More of an FM Vibe

Not the Steely Dan piece, either.

• There's a pending "controversy" about whether AM radios should continue to be required in cars. Leaving aside the more-than-faint echo of buggywhip manufacturers, there's an interesting irony here. On the one hand, the op-ed "contributor" is affiliated with a relentlessly pseudo-free-market, right-wing-tinged "policy institute" that is extremely friendly to two constituencies that distinctly benefit from AM radio: Right-wing controlled-by-descendants-of-the-founder-without-any-competition Sinclair Broadcasting, and right-wing talk radio shows (especially those west of the Appalachians). Troubling how one's principles can get in the way of loyalty to one's friends and patrons, isn't it?
• Turning to piracy of manga rather than piracy of the airwaves, the District Court in Tokyo imposed a ¥1.7 billion (US$11 million) penalty on a pirate website's operators. This is interesting for two reasons. First, unlike in the US, evading such a penalty through bankruptcy proceedings will be virtually impossible — it's merely complex in the US, but certainly achievable. Second, it's interesting that the court imposed a penalty based not upon "lost profits" but upon "lost revenues" — a measurement almost impossible to achieve in the US, especially given the "long discount" and typical court offsetting of costs avoided. Harlan is cheering the court on from beyond the grave — which rather sounds like a story he might have written…
• That was "just" piracy, not outright fraud. "Fraud" of this nature — given who the "victims" are — has me playing a sad lament on the world's tiniest violin (and wishing that some of the money went to the artists); a little later, that lament will evolve into a folk dance, perhaps even a tarantella. It also has me shaking my head at the primitive-magic aspects of "the original" subscribed to by the denizens of self-proclaimed fine art, and suggesting that the exclusivity of trading only in "the original" is precisely what made the fraud possible… and determined the particular victims.

  It's worth pondering what this scheme might have looked like if we were talking, instead, about "the original manuscript." Leaving aside any editorial contributions — or more than merely "contributions" — a reader gets the same authentic Experience from a mass-market paperback as from the longhand/typewritten/word-processed manuscript. Indeed, the typography and design of a printed edition are almost certainly better, and one can read a printed book on an airplane or holding it in one hand (not to mention e-books).

• A seemingly abstract legal issue also exposes a hypocrisy in litigation (surprise — it's only one of many). Most contracts these days have a forum selection clause, frequently putting the matter in the home court of the more-powerful party. Many publishing contracts require that (serial numbers filed off)

  Any action or proceeding regarding this Agreement or the Work shall be brought solely in the New York courts (state or federal) in New York County.

  or similar language — even for publishers not located in New York. One of the rationales most often stated is that the judges (and lawyers!) in the selected forum are "more familiar with" and even "expert in" the particular kinds of disputes. This, however, contradicts the "generalist judge" and "nonspecialist lawyer" memes of American law practice, and rather exposes the hypocrisy… and not-invented-here syndrome (go ahead and check the Second Circuit's track record in copyright matters before the Supreme Court, and for that matter in Congressional hearings and with the United States Trade Representative, since the 1976 Act came into effect — it's worse than the purportedly out-of-step Ninth Circuit in criminal law and civil rights!). In this, I envy full-bore patent lawyers a bit — at least their appeals are to a specialist court, where the judges more-probably-than-not can accurately pronounce "sphygmomanometer" and "D-lysergic acid diethylamide," not to mention understand the difference between a decimal and a binary megabyte.

• At least rising sea levels won't directly impair Swiss citizens who obtained a ruling that their human rights were violated by government inaction on climate change from the European Court for Human Rights.

Living in the Past

It's not just a Jethro Tull album! And I'm not too old to rock and roll — just too old for the mosh pit. Or dance floor. Or TicketBastard-determined "concert seating."

• Many, many nations distort themselves, their citizenry, and the world at large by living in the past. Ranging from French insistence that the UN Secretary General must speak French (and, for those who point out how common that language is in Africa, it's worth pondering why) to Old Boys at the UK Foreign Office (which was a problem decades ago when I was dealing with them), perhaps the epitome is false nostalgia for the Iron Lady — itself echoing the false nostalgia for Ronald I Over Here.
• And meanwhile, extreme inherited wealth continues to distort matters and lead directly to unseen levels of corruption. Not just politics — neither airplanes nor orchestras have escaped, either directly or just attempting to please aggressive passive investors who are convinced that "having money" means they know how to manage organizations and mice. Which is far less a defense of mice than a rejection of leeches…
• …including misuse of technical terms for marketing purposes. It rather pisses me off, as a chemist (just short of a minor in biology, all those decades ago), to encounter "organic" and "natural" bandied about in organic-chemistry-enabled-nonrecyclable plastic packaging. Benzene is organic (and even largely results from natural processes operating on animals whose diets were, umm, completed millions of years before there was anything artificial to add!). Arsenic and amanita mushrooms are natural. But in an extension of misuse of language to deceive that wouldn't have surprised Orwell, that's not what the "reasonable consumer" understands.

