Lowering the Bar

JUSTICE THOMAS SPEAKS DURING ORAL ARGUMENT [Updated With Actual Words]

Multiple sources are now reporting that U.S. Supreme Court Justice Clarence Thomas has uttered several words during oral argument.

This is news because it is the first time he has spoken during an oral-argument session since February 22, 2006.

Exactly what Thomas said is not clear, and may never be. According to the official transcript (via the Huffington Post), Thomas's words were not all captured by the court reporter:

Witnesses and experts immediately began to speculate as to what Thomas had said, and why it might have been funny.

The words were delivered during argument in Boyer v. Louisiana, in which the Court is considering whether the state's failure to pay for a lawyer for an indigent defendant facing the death penalty undermined his right to a speedy trial. Justice Scalia asked the state's attorney whether the defendant's lawyers were qualified—in this context, clearly a softball question. Upon being told one went to Yale and another went to Harvard, Scalia responded, "Son of a gun," obviously impressed by these facts that he already knew.

And then Thomas spoke:

Well -- he did not --

Laughter allegedly followed.

According to one who was present, "Thomas might have cracked, 'That's not effective counsel.' But hard to hear." A SCOTUSblog reporter tweeted: "Thomas, J. (Yale, JD), speaks: funny at argument—Yale degree could mean lawyer is incompetent, not competent, capital trial counsel."

This interpretation is consistent with the context, except for one thing: Thomas more likely wisecracked that a Harvard degree, not a Yale degree, would not necessarily establish competency—Thomas himself went to Yale, and although I believe he has criticized his own alma mater, his statement also followed a reference to Harvard, not Yale. Either Thomas's comic timing is way off, or he was making a joke at Harvard's expense. By all accounts, Thomas is in fact funny, so the latter interpretation is more consistent with this evidence.

Of course, it is well-known that neither Scalia nor Thomas are all that comfortable with this kind of interpretation, preferring to stick strictly to the official text. Applying that standard, then according to the only evidence we have, Justice Thomas said only "Well -- he did not --", after which the audience laughed at him for being so rusty after seven years of silence. I guess we'll never know, although the recording may shed some light on the matter when it's released.

Justice Sotomayor followed this with a question about whether the state defines "constitutionally adequate counsel" as "anybody who's graduated from Harvard [or] Yale"? This too was reportedly followed by laughter, but it turned out to be a "serious question." Wow, major buzz kill to return the discussion to the issue whether somebody facing the death penalty is entitled to competent counsel. But I didn't want to forget to mention that the answer to that question will be news, too.

U.S. Pat. No. 430,388: The Crooked Baseball Bat

The inventor continued:

The object of my invention is to provide a ball-bat which shall produce a rotary or spinning motion of the ball in its flight to a higher degree than is possible with any present known form of ball-bat, and thus to make it more difficult to catch the ball, or, if caught, to hold it....

With these said results, owing to the peculiar form of my bat, the game becomes more difficult to play, and therefore much more interesting and exciting....

I think the fact that this didn't catch on is a mixed bag. I'm all for making baseball more exciting, but—contrary to another claim in the patent—this surely would make games even longer.

From Ptak Science Books, via Boing Boing.

Lawyer Offers Dream Job: You Pay to Watch Him Work

The legal job market is tough right now, and a lot of new lawyers are doing unpaid internships in order to get experience until things improve. But I wasn't aware that the profession had sunk low enough that we would ask unemployed lawyers to pay us for the chance to work, or even just to follow us around and watch us work (click to enlarge):

The person who posted this on Craigslist may be an excellent attorney in some ways—I really have no idea. But it looks like one thing he won't be able to teach you is how to write.

Most of those are self-explanatory, I think. I also missed one in the headline—unless he's targeting one particular lawyer-in-training, that should probably be plural.

