Hurray for the Holdout Juror

One juror saved Jodi Arias from the death penalty.

According to press accounts, “[the jurors] said they started with about half of the members voting for the death penalty, eventually reached the 11-1 vote then got stuck.”

The holdout juror stuck to her principles. Hurray for her. Nothing wrong with being against the death penalty.
This case would have ended long ago if the prosecution didn’t start to showboat by asking for the death penalty. It’s never worth it.

It is more important to have swift and sure punishment for heinous crimes than the endless round of litigation that ensues whenever the prosecution asks for the death penalty. Asking for the death penalty is always discretionary and more often than not is merely designed to whet the public’s appetite for revenge.

What the United States needs is more courageous jurors like this holdout, a person who was willing to stand by her principles despite being stuck in a room with eleven others who did everything in their power to force her to change her mind. In this case, the holdout juror is the true hero.

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Not so Fast: The Auction of the Joan Anderson Letter

The Associated Press reported this week that a letter written by Neal Cassady to Jack Kerouac in the 1950’s has been found in a small press archive after having been presumptively lost for sixty years. The letter is significant because Kerouac was inspired to change his writing style after which he wrote his best-selling *On the Road*. Interestingly, the first versions of *On the Road* were written in French, Kerouac’s first language. These French versions have not been published so it is impracticable for me to compare them with the English. This would be an interesting task for Kerouac scholars.

Nevertheless, there is a legal issue surrounding the auction. Doesn’t the letter belong to the Kerouac estate? Kerouac gave it to Allen Ginsberg to try to get it published. Ginsberg sent it to a publisher, but lied and said that a friend of his had dropped the letter into the ocean. The letter should have been returned by the publisher, which went out of business. When he sent the letter to the publisher, Ginsberg was acting as agent for Cassady (or himself) and bailee of the physical letter. Speaking as a lawyer, title to the letter never passed out of Kerouac’s hands unless Kerouac gave it or sold it to Ginsberg. Neither scenario is likely. Kerouac complained bitterly in a Paris Review interview that the letter belonged to him and that Ginsberg should have taken better care of it. This suggests that Ginsberg was a bailee or agent.

But Kerouac did not own all the rights to the letter. The contents of the letter will be the property of the Cassady estate. Cassady had at least one grandchild, so there very well could be living relatives. So the right of publication would be held by Cassady’s heirs. Lest you think that this is insignificant, James Joyce’s heirs prevented many scholars from publishing his letters for years. And a biography which used J.D. Salinger’s letters to Joyce Maynard was forced to redact those letters. The physical letters were put up for auction though, because they belonged to Ms. Maynard. They were purchased by Peter Norton (of Norton Utilities fame, there’s more of a California connection for you) who then gave them back to Salinger. So while Salinger controlled publication, he did not control the physical letters.  If Cassidy had no heirs, conceivably Mexican law would apply because he died in Mexico. Was he domiciled there? Was Cassady domiciled anywhere? Property that is owned by a person who dies without heirs is escheated to the state of the deceased’s domicile. But states in the United States cannot hold copyright, at least in the 11th Circuit. If that is the case, the letter would enter the public domain.

A writer  who submits a manuscript to a publisher does not surrender ownership of that manuscript to the publishing company absent a specific agreement to the contrary. The fact that the letter was found in the publishing company’s archives does not divest the Kerouac estate of ownership. The passage of time might affect ownership claims, but the letter was believed to have been lost, mainly because Alan Ginsberg lied. Ginsberg was said to have retracted the lie in the 1990’s, but no one has been able to find evidence of the retraction. So the passage of time, commonly called the statute of limitations, would begin to run from the public announcement that the letter had been found.

Complicating matters is the convoluted history of the Kerouac estate. An objective observer might well conclude that Kerouac’s now-deceased daughter Jan was defrauded through the creation of a fraudulent will by Stella Kerouac, and after her death, her family. Whether this letter is covered by the terms of the decision denying Jan Kerouac’s claim, I don’t know.  I don’t know if Stella’s heirs have been good literary executors or not. But large amounts of money attract lawyers like vultures to carrion. I have no doubt that as I write this, the Kerouac estate’s lawyer’s are carefully considering their options. They may wait until the auction is completed before attempting to seize the money raised.

I’m a little rusty as to some of these points, but I sense that there is a legal case here unless the parties have already reached tentative agreements.

Update: The San Francisco Chronicle reported today (December 7) that the Kerouac Estate is seeking possession of the letter. Here’s my response to one of the commenters:

I think it is clear that the sheets of paper on auction are a letter. Copyright law then tells us that the author of the words the letter contains holds the copyright. This issue came up in the auction of J.D. Salinger’s letters to Joyce Maynard. Salinger prevented anyone from duplicating the letters, though Joyce had a right to sell them at auction, and did so (they were purchased by Peter Norton–of Norton Utilities–who then returned them to Salinger). So the Cassady Estate holds the right of duplication and I don’t think anyone seriously is disputing this. As to the rights of the illegitimate children, keep in mind that legitimacy has not prevented a child from inheriting from a parent for a very long time in the United States. They are treated the same. However, whether they have been recognized as heirs is something else. I have no idea.