  And let's not get into the class-based and "rural rage"-based misuse of "genetically-modified organisms," either — especially not if there are any AKC-breed-standard German Shepherds in the household, which developed their hip dysplasia tendencies without any help from a laboratory. It's not the method, it's the deployment (which is not a defense of the company that gave its name to my undergraduate chemistry building… almost all of whose inimical strategies have been driven by MBAs and not chemists). The past when those dirty rotten scientists hadn't yet explained mechanisms was not paradise.

"My Dad Can Beat Up Your Little Sister"

…seems to be the theme of A Certain Candidate for Office's attacks on the families of judges who are charged with hearing cases against him. This sort of nonsense has several unsavoury aspects:

• If there's a response — whether by the actual target (the judge) or merely the stated one (the family member(s) named in the attacks) — that will be used by That Candidate's counsel, with dubious ethics, and That Candidate's apparatchiks, who couldn't spell "ethics" except perhaps as "зтика" (sorry, I'm rusty), as shrieking and ultimately irrelevant grounds for a recusal motion against the judge.
• If there's no response, the worst of the apparatchiks and assorted hangers-on will take that as irrefutable proof of the truthiness of the attacks.
• Regardless of the response, it will prove that That Candidate, and especially That Candidate's dad, has/had far more money. Regardless of the legality of that money (irony alert — that's precisely what more than one of these proceedings concerns).
• It's That Candidate's First Amendment right to say anything he damned well pleases, regardless of its factual foundation. But if anyone else says anything disrespectful — like, say, pointing out that That Candidate is descended from undocumented immigrants — that's a vicious libel that cannot be tolerated. Not to mention the family tradition of dodging the draft…

So go ahead, Certain Candidate. Show us all exactly what a fourth-grade bully looks like, and acts like, and thinks like. When, that is, a fourth-grade bully does any thinking at all.

Misnomer

It's worth pondering the relationship between ends and means, on a day celebrated as "good" after the execution of a dissenter against a domestic theocracy by a foreign occupier. Oh, wait, that's something we just don't do.

• One feature of England's property laws that is buried in the US is the leasehold/freehold distinction. It's far from absent; foreclosures on HOA assessments and condominium fees are just two examples. But there's even less justification in the UK — at least in theory, in the US HOA/COA assessments must be plowed back into infrastructure (or held in reserve for emergency repairs/enhancements to infrastructure). The real fun comes when the various fees are instead siphoned to passive investors interested primarily in other aspects, like "maintaining the character of the neighborhood"… or "improving the character of the residents"…
• Meanwhile — and, again, more visible because it's not buried as deeply — there's the problem of the most obvious undesirable characters in neighborhoods: Those involved in the arts, and perhaps especially in the infrastructure. And by that I most vehemently do not mean art galleries… or music labels… or commercial publishing dominated by passive investors and inherited wealth… Gee, that all sounds very much like the preceding sausage, doesn't it?
• The real commonality is self-declared special-snowflake status for distributors. These behemoths demonstrate that Marx (and Engels) were looking at the wrong group as bad actors: If there's a segment of economic players that inherently abuses the proletariat, it's those who control the means of distribution rather than the means of production. (Of late, except at aircraft manufacturers — but this problem arose when those in charge of distribution rose to power, and you know that's a problem when even Forbes says that "financial geniuses" shouldn't be in charge!) Shooting at the wrong target rather thoroughly undermines one's credibility, for however much/little credibility one might have with better target selection and acquisition. Then there's that pesky problem of defining the "proletariat," who qualifies as a "worker"…
• …especially in nonprofit activities.

An Absence of Humility

Retired Justice Breyer questioned the value of pure "textualism" in interpreting the Constitution. His criticism is, on the one hand, well considered in the sense that legalistic textualism is only one tool in that should be found in an interpreter's toolkit; just as not all of the fasteners of society or government are nails, not all tools should (or can) be hammers. Nonetheless, Justice Breyer is far too generous to the core competence of the writers involved. Even that neglects the unitary/collective writing problem involved in even small-group efforts like appellate decisions, in which not fewer than two and not more than nine individual understandings must be distilled into a single set of words and punctuation.

Consider the textualist distinction between "free persons" and "all other persons" that has since been struck out of the Constitution (after just a few hundred thousand deaths, more maimings and dismemberments, and economic devastation rivaling early-seventeenth-century Germany). It's all too easy to neglect the two obvious intermediate instances… and the less-obvious ones. The text itself identifies one of those two intermediate instances — "excluding Indians not taxed" — and implicates the obvious corollary of Indians who are taxed. (The eighty-years-later "correction" also fails here.) There remain more than a few problems that this text — either the Founding Era or the Fourteenth Amendment — does not resolve precisely because it's so poorly written.