This is setting aside the fact that the message as a whole isn't clear because it doesn't explain just what this arrangement is (let alone how much the lucky winner will pay for the privilege). Watching a more experienced lawyer work is one way that new lawyers learn practical skills, it's true. But how many people is he going to reverse-hire? Is he planning to take a large gaggle of new attorneys along to a real-estate closing? (Is there anything to be learned at a real-estate closing, other than where to sign?) More importantly, this seems to say that the interns (workers? customers?) will at some point actually be doing work for the attorney, not just observing. Do they pay for that too? (Maybe the "general office operations" they'll be learning about include payroll, since they'll be paying their boss every month.) And the whole "referral fees" thing at the end sounds a little sketchy.

Another thing: he states that "once [you are] admitted to the bar, the goal is to have you handling matters with and eventually without supervision." That generally is the goal in this business, so I don't really see that as a selling point.

Anyway, even if you feel it might be worth your while to pay a monthly fee to watch this guy do his thing, please look away quickly if he tries to show you something he's written. Nobody should have to see apostrophes abused like this.

What Do You Call An Album Released Solely to Extend Copyright Protection?

This:

According to the report, the European Union passed a law last year extending copyright protection from 50 to 70 years, but only for works published before the original 50-year term expired. Hence the rapid publication of this, obviously without spending too much time on the cover art.

The report says Sony has released only 100 of the collections (I'm assuming that's the minimum number of copies to get the extension), and they now appear to be going for about $1,500 each on eBay.

Scooby Doo, Where Are You? More Importantly, Where Are Your Pants?

From the police blotter, Fremont, California, January 8, 2013:

IH # 13002139 Suspicious Circumstance 

At approximately 4:25 a.m., witnesses called to report a suspicious male running through the parking lot of Lucky's on the 38400 block of Mowry Ave. They initially described him as a male not wearing pants or possibly just underpants and wearing a "Scooby Doo" or bear type head mask. Officer Sanchez and Officer Gilfoy arrive shortly after and contact a 47 year old adult male behind the Huddle who was in fact, wearing a "Scooby Doo" head mask, dog leash and light colored pants. He stated that he had recently lost weight and wanted to show off his new body. The subject was released.

This is the sort of thing you'd expect from Fred, not Scooby.

Although, come to think of it, when they all gathered to pull off his mask and dramatically reveal his identity, as I'm sure they did, maybe it turned out to be Fred after all.

Gang of Smurfs Facing Assault Charges

Police in Melbourne say they believe the four Smurf impostors, three of whom are seen below in a 7-Eleven security-cam photo, assaulted a man about 1 a.m. on December 16 after first asking him for a cigarette.

A quick search did not uncover any Smurf-related events in Melbourne on that date, so (1) the reason for the Smurfage remains unknown to me, and (2) it may be difficult for the defendants to argue mistaken identity. (This older report features a video clip—it dates back to December, when police were still claiming that the Smurfs were only being sought as material witnesses.)

I also couldn't find any existing bands named "Gang of Smurfs," so I would highly recommend somebody jump on that.

UPDATE: No, You Can't Carpool With a Corporation

In a development that shocked no one, including him, Jonathan Frieman did not prevail yesterday in Marin County Superior Court. As I mentioned earlier, Frieman argues that he was not "alone" in his car when using the carpool-only lane, for which he was ticketed in October, because he had corporate papers sitting on the passenger seat. If corporations are "people," he says, then there were two people in the car.

It wasn't just good luck that Frieman happened to have picked up a corporation that day, possibly some raggedy-ass Internet startup hitching a ride into SF because they don't allow skateboards on the highway. According to the San Francisco Chronicle, he has been driving around with his papers in the front seat for more than a decade now, constantly hoping to get pulled over while using the carpool lane so he could make this argument. (Note: apparently you may be able to get away with this for more than a decade.) Yesterday, the big day finally came.

"The question of personhood is a very poignant one," Frieman said before the hearing, misusing the word "poignant." "Corporations have grown into large, huge, fictional entities. Now I am taking their power," he continued, misusing the phrase "taking their power," "and using it in order to drive in the carpool [lane]."

As that suggests, Frieman's goal is to publicly call corporate power into question, which he did, not so much to avoid the fine, which he didn't. Pointing out that the goal of the law is to reduce traffic congestion, the hearing officer ruled that sharing a ride with corporate papers does not achieve that, and so Frieman and Frieman's Friend, Inc. (actually a nonprofit called "JoMiJo Foundation"), did not have the right to be in the carpool lane.