The idea that the letter was a manuscript is a stretch at best. Certainly the act of an agent in submitting a manuscript to a publisher, absent a contract, does not vest ownership in the publisher. Such a submission is an “offer.”  The offer was not accepted. The publisher did nothing. Hence, no contract was created and the publisher obtained no rights to the manuscript under contract law. But the matter is not that simple. Apparently the publisher’s files were thrown into the trash. This means that they became abandoned property under California law. Ownership of abandoned property will vest in accordance with the provisions of the California Civil Code and could pretermit Kerouac’s Estate’s rights. Complicating matters is the fact that a forged will was used to vest the heirs of the Kerouac Estate with Estate property. I think the probate  case was settled in Florida after a Florida court determined that the will from Kerouac’s mother to his wife was a forgery, but that settlement may or may not bind the California court for a variety of legal reasons. The issue of that forged will could well be re-litigated.

But no matter what happens to the physical sheets of paper, the Casssady Estate holds copyright and thus the right to publication.

Obama and Honey Boo Boo

From this month’s Vanity Fair:

Honey Boo Boo “trends” in the same way that Barack Obama “trends.” There’s no difference between the two.

A Few Poetry Recommendations

There are a few interesing things being done with poetry. James Merrill’s The Changing Light at Sandover is incredible. Start with the first part, the Book of Ephraim. Merrill claimed that the poems were dictated by spirits he contacted through a Ouija board. Craig Raines elegy on the death of his lover is another book-length poem well worth a read. Unfortunately, it has the same title as Proust (A la recherche…) and so is hard to find unless you mention Craig. Going back a bit, there’s Nathaniel Tarn. Ted Berrigan’s Tambourine Life. After the 1960’s poetry was sidelined, but it’s always been there.

Spanish Time and The Third Reich

Even today there are surprising vestiges of the Third Reich which survive. The persistence of relatively innocuous Nazi-era laws is the subject of frequent comment in Germany, but somewhat more surprising is the issue of time in Spain. Fascism was a force which swept Europe in the 1930’s. More than one country fell victim. Portugal, Spain, Italy, Germany, Hungary, Romania, Turkey and others heeded the call of a government led by a king-like individual. In Spain, the Republican government had solid popular support and only fell to Franco because of assistance from the Reich. Most feel that without this assistance, Franco would have died an obscure general. In gratitude, and to align his country closer with Berlin, Franco moved Spanish time one hour ahead of GMT. To be on the same time as England was no longer seen as a virtue. Portugal’s dictator decreed that his country would do the same. Hitler came and went, but Spanish time even today remains one hour ahead of GMT. Even Portugal eventually abandoned the change. Though the Reich is no more, Spain marks its hours as if a red, white and black flag still flew over the German state.

What’s up with English? (New Murakami Novel)

Many European languages have already seen the publication of the translation of Murakami’s latest novel. I can start reading the Spanish version today but I have to wait eight months for the release of the text in English. 

Why is that?

English is almost universally taught in Japanese schools. There are many, many people who are bilingual in Japanese and English. There are even more who do not consider themselves bilingual because of rusty conversational skills yet read and write English with no problem whatsoever. You would think then, that English translation would be the first translation achieved. For better or for worse, it is the most commonly used world second language.

Translation into the world’s top five languages should not just be a priority, it should be easier than for lesser-spoken languages for the simple reason that there is a greater statistical chance of finding a competent Japanese translator into that language. 

Since Spanish is one of the world’s top five most spoken languages, it is no surprise that there is already a translation ready. 

Some languages are “book devouring”.  That is, there is a great hunger for books in that language. French is one example that comes to mind. While there are many more Arabic speakers than French, more books are printed in France in a month than in the Arabic-speaking world in a year. So that might explain the lack of an Arabic translation and the existence of a French translation.

Publishing a work in what a country deems a “minority” language might be the reason for a political delay to await translation into the dominant tongue. But there do not appear to be any political issues with respect to a translation into English.

Could there be legal issues? If say, a British publisher were to claim that it had North American rights this could slow down or halt release of a work while the squabbling went on in the courts. 

Or is something else going on? I read that the English version of 1Q84 has 25,000 fewer words than the Japanese version. Putting aside the concept of “word” as it applies to East Asian languages, this is a novella-sized chunk of text that is missing from the English. Given that Murakami is a translator himself, is he taking an active role in the English translation, a role so active as to constitute a partial revision of the text? This would certainly explain the delay. If Murakami is indeed so involved, then it would be worthwhile to wait for the English version. Otherwise, the Spanish version (or the French, or the German, or the [fill in blank]) is just as good, for after all, none of these languages can measure up to reading the text in the original Japanese with all of its nuances. 