• The mixed-ancestry Indian and non-Indian person who is taxed for some purposes, but not for others — he or she lives on tribal land, but also owns real property in downtown Charleston (regardless of which Charleston), even if only by marriage.
• Proper counting of persons who are in/concerned with more than one state. One could argue that this is a "modern" problem beyond the scope of what the Founders (or Reconstructionists) could be expected to consider — which itself points out problems with purely-textualist interpretation — except that the existence of "seamen" was readily apparent to the Founders, and even in the 1780s there were ferries across the Hudson, Delaware, and Potomac Rivers in routine use.
• Prisoners held away from their habitual residences.
• Noncitizen immigrants and temporary-if-long-term residents.
• The assumption that the number of eligible voters is directly correlated with the number of eligible residents, even leaving aside that the interests of the two groups are sufficiently aligned to be reflected in any vote (just consider the disparate gender effect of the Second War of American Secession!).
• The meaning of "respective numbers" (and whether "counting the whole numbers of persons in each State" reflects the mathematical concept of "whole numbers, that is integers" or mere rejection of ex post status-based reduction to "three-fifths").
• Perhaps most to the point, how any of this language would be understood by a citizen whose first language was not well-educated, upper-middle-class, UK-landowner-designated English… which was already fragmented in terms of Capitalization and the proper puncutation of precatory clauses.

I will not gild the lily further… except to note that the phrase "gild the lily" arises from a misquotation of a Shakespearean play (King John) that was itself not common knowledge even to the educated classes of the Founding or Reconstruction eras, and suggest that that illustration demonstrates the last two points above rather clearly.

Even more disturbingly, we cannot even count on the writing competence of those charged with explaining meaning. Just what does "all deliberate speed" mean, even in the limited context of public elementary and secondary education? (And what do those terms mean, in a society that by half a century later treated postsecondary education as not an occasional option but an essential social construct?). Even the Nine Wise Guys have been unable to ever explain what an "establishment of religion" is; the Lemon "balancing test," for example, never confronted the problem of the dishonest legislator/legislature — a problem that should have been readily apparent to Justices sitting in 1971, in the face of the "all deliberate speed" problem less than two decades old at the time. The rise of first drafts and bench memos being drafted by callow, never-experienced-life-outside-of-academia law clerks, with the process/product influence of the language of early drafts on final products well known to literary scholars and entirely neglected by legal scholars, just further complicates the reliance on language imposed via briefs and oral arguments presented by lawyers interested not in the abstract "what the law is" but the rather more concrete "what interpretation benefits my client's stated-and-perceived interests (regardless of whether that's self-defeating)."

The competence-at-writing problem is a higher-order corollary of the Dunning-Kruger effect, which is usually mischaracterized as concerning persons of low skill levels overestimating their own competence. Actually reading the article, though, demonstrates that this was the product of an experiment designed to determine the existence of any discernable, replicable distinction: By no means is the Dunning-Kruger effect limited to "low skill levels." Consider, as an illustration, the problem of cross-sport competencies, even among undoubted world-class athletes. I'd suggest considering the number of malapropisms uttered by legislators and constitution-drafters, but do I really need to? Indeed, consider just "all deliberate speed." Or "establishment of religion," or "peaceably to assemble," or "abridging the freedom of speech, or of the press."

My ultimate point here is that the egos of the political classes (and especially, but not only, those purportedly "learned in the law" who are almost always generalists in law) reinforce the Dunning-Kruger effect of their (in)competence at writing even for themselves — let alone for centuries thereafter. One need not consider the at least equally prominent problems of "binding nonparties to compromise language," "evolution of language no matter what form of 'textualism' or 'originalism' is at issue," and "linguistic divide-by-zero errors originating before 'zero' was a concept imported from another culture." Those are just the writing-related problems; the difficulties in failures of imagination — is a TikTok video, or a disappearing SMS message, a "writing" for purposes of the Fourth Amendment? how does aerospace warfare fit into the Constitutional budget-horizon clauses? is a "well-regulated militia" an arm of the state, a paramilitary force not imagined in the eighteenth century, or something else? — and of externally-imposed changes like "binding international humanitarian law" transmute purely textualist arguments into egotistical sophistry.

Textualism, as the legal profession has altered the term itself, is a tool. I'd really rather that our judges, legislators, and executive branches not become tools themselves (that begins with "t" which graphically resembles "f"…).

Poisoning iPads in the Park

Spring is here
Spring is here
Life is skittles
And life is beer…

Oh, it's not Spring until next week? Can't tell that from the non-Seattle weather today, although there's no need for air conditioning.