Not the tie of a man expecting to win
(Photo: Michael Short/SF Chronicle)

Frieman also had to concede that the corporation was not wearing its seatbelt, which is required under California law. "Would you buckle up your imaginary friend?" he asked. "That's what corporations are." Yes, but that torpedoes his own (theoretical) legal argument that if imaginary friends count as "people" for some legal purposes (see, e.g., Citizens United) then they must count as "people" for all purposes. If that's true, some wise guy suggested, then his friend needed to be wearing its corporate seatbelt.

Actually, maybe not. Strictly speaking, California's mandatory seatbelt law would apply regardless of the answer regarding corporate personhood: "A person shall not operate a motor vehicle on a highway unless that person and all passengers 16 years of age or over are properly restrained by a safety belt." Cal. Veh. Code § 27315(d)(1) (stupid emphasis added). Clearly, "passengers" must be restrained whether or not they are "people," so if corporations could be passengers in California then they would have to wear seatbelts. But in this case, JoMiJo was incorporated in 1999 and so is less than 16 years old. That would ordinarily trigger section 27360.5, which requires drivers to ensure that someone between 8 and 16 is wearing a seatbelt, but that section uses the phrase "child or ward," not "person" or "passenger." To my knowledge, no one argues corporations are "children" or legal wards, so I would argue that Frieman didn't need to make sure his friend was strapped in.

I realize he did not get a ticket for that. I just offer it for future reference.

In a final non-shocking development, Frieman said he would appeal.

Can You Carpool With a Corporation?

No.

On Monday, January 7, Jonathan Frieman will be paying $478 for the chance to test out his argument that if corporations are "people," he ought to be able to carpool with one. Actually, the $478 is how much he'll be paying after he loses—I guess you could say that it's free to give it a try, which Frieman did in October in Marin County by driving in Highway 101's carpool lane. The officer who stopped him thought he was alone, but Frieman explained that he had a set of corporate papers in his car, and corporations are legal "persons," so there were actually two "people" in the car, hence no violation.

This is why he will be appearing in court on Monday at 3 pm.

Frieman was cited for violating section 21655.5 of the California Vehicle Code, which states that "[n]o person shall drive a vehicle upon those lanes except in conformity with" the posted instructions. As the California Highway Patrol notes here, pursuant to those instructions it is illegal for vehicles containing only one person to use said lanes except under very specific circumstances, such as outside posted carpooling hours. It is true that, as Frieman argues, section 470 of the Vehicle Code states that "'[p]erson' includes a natural person, firm, copartnership, association, limited liability company, or corporation," hence his argument that he was not the only person in the car.

Unfortunately, section 100 notes that the definitions that follow are to govern interpretation "unless the provision or context otherwise requires." Here, of course, to consider a corporate entity to be a "person" in the HOV lane would defeat the purpose, which is to reduce the number of cars on the road. When a corporation can drive itself to work, this will be a valid argument. 

The same principle defeats another argument to which the Highway Patrol page above also refers:

I'm pregnant. The HOV lane requires two persons in a vehicle. Now that I'm eating for two, can I use this lane?

California law requires that in order to utilize the HOV lane, there must be two (or, if posted, three) separate individuals occupying seats in a vehicle. Until your "passenger" is capable of riding in his or her own seat, you cannot count them.

As you may recall, this is a previous Brilliant Argument that also failed, despite what seems like a significantly more plausible argument that one's embryo and/or fetus could also be considered a "person" for this purpose. (Note: "More plausible" in this case still does not equal "good.") Again, when fetuses drive, then they can be counted for HOV purposes. (I don't know whether young children count. As is so often the case, they shouldn't.)

Another problem is that even if corporations could otherwise be considered people for HOV purposes, a corporation is not located where its paperwork happens to be at any given time, but rather (for most purposes) where its main office and leadership are located. I don't know what corporation was involved here, so I guess it's possible that in this case, that location was also "in the front seat of Jonathan Frieman's car," but otherwise this may also be an issue on Monday.

