al-Megrahi: I agree with the Americans
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Not a blogger, @infobunny is a serial Tweeter, with an eye for the surreal.  Her latest venture into paintings has provided a lot of pleasure for many on twitter… “I am the walrus. Who the f**k are you?” is the latest in a line of four paintings.  I like them.
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The landings by Britain, the U.S., and their allies on the beaches at Normandy faced more than a few challenges. Not the least of these were the inherent difficulties of attacking a well-prepared enemy on ground he controls. Norm Pattis discussed some of the challenges of winning on the road, describing a case where the prosecution was clearly the home team and he was, just as clearly, an unwanted visitor: “I keep reviewing this exchange and several others from trial today, wondering what happened and why. I see no logic and no law supporting some of what went on. As sleep flees it occurs to me I am in a foreign court. It is as if I have traveled to a foreign state to try a case among folks who know one another well and view my ways as foreign. I lack a home court advantage here: there are now bonds of trust between prosecutor and judge built by working together case after case. Discretion, when it is abused in this case, favors the familiar party, and in this case, that is the state. I am unnerved by this and bitter. The law may not insist on a perfect trial, but it demands a fair one. The subtle bonds of familiarity between prosecutor and judge breed a contempt for the outsider. My client deserves better, and tomorrow I must find a way to deliver it. That will require more kindness and patience still, and tonight I am struggling to summon it.”
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Estimating numbers is always a challenge in wartime; even the best intelligence is flawed, subject to human error committed by the gatherer and efforts by the target to obfuscate information. Leaders are often obliged to react to incomplete information and to act based on developing trends, extrapolating from partial results. Scott Henson suggests () that the State of Texas should react more strongly to the indications that considerable numbers of its prisoners are in fact innocent of the crimes for which they’re serving time or awaiting execution (or, as in a notable case recently, probably already executed). He notes that the numbers of prisoners exonerated already by the Innocence Project indicates that hundreds, if not thousands, of prisoners in Texas are innocent of their convicted crimes. Disparities in evidence handling from county-to-county, he argues, accounts for some of the disparate numbers of exonerations seen thus far.
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An exoneration of sorts was granted recently to computer scientist Alan Turing , whose work during World War II was instrumental in breaking German codes and gathering key intelligence which enabled successful operations throughout the war and saved countless lives. Turing, who was homosexual, was persecuted after the war for his sexual orientation and ultimately driven to suicide. Blogger Jack of Kent offers a tribute to Turing () and writes that his exoneration, via a public apology by current Prime Minister Gordon Brown, was long overdue:
  • Of course, a posthumous apology or pardon is always a mere gesture. Nonetheless, the greatness of Turing – and the undeniable sheer importance of his work in the war and in computers and the appalling injustice done to him – must force anyone to reconsider using the law to criminalise homosexuality, or to regard homosexuality as to be treated as an illness. Such people still exist. The Prime Minister’s apology – an official acknowledgement of official wrongdoing – makes it just that more difficult for such bigots to prevail again. The apology also reminds us just how recent “modern” times are.
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Brian Cuban discusses why, all these years after D-Day broke  the Nazis’ hold on Europe, modern-day collectors of Nazi memorabilia deserve an opportunity to put their collections into context, but also notes that they’d better make a compelling case for their actions: “In my mind, understanding the context of such activities is vital in coming to judgment about them and him or anyone who collects controversial historical artifacts that by their very nature offend certain groups.  Nazi memorabilia would certainly fall within that classification. Context is important because  the collection and display of Nazi memorabilia  can be and often is a form of Anti-Semitic hate speech in itself.  eBay recognized this when it banned the buying and selling of such merchandise world wide. Would I be offended if someone had a Nazi Swastika framed or displayed on the wall of their home even if I knew he was a collector? Absolutely.  The only context I take from that is at worst Antisemitism and at least, crass insensitivity to who may lay eyes on it and be offended. I would not even ask for an explanation.  I am out of there never to return. If I walk into that same collector’s home and saw a plaque with various signs and patches of the Axis, including a Swastika, on one side and of the Allies on the other?   That has a different context to me and I probably would not be offended.  I would want to know more. I would at least want more information to gain better context to know what I am dealing with.”
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Dan Harris notes that another invasion is underway — that of China by topless foreign women. Unfortunately for the authorities in charge, there was no law on the books prohibiting this conduct and so they were unable to intervene. Poor fellows. At least the Nazi defenders at Normandy had some weapons at their disposal. To make matters worse, the woman involved was a Bulgarian, so it’s a near certainty that the nudity was not enjoyable in the least for those around her. Anyhow, Harris valiantly attempts to find a bright side — ANY bright side — to Bulgarian nudity: “This does not prove there is freedom of political expression and this does not prove bureaucrats do not sometimes act thuggishly, but this does prove that China does have laws that are followed. This also proves something perhaps even more important. This proves something many of my expat friends in China are always talking about. They say they find it ridiculous that China is viewed as this incredibly oppressive place where the government is spying on you all the time and concerned with your littlest actions. They oftentimes like to tell me that China actually has more freedoms than the United States or England. I am very skeptical of these comparisons, but I certainly concur that individual freedoms in China are given a fairly decent swath, so long as they do not impinge upon the government/party.”
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NUREMBERG
The Nuremberg trials were a series of trials, or tribunals, most notable for the prosecution of prominent members of the political, military, and economic leadership of Nazi Germany after its defeat in World War II. The trials were held in the city of Nuremberg, Germany, from 1945 to 1946, at the Palace of Justice. The first and best known of these trials was the Trial of the Major War Criminals before the International Military Tribunal (IMT), which tried 22 of the most important captured leaders of Nazi Germany. It was held from November 21, 1945 to October 1, 1946. The second set of trials of lesser war criminals was conducted under Control Council Law No. 10 at the US Nuremberg Military Tribunals (NMT); among them included the Doctors’ Trial and the Judges’ Trial. (Wikipedia)
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“Every gun that is made, every warship launched, every rocket fired, signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. The world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children.”  [1953] Dwight D. Eisenhower
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To the victors belong the spoils of war and in this case the right to impose victor’s law, which included the death penalty.  The death penalty was exacted for 12 of the leading members of the Nazi regime – although two men (Goering committed suicide the night before the execution and Martin Bormann was sentenced ‘in absentia’) escaped the hangman.  As it happens, despite a long history of hanging people – at least according to cowboy movies, these executions were botched by the American hangman (although the US Army denies this).