• I'll start off with something noncontroversial, like potential enforcement of civil rights in the courts and doing away with consent searches because they don't work and they're discriminatory. I think this is something I've commented on before (although these days, none of my best friends are white men in suits).

  OK, I lied. That's not noncontroversial at all. It bloody well should be, but it isn't.

• Ed Burke remains a lawyer — as a convicted felon who spent decades abusing his office (among other white-collar offenses), he's now qualified to be the Governor of the State of Illinois. At least this time the ARDC actually took recommended action less than a decade after the felony conviction (conviction after impeachment is a felony, especially when it's all but unanimous as it was for Blago). So, so sad that the elected State Supreme Court couldn't get a nonconflicted quorum to deal with another elected official. That's a big hint about both "state regulation of lawyers" and "elected judiciary"…
• For a slightly one-sided (and dismissive of some critical historical context) but nonetheless vastly more perceptive view of one barrier to peace in the Levant: The Palestinian population is only treated as "Arabic" when it's politically advantageous. We won't get into the outright racism and bigotry behind the Balfour Declaration — the flip side, in which the white Christian European powers broke up the Ottoman Empire for their own advantage (and to get the Jews out of town a century ago, too!). Oops, I just did…

  This set of complications is one reason I don't favor a two-state solution, with some version of the Radcliffe Line (<SARCASM> which has led to no problems whatsoever in the last 75 years </SARCASM>). I favor a zero-state solution; once outside powers draw lines based on religion and/or "race," failed states are inevitable in the fairly near future.

• Sometimes Ikea isn't just about swearing at the assembly instructions. Now that may seem of little interest to authors (at least not once they've put together that new desk, which is still necessary even in the age of e-book reference libraries), but it really does — especially regarding bullying by markholders. <SARCASM> But creative people don't need to worry about that at all (PDF). </SARCASM>
• Speaking of "big box stores," thought, consider the plight of the all-'murikan department store. Schade (especially given the history of union-busting, consumer deception and other unfair trade practices, and insider looting).

Semicivilized Platter in the Wurst Way

Sometimes life 🦉 interferes at the sausage factory, and then one needs to throw out a bunch of spoiled stuff. Unfortunately, as it's election season (for eight more months, which is part of the problem), the news is going to look primarily like spoiled sausage ingredients for a while, and since the point of "sausages" is preserving the dodgier bits of dead animals…

• …perhaps more than anything else the spoilage concerns "monetizing content." The obvious connection is the EU's imposition of rules making techbro darlings slightly less insulated from accountability than organized crime, but only slightly in the context of companies with market valuations making this fine a rounding error in the account books. Just like purported nonprofit shenanigans, though, this is not going to trickle down to authors and other creators of "content." Some people are actively destreaming (and the article neglects the biggest reason to rely on offline storage like DVDs: loss of, and eyebrow-raising moralistic restrictions on, access — that is, misuse of the concept of "licensing" and silently converting "access" to "one-time admission fee," rejecting the very concept of the "personal, long-term library" in a way I find intolerable).
• Of course, it could be worse. It is, and one need not consider whether female psychopaths somehow get starring roles in purported informative speeches that have devolved to partisan spectacles in my lifetime or misuse of anecdotes isolated from context as sub rosa, post hoc rationalizations of outright bigotry. (One need not wield a knife and cackle in a TikTok video to be a psychopath. I'm not claiming to perform a diagnosis; I'm using the term in its wider, nontechnical sense — like asserting that "Stalin was a psychopath" despite his, umm, delegation skills.) There are disturbing connections to tyranny and to "political bias" (for any value thereof) in "generative AI" systems lurking in there, too.
• Returning to "not going to trickle down to creators," consider vanity presses hiding their nature. Once upon a time, perhaps even PW would have refused to publicize this crap: It's dressier language, but it still requires authors to (a) have spare financial capital to contribute in addition to the same intellectual-property capital they've always contributed, meaning that Undesireables — especially meaning those without the Right Ethnicity, the Right Private Educations, and the Right Passive/Preaccumulated Wealth — will not be welcome, (b) trust that these highly-experienced commercial-publishing figures can drag their heads out of the rampant financial (and other) mistakes embedded in commercial publishing and its distribution model(s), and (c) going beyond mere "mistakes," that whatever royalty statements do get issued will be timely and honest, under the stewardship of people who know only a culture of people dependant upon untimely and dishonest. (Really: 90 days to account and another 30 or more to pay, together with the "reserve against returns"???)

  Once upon a time, United Artists purported to outmaneuver the moguls (for the benefit of on-screen talent and "filmmakers"… but excluding screenwriters, musicians, cinematographers, animators, and the predecessors of "special-effects" creators in a rather intense bit of foreshadowing). It didn't take all that long for the moguls to take over, though. This time, they're in on the ground floor, converting their post-IP-creation labor into equity interests in that IP. And during the history of UA, it was neither more nor less abusive or dishonest about complying with payments to the "talent" than the rest of the film industry. Unfortunately, it's very difficult to provide citations, because the disputes didn't generate nonconfidential, publicly-accessible records very often — and still don't.