It won't surprise you to learn that Frieman has an ulterior motive here, which is (most likely) to get publicity for his objection to the U.S. Supreme Court's decision in Citizens United, which held that because corporations have First Amendment rights, their political spending cannot be restricted. The legal argument doesn't work simply because a corporation could be a "person" for one purpose but not another—it's a made-up entity that has whatever rights we choose to give it. Frieman (and his lawyer, and his public-relations firm) almost certainly realizes that, and if he is willing to pay $478 (which he will) for some otherwise free publicity, well, goal achieved.

The report linked above also makes the good point that if a corporation can be a person for Vehicle Code purposes, it needed to be wearing a seat belt. So I hope that paperwork was strapped in.

FYI, in researching this post I also noticed that section 21662 of the Vehicle Code provides that "[t]he driver of a motor vehicle traveling through defiles or canyons or upon mountain highways shall hold the motor vehicle under control at all times," so if your practice has been to hop in the back seat and take a nap or otherwise allow your vehicle to careen out of control while driving on narrow mountain roads, you need to stop doing that because it is illegal.

Hipster Infestation Not "Emergency," Say Police

I think we can all agree this is a serious problem, but it can only be addressed over time, by carefully cultivating the support of the general population. An occasional show of force may be useful for deterrence, and it would certainly be satisfying, but violence is not a long-term solution.

It sounds like the cops were actually pretty understanding and were willing to forgive the guy a few 911 calls to report that hipsters were infiltrating his neighborhood in Williamsburg, New York (although now I see that "a few calls" in this case was 401), but he finally went too far by making two false reports of gang violence. (And at this point, someone apparently recognizes his voice.) The man was arrested after the 403rd call in the past two years.

If the picture that accompanies the report is real, I would at least consider calling in an airstrike. At least on the pants.

Final note: they mean "hipster hordes," not "hipster hoards." Very different things.

One-Armed Man Arrested for Clapping

Still cleaning out the draft folder, and it's worth mentioning this one just for the headline.

It happened in Belarus in 2011, where dinosaurish old-school dictator Alexander Lukashenko was (as he still is) happily oppressing his people and presiding over the collapse of whatever economy remained in the former Soviet state. Lukashenko was elected in 1994 and has been president ever since, having repeatedly won in the kind of elections where the winner gets 93.5 percent of the vote with the remaining 6.5 percent going to his mustache. He has charmingly described his own son as "a useless weakling" and recently told Germany's (openly gay) foreign minister that it was "better to be a dictator than gay." Assuming those to be mutually exclusive categories, then most of his own people would prefer he come out of the closet (and then go into exile). He is a thug.

And so it is not surprising that when public protests broke out in 2011 over the collapsing economy, Thugashenko responded by having thousands arrested for whatever reason or no reason at all. Most of them, according to the Christian Science Monitor, "were fined heavily or jailed for up to 15 days on police court testimony that they were expressing a political opinion by clapping their hands." Activists and protesters there had adopted applause as a symbol of protest, which is brilliant because now that clapping has been associated with dissent, the regime reportedly has had to forbid it at its own events, such as traditional military parades, which must parade along silently. Authoritarian regimes rely heavily on forcing people to play along, and now forced applause is not an option.

I remember a report that at first Lukashenko was quite pleased with what seemed like a big increase in public approval based on the response to his speeches, only to be infuriated later when he learned it was all protest applause. I can't find that report now but would like to believe that's true.

Anyway, once it became clear that clapping was dissent, clappers were rounded up. And like all thuggish regimes this one was not too particular about who it arrested. That included Konstantin Kaplin, who said he was convicted of "applauding in public" despite fairly conclusive evidence of innocence: he's only got one arm. "The judge read out the charges [and] the police affirmed that I was applauding," said the one-armed man. "The judge looked ashamed of herself," he said, but she imposed the fine anyway.

A journalist was also quoted as saying that a mute woman had been charged with "shouting antigovernment slogans," but there was no independent confirmation of that.