The death sentences were carried out 16 October 1946 by hanging using the standard drop method instead of long drop. The U.S. army denied claims that the drop length was too short which caused the condemned to die slowly from strangulation instead of quickly from a broken neck. The executioner was John C. Woods.  By contrast, not that one wishes to take a nationalistic point on this in case American readers get hung up on the issue –  Albert Pierrepoint, for years Britain’s favourite hangman (who ran a pub called “Help the Poor Struggler”), executed 200 lesser members of the Nazi regime including Irma Greese, who he described as the bravest woman he had ever hanged.  Pierrepoint was known (and valued) for his efficiency and the quickest recorded time for a hanging from the moment he entered the death cell to the springing of the trapdoor and instantaneous death by a broken neck was 7 seconds.

I am an opponent of the death penalty and I am surprised that it continues to be used in many civilised nations, including a number of states in the United States, Japan and Malaysia.  I do not mention other countries, not because they are ‘uncivilised’,  but because the list of countries still using the death penalty is rather long – 65, I believe. A well known blogger Gideon, in the United States, who writes the Public Defender blog,  is a staunch opponent of the death penalty and his blog is always worth reading.

Well… all this is rather cheerful on an Autumn Sunday morning… but…there again, few wars are cheerful, despite the best efforts of the movie makers and crass television drama renditions.  So… what have the bloggers been hanging their rants and opinions on in relation to human rights, the administration of justice and trials and tribulations of life?

John Bolch of Family Lore, commentator of that most warlike of human ventures – marriage and divorce – notes this week: “I see that Baroness Deech is at it again. Having put the knife in to any prospect of a decent law protecting cohabitees for the foreseeable future, now she’s having a go at the ancillary relief system, claiming that it is unfair towards husbands, according to a report in The Times today.