• But that thread pulled out from the snarl is all ready to snap right back in when the compensation at issue is the dubious mixture of power and survival under tyrannical governments. Loyalty is no panacaea, either; eventually, artistic truth speaks not necessarily directly to, but certainly inconsistently with, power, and perhaps even moreso when the "power" appears as generational conflicts purportedly "resolved" by The Law (and use of the definite article there is intentionally inaccurate). If there's one thing that the literary-theory wars from the 1960s through 1990s should have taught us, it's that Orwell's aphorism that "[t]he opinion that art should have nothing to do with politics is itself a political attitude" applies equally to "nonartistic" texts — and not just to the writer, but the interpreter, who is after all engaging in "writing" him/her/theirself. This is one area in which law devoutly and intentionally distinguishes itself from anything resembling reality — and, worse, proclaims that a virtue.

Literacy Barriers

It's been ten days now, so I think I'm sufficiently calmed down to not bring shame and disgrace on the legal profession with excessively intemperate comments on a recent decision. Frankly, the combination of the decision and circumstances leading to it does that all by itself. Before I go any farther, though:

disclosure: The following discussion concerns a litigant and law firm, but not specific counsel, with whom I have had prior unpleasant dealings in other contexts. No names have been changed to protect the SOBs; and I'd be really, really pissed off anyway.

The United States Court of Appeals for the Federal Circuit has just rather definitively demonstrated why, and how, one cannot meaningfully delegate regulation of attorney conduct entirely to courts. And this really is about ethics; there were sanctions at issue.

On 16 February, the CAFC issued two precedential determinations in a dispute regarding a telecommunications/information-transmission patent. The substantive decision (PDF) is somewhat interesting, somewhat overtechnical as to both the law and the subject matter, and doesn't on its face concern attorney misconduct or ethics.¹ But, simultaneously, the CAFC issued a precedential order regarding

show[ing] cause why Counsel/Appellee should not be sanctioned for attempting to incorporate by reference multiple pages of argument from the brief in one case into another.

Promptu Sys. Corp. v. Comcast Cable Comms., llc, No. 2022–1093 (Order Discharging OSC) (Fed. Cir. 16 Feb 2024), slip op. at 2. As the Court continued thereafter:

We have repeatedly held that incorporating argument by reference “cannot be used to exceed word count.” Microsoft Corp. v. DataTern, Inc., 755 F.3d 899, 910 (Fed. Cir. 2014); see also Medtronic, Inc. v. Teleflex Life Sciences Ltd., 86 F.4th 902, 906–07 (Fed. Cir. 2023). It is “fundamentally unfair to allow a party to use incorporation to exceed word count.” Microsoft, 755 F.3d at 910. That is exactly what would have occurred here had Appellee been allowed to incorporate by reference almost 2,000 words from a brief in a separate case—exceeding the total word count for its response brief in case 22-1093 by more than 1,300 words.

•  •  •  •

Counsel argued that he and Appellee were unaware of our decision in Microsoft until Appellant’s Reply Brief was filed, Show Cause Br. at 3, and had they been aware, they would not have included the incorporation by reference, id. at 4. Microsoft is not only a precedential decision of this Court, but a precedential decision of this Court that admonished the exact same law firm before us now for the exact same behavior. We accept as true Counsel’s claim that he was not aware of the Microsoft decision until the Reply Brief referenced it. When it becomes apparent that a lawyer has violated a court rule, as an officer of the court, it would be best for that lawyer to bring it to the court’s attention and withdraw the improper argument. Here, Appellee was made aware of our case law, but chose to do nothing.

Id., slip op. at 2–3 (hyperlinks added).

So why does this matter? Here, I'm afraid, the CAFC made a critical rhetorical error: It failed to cite the rule establishing the word-count limitation. Federal appellate briefs are limited to 13,000 words (Fed. R. App. Proc. 32(a)(7)(B)(i) (as amended 01 Dec. 2019). Editorially, this is too little, especially in fact-intensive circumstances like patent disputes; but, just like the speed of light and 1970s-gas-saving-55mph, whether it's a good idea is not at issue — it's the law.² Indeed, the CAFC cites only to a different rule, regarding "incorporation by reference." Instead, it should have cited both…

…but that would have made the fundamental error and misconduct by experienced counsel at a "white shoe" law firm that had been the subject of one of the precedential opinions rejecting this litigation conduct unavoidably obvious.³ It wasn't just erroneous briefing conduct, but the claimed ignorance.

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.

