Save Your Work!

This case will probably settle now, yes? Otherwise we're all going to have to reacquaint ourselves with WordPerfect. I'm trying to think of another distinct consumer product (as opposed to a brand or company) that has ever been as dominant in its field and generally ubiquitous as MS Word has been for the last ten years. Maybe Kleenex at some point? The iPod?

Separation Of Powers Is More Interesting Than Charles Nesson*

Adam Gaffin at Universal Hub points us to Judge Gertner's decision today in what will probably be come to known as the Charles Nesson file-sharing case (but for now is just Sony BMG Music Entertainment v. Tenenbaum, D. Mass. No. 07-CV-11446-NG). There's all manner of juiciness in the discussion of Professor Nesson's performance as trial counsel.**

But it's a good indication of the magnitude of my nerditude that I found the following graph on page 35 of the opinion to be way more interesting:

As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges – no implores -- Congress to amend the statute to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood. The injury to the copyright holder may be real, and even substantial, but, under the statute, the record companies do not even have to prove actual damage. “Repeatedly, as new developments have occurred in this country, it has been Congress that has fashioned the new rules that new technology made necessary.” Sony, 464 U.S. at 430-31. It is a responsibility that Congress should not take lightly in the face of this litigation and the thousands of suits like it.

I'm really not all that sure how I feel about Article III judges telling Article I legislators what to do. Though not a huge believer that judicial activism poses a danger to the Republic, I do suppose it's not that far of a leap from telling Congress to change a statute in an opinion to just going ahead and invalidating it yourself. Which, by the way, is the right thing to do if the statute offends core constitutional principles. At least until Marbury v. Madison gets flipped.***

*He might agree with that, by the way.

**Prof. Nesson seems to have represented Judge Gertner before the First Circuit in 1984. See In re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984). Slightly awkward, no?

***You chuckle, but it could happen. You know it could.

Supreme Court Abolishes Michigan Trial Court*

Today, in Michigan v. Fisher, U.S. Supreme Ct. No. 09-91 (pages 11 -18), seven members of the U.S. Supreme Court decided that they were better judges of a police officer's credibility than the trial judge who heard the actual evidence.

The whole thing stems, as is often the case, from a police officer's decision to enter a house without a warrant. The trial court held an evidentiary hearing and found that the officer's belief that someone was inside the house in need of immediate aid to be objectively unreasonable. Six years later, seven judges who sit four hundred miles and three states away -- not one of whom has served as a trial judge -- disagreed. The one justice who *has* presided over any significant number of trials and evidentiary hearings, Justice Sotomayor, dissented.

The majority's rationale is captured in a sentence on the final page of its opinion: "It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here." Justice Stevens dissented (joined, again, by Justice Sotomayor). "[I]t is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind," Justice Stevens wrote. "We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer’s actions, particularly in a case tried in a state court."

It's surprising that there were only two dissenting justices here. I'm ready for just about anything, but a universe in which any five justices can flip a state trial judge's findings of fact that they find disagreeable or contrary "to the needs of law enforcement", that's a bit much even for me.

*Kidding!

So . . . How Was *Your* Fall?

I read some post somewhere by someone I trust and it was about the top five indicators that a blog is fading away. The winner going away was "Posts become infrequent." Uh. Yeah.

Thus begins my attempt to debunk conventional wisdom, subvert the dominant paradigm, and stick it to the man.