SBM Blog

Sochi: American Lawyers Would Be All Over This

At the Washington Post, "Journalists at Sochi are live-tweeting their hilarious and gross hotel experiences." An example:

My hotel has no water. If restored, the front desk says, "do not use on your face because it contains something very dangerous." #Sochi2014

On topic but unrelated to the law, the cover of The Economist this week is priceless.

Would Amanda Knox Have Been Better Off In The U.S. Criminal Justice System?

The reinstatement of the conviction in Italy of American citizen Amanda Knox for the murder of her roommate while they were students in Perugia prompts Jason Mazzone at Balkinization to ponder her likely fate if the relevant crimes had occurred in the United States and she had been prosecuted in an American court:

Under those circumstances, the most likely place Knox would be today is in prison serving a lengthy sentence. This is because, as is true of the vast majority of criminal defendants facing trial, Knox would have pled guilty pursuant to a plea bargain—in exchange for a reduced sentence or dropped charges or some combination of both. As it is, Knox might well never spend another day in prison and certainly she will not be in a cell anytime soon. From that measure, the Italian criminal justice system probably serves Knox better than would that of the United States.

In the mainstream media, Matthew Dowd at ABC News asks a different provocative question:

What would our decision be if an Italian citizen came to this country, was implicated in a gruesome murder, was convicted by a court and lost ultimately on appeal, and that Italian citizen was now living back in Italy? My guess is many would be demanding this Italian be extradited and sent to prison here so justice would be done. ... What if Knox, instead of being an attractive young white female, was an older rough looking Latino. Would we still hold the same viewpoint that Italy's judicial system is messed up?

Meanwhile, the judge who reinstated the conviction is being criticized by the lawyers for Knox's co-defendant for his statements after the reinstatement, which the lawyers say show prejudice.  Judges in Italian courts do not typically comment on cases before an opinion is published.

Pardon Me, For Living

The Christmas Eve royal pardon for Alan Turing, the mathematician proclaimed as the father of computer science and artificial intelligence, came almost exactly one year after physicist Stephen Hawking and 10 other notable scientists wrote a letter urging the Queen to "formally forgive" Turing for his conviction in 1952 under the law in effect at the time against homosexuality. Turing had pled guilty and submitted to chemical castration. In 1954 he committed suicide.

The royal pardon has been widely praised worldwide. It has also been criticized as too little, too late ("When does Turing get to pardon the Crown?"), and has generated some thoughtful commentary on pardons in general.  One recurring theme is that pardons should be extended to all those convicted under the old law, not just to a single exceptional famous person. Another is that there is nothing, in fact, to "pardon" if a law under which someone has been convicted has been rejected as unjust; in such cases, the act for which someone has been convicted shouldn't be "pardoned," it should be officially erased as a criminal act. The English last year enacted a new law, the Protection of Freedoms Act, that does just that -- provided you are still alive. So those lucky enough to outlive the reconsidered law get better than a pardon, but those who do not may not even get a pardon, unless they have done something extraordinary, like inventing computer science. This New Statesmen piece from July of 2013, urges amending the Protection of Freedoms Act to make it retroactive.

HT: The Dish

A Lawyer Dies

Nelson Mandela, 1918-2013.

Things you can do with a law degree: liberate a nation. Inspire a world through integrity and forgiveness.

Any man or institution that tries to rob me of my dignity will lose.
Read more at http://www.brainyquote.com/quotes/authors/n/nelson_mandela_2.html#uOx2f1MgVUhqtufR.99

Any man or institution that tries to rob me of my dignity will lose.
Read more at http://www.brainyquote.com/quotes/authors/n/nelson_mandela_2.html#uOx2f1MgVUhqtufR.99

Downton Abbey Misses The Trademark Boat To China

Counseling Compliance With The Law: Obamacare and Corporate Responsibility Questions

John Steele at Legal Ethics Forum flags some questions on a lot of lawyers' and bloggers' minds -- what are a lawyer's ethical duties when the lines on compliance with the law are fuzzy? Several bloggers, including WSJ Law Blog and  David Bernstein at Volokh Conspiracy, are writing that the President's announcement that people with health care policies that are not compliant with the Affordable Care Act can keep the policies for another year puts lawyers advising insurance companies and state regulators on the spot. Steele suggests that the facts might make for a good law exam question, reminds his readers of a "classic" article on the subject presenting a hypothetical about pollutant discharges that do not exceed the levels at which agencies are enforcing environmental laws but do exceed the letter of the law, and points to this model rule:

MR 1.2(d): "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law."

Warning: If You Plan To Market Globally, Think Globally

Language Log brings word of a mind-boggling new mascot for the Fukushima Industries Corporation.

The Legal Justification For The Syria Intervention

Jack Goldsmith at Lawfare analyzes the White House counsel's rationale for intervention (e.g., "limiting regional instability and of enforcing the norm against using chemical weapons"), noting that his analysis is subject to change "if and when an official legal opinion emerges in public:" 

[T[his rationale removes any effective limit on the “national interest” prong of OLC’s [Office of Legal Counsel's] (expansive) precedents for presidential military unilateralism.  This rationale appears to entail that the President can use “war at a distance” (drones, cyber, long-range missiles, maybe more) essentially whenever he thinks it important, subject only to the limitation that he cannot go further and put American troops in serious harm’s way (boots on the ground and the like) without congressional approval.

Goldsmith, now a Harvard Law prof, was Assistant Attorney General in the Office of Legal Counsel from 2003–2004, and Special Counsel to the Department of Defense from 2002–2003.

If Malala Yousafzai Applied For Asylum In The U.S.

 National Law Journal has a short, gripping piece that offers insight into the U.S. asylum process and the value of pro bono. It describes the asylum application of a girl whose circumstances were similar to those of Malala Yousafzai, the Pakistani girl shot in the face by Taliban militants for her activism about educating girls in Pakistan. 

Here's the text of Yousahzai's address to the United Nations.

J.K. Rowling, Hypothetically

Despite a huge boost in sales for The Cuckoo's Calling, Harry Potter author J.K. Rowling is none too happy with the disclosure that she, and not the pseudonymous Robert Galbraith, authored the well-reviewed mystery. The news that the wife of one of J.K. Rowling's lawyers was the source of the unauthorized disclosure is an embarrassment for the legal profession but it is also something more. A great law school hypothetical. Claim? Damages? Remedies?