Mod. R. Prof. Cond. 1.1.⁴ I submit that "reading the rules of the court to which one is submitting a brief," and further "reading prior opinions admonishing one's own law firm regarding the rules of the court to which one is submitting a brief," falls so far within the core of "legal knowledge, skill, thoroughness[,] and preparation" that it is not subject to question.

But this leads directly to the much-more-serious, second-order/collateral damage implication. Why would an experienced appellate attorney be "unaware" of prohibitions on cross-references?⁵ Worse yet, why did no one on the team bring the matter to this attorney's attention? Surely some associate was tasked to double-check quirks; that would, after all, be at least 0.3 or 0.4 billable hours! Leaving aside my dark suspicions (see the disclosure at the top), this points directly to why regulation of attorney conduct cannot be delegated completely to courts. Courts do not have the authority, power, ability, or motivation to change law firm culture — especially not when it extends across multiple firms and the entire billing-culture meme. Those 0.3 or 0.4 billable hours would have been challenged by the client; and, due to "billable hours" pressures across all of "big law" (and especially at white-shoe firms like the one involved here) the associate would instead scurry off trying to bill 2600 hours⁶ in a way that wouldn't be challenged.

But all of that is inference — astoundingly irritated inference from subject-matter knowledge (but not detailed factual investigation) that required a week to tone this screed down to the point that it wouldn't damage your monitor/phone. It also implicates, a bit, the "there but for the grace of [insert deity] go I" problem with specific judges being responsible for regulating the conduct of attorneys they've seen before and will see again — because even when the conduct smacks the judge in the face, there's still that "familiarity" issue.⁷

This will not be the last time. Guaranteed.

---

1. OK, at a different level, maybe it is. But it didn't involve an order to show cause regarding sanctions, "just" errors in claim construction by the trial court that proved outcome-determinative below. <SARCASM> There's no possibility of misconduct at all. By anyone… not excluding the attorneys who prosecuted a patent concerning "speech recognition services to a collection of users over a network that supports cable television and/or video delivery." Id., slip op. at 2, quoting U.S. Pat. No. 7047196.</SARCASM>

   And as a further editorial comment, I wish that all judicial opinions regarding patent validity would state the effective date of the application, which would clarify what law(s) might apply… and, to those who actually know the respective fields, just exactly how dubious the assertions of what the "prior art" and "inventive motivation" might have been. Both go directly to the credibility of the opinions, and in particular to ensuring that those who are potentially regulated can understand the law's requirements. This would require no change in law; it would require only that the courts add even a single parenthetical like "(App. Feb. 16, 2001)".

2. Which, upon motion, can be increased if a particular matter requires it and counsel can persuasively articulate specific reasons (not just "I'm arrogant, verbose, and will gladly talk the ears off all the corn in Iowa," because that's rather the default in BigLaw). The dockets in these four appeals do not, however, disclose any such motion. Perhaps no such motion was made because courts, both federal and state, express reluctance to grant them; the gander, however, remains unsauced given the verbosity of many judicial opinions (which are not written under the kinds of deadlines imposed on the appellate lawyers). To only slightly mangle a phrase, "Regulated speech-length for thee but not for me."

   The irony that counsel may have been incentivized to find another way to incorporate more verbiage by the 2019 reduction in word count for a principal brief — from 14,000 to 13,000 (and the Federal Circuit here notes that it was a "2,000 word" incorporation by reference that would have exceeded the "old" rule by about 300 words, slip op. at 2) — also bears some other consideration. Maybe, just maybe, that reduction was a bad idea, especially since it (needlessly IMNSHO) encourages both inadequate detail in the "statement of facts" and "statement of the case" and, well, shenanigans like this.

3. This is not the first time this shark has encountered "palpable ignorance as a rationale to avoid sanctions" protestations from white-shoe law firms. One of the individual miscreants in one of those incidents continues to give continuing legal education presentations on the underlying issue(s) and has been frequently quoted in the not-precisely-proprietary-but-definitely-not-generally-available "legal newspapers" on this subject. It reflects a fundamental problem with legal ethics: The standards are too low, and lawyers tend to live down to them. Even — perhaps especially — purported leaders of the profession.
4. This rule is substantively identical in the relevant jurisdictions (DC, New York, and Virginia). I've quoted the ABA "model" version because it's substantively identical everywhere else, too.
5. Or, for that matter, a "sophisticated" client, and in particular this one, which has an in-house legal department with a metric boatload of lawyers and has had thousands of federal appellate briefs submitted on its behalf — hell, it has had at least twenty appellate briefs submitted on its behalf to this court since the Microsoft decision in 2014, several relating not to this patent but to the subject matter of this patent (voice recognition systems and implementation). Inferring client knowledge and approval is not unwarranted, albeit at this stage neither supported nor refuted by evidence… which would probably be undiscoverable as privileged anyway.
6. For those doing the math at home, that's not 2600 hours worked during the year, but billed — that is, billing out 50 hours a week directly to clients. Time spent in firm meetings, and doing recruiting and interviewing of prospective hires, and getting continuing education, and doing general-awareness reading, and researching a matter only to discover a conflict preventing any representation buried in the research, and doing pro bono work… don't count. The reason that big-firm lawyers shrivel up to ash if struck by sunlight is that the time spent exposed to sunlight isn't billable. Plus, ya know, the whole vampire thing.
7. One might well question exactly how 28 U.S.C. § 455(b)(1) does, or should, apply when what's under consideration is not "a party" but "a party's lawyer's in-court conduct." Here, I think there's an infinitely-reflexive self-awareness problem warned against extensively in my first profession and entirely ignored in my second. "Trust, but verify" requires that "verification" both occur… and be independent and credible. Not to mention that "trust" be credible in the first instance (we are dealing with lawyers here…).