American Workers don’t Save Enough for Retirement

Reuters: http://www.reuters.com/article/2014/01/13/us-retirement-freelance-idUSBREA0C0NK20140113

If you’re working as a freelancer, there will be months–sometimes several–where you have no income, and then months when there is. If you’re in a good month, do you put money away for retirement or for the lean months? The reason why there was been a rush towards self-employment is because of a combination of the decline of American industry and a national fetish towards outsourcing. For many years, taxicab drivers were employees of cab companies with regular paychecks and contributing to Social Security. Now most are independent contractors. How much do you think they are able to save? And meanwhile, service has gone south. From the perspective of the American worker, the economic system is paycheck based. Take away the paycheck and inevitably you get the results highlighted in this article.

Availability of U.S. Case Law

A researcher at Stanford compiled a database of U.S. case law. The database can be found at: http://webpolicy.org/category/empirical-law/legal-data/. Here are my comments.

Not so long ago, this collection would have been priceless. 10-15 years ago there was an article in Wired about efforts to obtain access to case law, which was pretty much locked down by West Publishing and Lexis/Nexis. So a few comments:

1) To make this set usable from a practical point of view you have to know when it starts and finishes. “[E]very federal court ruling” is a bold statement. Federal Reporter Third? All 1000 volumes of F2d? What about the original Federal Reporter? F.Supp.? Not all federal district court decisions are published. Since our federal courts have become criminal courts (starting in the 1980’s) most of the written decisions will be at the appellate level. What about “Do Not Publish” opinions? There are thousands of them and they are still useful. Usually only DoJ has copies.

2) Not having everything is not critical to the practical value of the set. In the 1990’s a West salesman would tell you that there was no need to buy anything before 500 F2d if you were trying to put together a small federal library. For most states they would try to sell you everything, except perhaps New York, California and few others. The issue is updating. Florida updates (or used to) its appellate decisions on a monthly basis. You could sign up and they would send you a zip file every month. I don’t know if all states do this. The problem of recency is a major one. A case could have been decided yesterday but you won’t find out about it for a month. You can fix the problem on appeal–theoretically, assuming a client who wants to pay–because judges will not, except in rare cases, revisit older decisions they have made because case law that was not available at the time was dispositive.

3. The issue of citing to a particular page of a decision in addition to the official citation is not a huge problem. In many states, appellate decisions are relatively short and court rules have provided for the use of just the official citation. Cites to new Westlaw and Lexis cases do not have page numbers. When page numbers are unavailable, you can cite them as ( U.S. )(2014) [my Blue Book syntax is probably a little off here). If you cite an unpublished opinion you normally have to provide the judge and your counterparty a copy of the decision.

4. FLITE was the U.S. Air Force’s effort to computerize case law in the 1980’s. Westlaw and Lexis fought ferociously to prevent this database from being released to the public. They were successful. The same is the case with JURIS, a DoJ caselaw database. Now there are several providers (such as Fastcase) which compete with Westlaw and Juris. Access to PACER, the U.S. courts database of case, is limited. Efforts to mass download the database have been frustrated. The courts use PACER as a revenue tool. Also, criminal cases at the district court level are not on PACER (unless this has changed) supposedly to protect informants. So it would be interesting to know how this database was obtained.

5. Putting aside the practical value of this database, once the extent of the content is established, it could have real value for researchers. Could it be used to spot trends in the law? I wonder what might be shown if tools to measure things like historical market performance were used to analyze the database. You could see all sorts of data points for terms like “Dalkon Shield” or “asbestos” occurring within specific time ranges. There is definitely a “me too” aspect to the law. And while judges make law all the time, they have no control (usually) over the cases brought to them. Do cases involving “terrorists” match the pattern of cases involving “communists”? Or, say in the period 1910-1920, “Germans”? On a practical level, what is the statistical incidence of cases involving the Statute of Frauds? The “ancient document” exception to the hearsay rule? Are criminal conversation causes of action really coming back? If historically the incidence of data points A, then B always led to C can an analysis of such points today of any use in predicting future decisions?
Just a few thoughts.

Meanwhile in Saudi Arabia

 

The Kingdom expelled roughly 150,000 illegal workers in November, 2013. “Illegal” in this context means that the worker in question entered the country legally and in many cases, switched jobs after his first employer failed to pay him. The true guilty parties here are Saudis who permitted their names to be used to sponsor foreign workers when they had no jobs for them as well as those employers who had no problem confiscating their employees’ passports while failing to pay their just wages. Keep in mind that the Qu’ran requires an employee to be paid before the sweat on his brow dries.

The Kingdom is also gearing up several major construction projects, including the capital’s first subway. Where the workers will come from for these massive public works is unknown. The book, Saudi Labor Law Outline contains an analysis as well as translations of Saudi labor laws, including the new Domestic Servants Law.

What a Judge

 

At common law a lawyer was not considered as essential for the defendant in a criminal trial because it was the judge’s job to insure that the defendant was afforded due process. Things have changed, of course, and now the sooner a person lawyers up the better.

Sometimes the old ways are the better ways. In the United Arab Emirates, Judge Maher Salama Al-Mahdi makes sure that the defendants who appear before him are in fact guilty. With his investigative powers he seeks out evidence of innocence. This he says, is the norm in Dubai.

When was the last time you heard of an American judge who sought to prove the innocence of a criminal defendant?