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Hurray for the Holdout Juror

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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.


Written by mokane

March 9, 2015 at 6:38 pm

Posted in Uncategorized

Not so Fast: The Auction of the Joan Anderson Letter

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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.

Written by mokane

November 30, 2014 at 9:50 am

Posted in Uncategorized

Availability of U.S. Case Law

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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.

Written by mokane

January 9, 2014 at 4:12 am

Posted in Uncategorized

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Meanwhile in Saudi Arabia

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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.

Written by mokane

December 5, 2013 at 1:09 pm

Posted in Uncategorized

What a Judge

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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?

Written by mokane

December 5, 2013 at 1:08 pm

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All-Savers Certificates and Obamacare

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During the Ford Administration, the government was desperate to halt inflation. When Carter was president, interest rates reached 18%. One of the solutions was the “All Savers” Certificate. The idea was that if more people would save, the banks would have more capital to lend and since the supply of money for lending would increase interest rates would go down. The program didn’t work. Why? Because almost no one signed up.

Thirty years later we have the Affordable Care Act, otherwise known as “Obamacare.” Sign-up for the program was to start in November, 2013, but due to well-publicized technical issues, a mere 15,000 were able to sign up. Now that the technical problems are fixed, another 50,000 have signed up. And this in a country of over 350 million people. I heard one of the senators from Kentucky who helped draft the legislation explain that the senators “assumed” that every State would have an insurance exchange, sort of an online flea market where people could buy insurance. Unfortunately, just as with All-Savers, the assumption was wrong. Half of the States didn’t buy in. Now it comes out that the only way, the only way that the program can work is if droves of healthy young people sign up. The program is counting on them to pay for care for the older uninsureds. People believe that the only issue with the program is a mysterious web problem. It’s not. The whole program is based on false assumptions, not on a glitchy web page. Young people aren’t signing up. With three weeks left in the year, less than 100,000 people have signed up nationwide. More people bought All-Savers.

The sad thing is that the U.S. already has institutions which could address these issues. Expanding Medicaid is the obvious choice. “Oh but you can’t do that,” they say. Why not leave the design of the horse to a committee and hope we don’t get a camel?

Written by mokane

December 5, 2013 at 1:07 pm

Posted in Uncategorized

Solving the Medical Malpractice Crisis

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One of the reasons why health insurance is so expensive in the United States is because of the lack of tort reform. The lawsuit lottery is alive and well and the cost of playing it raises everyone’s costs. I would like to make the modest assertion that I can fix the problem in one day. Fact is, half a day is all I would really need. And I wouldn’t need a single new institution to accomplish these feat. And trial lawyers would be accommodated, would have a role to play in the process and could have no principled basis on which to complain.

Before the 1920’s, a workman injured on the job could not recover compensation from his employer unless he proved his employer was negligent. A great advance of the U.S. legal system was to remove fault from the equation. An injured workman need only show that he was injured on the job. He would receive medical care and compensation for permanent injury. This system is successfully operating in every single U.S. state.

The solution to the medical malpractice crisis is simple. Take fault out of the equation. Better still, roll over the injured into the workman’s compensation system. In order to recover compensation for his injuries, a patient need only show that he was treated by a physician. There would no longer be any need to prove fault. Compensation would be guaranteed, but would be no more and no less than that compensation afforded to the injured at the workplace. There are already administrative tribunals in place to handle the cases—and lawyers have a role to play at these tribunals. So no med mal lawyer can claim that the adoption of this proposal would take his livelihood away. He can still represent the injured.

The advantage of the system is that wild jury awards and recoveries would disappear. Insurers costs would be fixed. The beauty of this proposal is that it is already working and working well. In every state. On every single day. Should someone who is injured on the job receive more than someone who is injured by a doctor? Why?

We have much to gain by making patients compensation a part of workers compensation.

Written by mokane

December 5, 2013 at 1:07 pm

Posted in Uncategorized