In another field of human endeavour – qualifying for the Bar, Simon Myerson QC, author of Pupillage and How To Get It, (a must read for any prospective student who wishes to be called to the Bar of England & Wales) notes:  – “I wish you all luck and I hope you all have a plan B – obtaining pupillage is not getting any easier.”

Perhaps another illustration of the ‘To the victors belong the spoils of writing history’ is Bearwatch’s observation in a post this week: ” BBC economic journalist Robert Peston recently professed himself “nauseous” on reading of the paltry £9 million per head earned by the hapless Rover Four; yet when I read his book “Who Runs Britain?” this year, I failed to see him confess a similar gut reaction to Sir Philip Green’s £1.2 billion dividend raid on Arcadia Group. (Actually, the money went to his wife, who is domiciled for tax purposes in Monaco, but that hardly improves the flavour.)”

And while we are on the topic of trials, justice, punishment, revenge, retribution and the administration of what we like to call JUSTICE – Bystander JP, who writes the Magistrate’s blog, has a rather forceful observation with this…

It’s Not Only Here Then

“California has a prisons crisis – 150,000 inside in the state, as against 82-odd thousand in the UK.”
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White Rabbit, who is a well known UK blogger – a barrister who describes himself thus: “The law I do is concerned with blood splatter patterns, bodily fluids and firearms residues as opposed to the more esoteric (and lucrative) commercial stuff.” says….. I’ve been too busy for serious blogging of late – or at least that’s my excuse.” I can relate to and admire a man who says of his own law blog …I’ve been too busy for serious blogging”. Unsilent Partners is, of course, a more serious forum than my own Charon QC blog. White Rabbit does, however, have a non-photoshopped picture of a Giant yellow duck in the water outside some Marina and a post about comedian Max Wall who fell over outside Simpson’s in the Strand, cracked his head and died soon after.

To some extent, Nuremberg, the War, delivered a new Europe and with it new European Institutions. It is, therefore, entirely serendipitous  (recently) that Barbara Cookson is guesting on NIPC Law, a very incisive blog with The European Court of Justice Explained and perhaps ironic that the The European Court of Human Rights has handed down a significant judgment finding that France is in breach of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights because of the manner in which the French Banking Commission investigated and punished infringements of French banking law. (The EU Law blog)
The work of adjudicating Europe didn’t end with the trials at Nuremberg. Duncan Hollis extended a warm blawgosphere welcome  to a new blog, Adjudicating Europe , although he would’ve preferred that its academic proprietors not blog anonymously. In a pair of posts, Peggy McGuinness noted the return of the United States to the U.N.’s Human Rights Council and suggested a number of ways the U.S. and other democratic states can help to reform the Council. There’s certainly a lot to do. Just this past week, the Council issued a one-sided report which condemned Israel for its military actions against Gaza and the Hamas terrorists who control it.
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As Beth Van Schaack explains, “Crimes against the peace (the crime of aggression in today’s lexicon) was the centerpiece of the Nuremberg Trial, which was to be the “trial to end all wars.” Indeed, the Nuremberg Judgment reasoned that aggressive war was the proximate cause of the other crimes within the jurisdiction of the Nuremberg Tribunal—war crimes and crimes against humanity. Notwithstanding its prominence in the postwar period, the crime of aggression all but disappeared in the pantheon of international criminal law after WWII.” She relates, in a series of four posts (, , , and ), that the Crime of Aggression is (apologies to Monty Python) not dead yet but not at all well, and that the U.S. can and should seek to bolster its enforcement by the International Criminal Court, despite its lack of commitment to the Court itself.
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AFGHANISTAN

The War in Afghanistan, which began on October 7, 2001 as the U.S. military operation Operation Enduring Freedom, was launched by the United States with the United Kingdom in response to the September 11 attacks.

The stated aim of the invasion was to find Osama bin Laden and other high-ranking Al-Qaeda members and put them on trial, to destroy the whole organization of Al-Qaeda, and to remove the Taliban regime which supported and gave safe harbor to Al-Qaeda. The United States’ Bush Doctrine stated that, as policy, it would not distinguish between terrorist organisations and nations or governments that harbor them.