Cliffdiving

I almost don't know which judicial outrage to excoriate today. I think I'll choose the more inflammatory one; there's a conflagration in the foothills of the first mountain:

One night as you sleep in your goose-feather bed
We will be kneeling at your bedside
We'll pray for your soul like the good Lord said
Let all be forgiven, let none be denied

Then one night as you sleep in your goose-feather bed
We will be standing at your bedside
Your bones will be broken and your blood will be shed
Your eyes will be taken and your hands will be tied

Then we'll take you to the forest
Where none will hear your cry
And we'll cut down the sycamore and broom
And it's there we will forgive you
And it's there we'll watch you die
Like a dancing silhouette against the moon

And you will burn, you will burn
We will purify your soul in the fire, in the fire
And your spirit will live forever
It will rise, it will rise
From the ashes and the embers in your eyes, in your eyes
And your spirit will live forever

Praise the Lord
Another soul is saved
Praise the Lord
Praise the Lord

Steeleye Span, "You Will Burn" (1996) (ironically, the songwriter has remarked that he envisioned the song's victim as probably a midwife…).

I might be tempted to file a judicial and/or legal ethics charge against the dominionist cretin who would impose his religious and archly theocratic vision on everyone (PDF, jump to page 26). Leaving aside that I have nothing to do with Alabama (I haven't in nearly 20 years), and thus have no standing, consider who would ultimately rule upon and be responsible for enforcing any opinion regarding the judicial and/or legal ethics errors present here: These very justices. How fast can you say "institutionalized conflict of interest"? And how fast after that can you say "losing battle"?

Even the dissent deserves precious little credit. It desperately tries to argue with the legalisms that came from the dominionist premise of both the majority opinion and Chief Justice Parker's concurrence without engaging with those premises at all… or the fundamental problem that the science of IVF is very much against those premises. <SARCASM> But that would be importing knowledge and methods of reasoning beyond judicial competence, so that would be inappropriate. </SARCASM>

Perhaps the Alabama Supreme Court needs to consider a document of undoubted supremacy to its own amended state constitution:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

U.S. Const. Art. VI ¶ 3 (emphasis added). If you can't be required to be a dominionist as a qualification for office, that rather denies dominionism as a legitimate and overriding policy preference, doesn't it?

Y'all have failed the allowable test, sirrahs, and made yourselves look worse than the Mississippi judiciary (and that takes some real effort).

Unmedicated Link Sausage Platter

I'm afraid that medication for back spasms does not make for timely posting of the sausages, so some of these have perhaps been in the smokehouse a bit longer than optimal. That, however, may make some of their other ingredients slightly less noticeable.

• As I remarked during the first iteration of this meme (a few weeks ago), it's really too bad that nobody noticed that reading is sexy during my misspent youth (a couple decades before this internet-thingy), when I was found as often as possible in my natural habitat: The library.
• Even then, I was pondering "Lucas is such an incoherent klutz in interviews, I wonder if he used a ghostwriter, especially since the Star Wars novelization is a lot better written than the movie?" As it turns out, I was onto something. Which leads to a rather interesting trademark-law and consumer-protection-law question: Does failing to accurately identify the author of a published work result in overt misrepresentation of the origin of goods placed in the stream of commerce, especially in those instances in which the purported source had virtually nothing to do with the content passed off as originating with that source? <SARCASM> I'm not aware of more than a few dozen specific instances covered by privilege, NDAs, or any other enforceable confidentiality requirements that implicate this problem, why do you ask? Let me give you a Glomar response in advance… </SARCASM>
• Speaking of being at the edge of matters, consider copyright liability for CDN providers to overt/admitted/proud pirates. For those of you who object that this is just European nonsense, consider that it's a logical consequence of Grokster (especially as extended and reinforced in Global-Tech Appliances) that, primarily for procedural and insufficient-resources reasons, has seldom been raised in the US. The key point is that the European Cloudflare opinion, as did the US Grokster and Global-Tech Appliances opinions, rejects a willful-ignorance defense.
• The truism that art is political is hard to deny; as Orwell noted,

  [N]o book is genuinely free from political bias. The opinion that art should have nothing to do with politics is itself a political attitude.