Two military operations in Afghanistan are fighting for control over the country. Operation Enduring Freedom (OEF) is a United States combat operation involving some coalition partners and currently operating primarily in the eastern and southern parts of the country along the Pakistan border. Approximately 28,300 U.S. troops are in OEF.

The second operation is the International Security Assistance Force (ISAF), which was established by the UN Security Council at the end of December 2001 to secure Kabul and the surrounding areas. NATO assumed control of ISAF in 2003. By July 23, 2009, ISAF had around 64,500 troops from 42 countries, with NATO members providing the core of the force. The United States has approximately 29,950 troops in ISAF.

The U.S. and the UK led the aerial bombing campaign, with ground forces supplied primarily by the Afghan Northern Alliance. In 2002, American, British and Canadian infantry were committed, along with special forces from several allied nations including Australia. Later, NATO troops were added.

The initial attack removed the Taliban from power, but Taliban forces have since regained some strength. The war has been less successful in achieving the goal of restricting al-Qaeda’s movement than anticipated. Since 2006, Afghanistan has seen threats to its stability from increased Taliban-led insurgent activity, record-high levels of illegal drug production, and a fragile government with limited control outside of Kabul. (Wikipedia)

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The quickest way of ending a war is to lose it.
George Orwell (1903 – 1950)
, Polemic, May 1946, “Second Thoughts on James Burnham”

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I don’t propose to comment on the Afghanistan war save to say that  many (I include myself)  believe that  President Bush and Tony Blair made an error in the Iraq war. This war has different values and purposes, and while I am shocked by  the way our government has prosecuted this war, apparently – if the papers are to believed – in terms of equipment, I support, unequivocally,  soldiers from all countries who are engaged against the Taleban,  who are proving to be more resistant to modern technology and force than many might have imagined.  I add this thoughtful  quotation…. by John F  Kennedy  “The wave of the future is not the conquest of the world by a single dogmatic creed but the liberation of the diverse energies of free nations and free men.” Are these just words… hot air?

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I would also add these two from George W Bush ….. just to counterbalance reason… (1) “I’ve been to war. I’ve raised twins. If I had a choice, I’d rather go to war.” (2)  “No, I know all the war rhetoric, but it’s all aimed at achieving peace.”

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I end my part of this section of this Blawg Review with a post by a good friend and fellow tweeter/blawger  @Oedipus_Lex, who served in the British Army.   This post is worth reading because it deals with “a” reality of war and peace.  Please take a look : 9/11 – Where I was

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In a series of posts, Lyle Denniston analyzed the issues and contentions concerning the status of the detainees at the Bagram facility in Afghanistan. He writes: “For almost all of the time it has been in office,  the Obama Administration has held to the position that the Supreme Court’s ruling in 2008 giving some terrorism suspects a right to challenge their detention by the U.S. military does not apply, in any way, to prisoners being detained at Bagram air base in Afghanistan — a prison population now said to number more than 600.” The challenge mounted by advocates for those detainees is now before a Court of Appeals and seems likely to make its way to the Supreme Court in the near future.
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Julian Sanchez noted  the disappointment of many on the political Left who had expected that the Obama Administration would scrap many of the Executive Branch powers granted under the PATRIOT Act in the wake of the 9/11 attacks and the start of the ongoing War on Terror. Sanchez writes: “Barack Obama’s justice department has come out in favor of renewing three controversial PATRIOT Act provisions—on face another in a train of disappointments for anyone who’d hoped some of those broad executive branch surveillance powers might depart with the Bush administration. But there is a potential silver lining: In the letter to Sen. Patrick Leahy (D-VT) making the case for renewal, the Justice Department also declares its openness to “modifications” of those provisions designed to provide checks and balances, provided they don’t undermine investigations. While the popular press has always framed the fight as being “supporters” and “opponents” of the PATRIOT Act, the problem with many of the law’s provisions is not that the powers they grant are inherently awful, but that they lack necessary constraints and oversight mechanisms.”
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That’s it… as they say… peace be with you… on this… of all days…..
I nearly forgot… I quite like the smell of Napalm in the morning… Not sure if Colin does… but this just has to go in.
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Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
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