  Why I Write (1946) (BlueBook-approved typography, but not quotation rules, just to piss off ignorant pedants). However, Orwell and Ms Agarwal are talking about something that is an intersection, not a congruence — because they mean slightly different things by "political." Although in common parlance "political" often includes "partisan," and "tribalist," and "identity-group selective," the specific interests of those last three often do not qualify as "political" in the sense that Orwell was reaching for (especially as one reads the rest of his works, and in particular his works after he began working for the BBC… "original public meaning" be damned). It's a useful intersection; what it is not, however, is one capable of infinite extension.

• That is perhaps most apparent in considering recent problems with peer review, which could be misleadingly asserted to arise from "political" issues when they far, far more often originate in failure of scientific detachment — especially when that failure is incentivized by tasty, tasty grant money. And tenure driven by numeric publication measures. And undisclosed conflicts of interest that are supposed to be eliminated by perfect scientific detachment but aren't (because humans are involved and therefore "perfect" is unachievable).
• But this all revolves around contempt. The distinguished EP Thompson identified one kind, contempt for working classes among their "betters". That's just one example of contempt for the Other — ethnicity, race, religion, the hands-versus-minds problem, old money versus not, whatever. It's rather like SiriusXM's contempt for its customers expressed in junk fees publicly rationalized as "music royalties" that just don't seem to make their way to musicians or composers in the amounts asserted… or, for that matter, in the amounts assessed (and assessable). It's also rather like the institutionalized contempt of land ownership, reflected in calling only property arising from land ownership "real."
• The purpose of the permitting process for protests outside the forthcoming Democratic National Convention is not to create disorder, but to preserve disorder. Think there'll be a New Chicago Seven trial thereafter? "Poor People's Army" sounds a lot more militant and dangerous than "Students for a Democratic Society"…

The Weird Stuff

Time plods when you're waiting for weird stuff. I finally have enough weird stuff to fill the platter.

• Took a little trip today to a suburb, to the library and a grocery story. Out in the parking lot, some MAGAts (in uniform — white skin, red hats, election buttons, and dubious shaving jobs) were leafletting against a tax measure with a set-aside for low-income housing. The surprise came as I went into the grocery store, to the expected "oldies station" background music, and the moment I picked up the basket this piece began playing. I got a lot of weird looks from customers because I was snickering for the next four and a half minutes…
• That was amusing, but not as amusing as "smart toothbrushes" getting compromised and used in a DDOS attack. Really? WTF? The "convenience" of a toothbrush that will order (full-retail-price-from-the-manufacturer) toothbrush heads well before they're actually worn out? Or, more to the point, a "smart" pencil sharpener for those few who still use pencils? Or even a "smart" TV with voice recognition compromised into an all-hearing listening device… wait a minute…
• Sometimes the weird stuff, though, has real-world consequences — like the increasing prevalence of scientific papers withdrawn due to scientific fraud. <SARCASM> It's a good thing this doesn't apply to judicial opinions; how many precalculus-level errors can you find in establishing policy based on "B > PL," or reliance on the centuries-old views of a notoriously misogynistic judge who believed in witches to determine the scope and weight of women's rights today? (I get to ask these questions because the few readers of this blawg are unusually perceptive — and I won't be arguing anything before those two courts in the forseeable future.) </SARCASM>
• Speaking of real-world consequences, though, the mind boggles at the concept of turf wars at the International Criminal Court — not between the ICC and another court or a nation that doesn't want to comply, but at the court itself. And those consequence may let war criminals skate. So this is a rather pissed-off invocation of weirdness…

It Was Twenty Years Ago Today…

That AOL had to potentially pay (sorry, it doesn't scan, but this is the 'net after all in an infinitely-reflexive inquiry). It's still good law, as much because it's civil procedure as it is copyright law or law (hah!) of the 'net: If you're required to establish a contact point and take steps to ensure you don't have to deal with people using the published contact point, you don't get any benefit of having provided the contact point. That's a hint to online providers who provide only FormMail-like web interfaces for making complaints about IP and unfair-competition infringments: You'd better actually read things that come in, even if it's inconvenient (or inconsistent with your ideology) inappropriate to respond, let alone do anything.

Internet law that remains citeable, and is cited, two decades later.

ETA (17 Feb 2024) This was a scheduled post that the "scheduling" system glitched for unknown reasons. So sorry, "technical difficulties" not yet resolved (this is a manual force-post). I will refrain from commenting on the irony, because if you don't get it immediately it'll take about 500 words to unwrap — by which time it will no longer have any hint of amusement, only of pedantry.