Free Book of the Month: Alexis de Tocqueville's Democracy In America

Each month Fastcase hosts a book (as a PDF document) that has fallen out of copyright for your legal reading delight. This month we bring you Alexis de Tocqueville, a French observer and critic of American democracy. Below are some quotes taken from the text:

"The greatness of America lies not in being more enlightened than any other nation, but rather in her ability to repair her faults."

"There is hardly a political question in the United States which does not sooner or later turn into a judicial one."

“Americans are so enamored of equality that they would rather be equal in slavery than unequal in freedom.”

Read the entire publication below:

Alexis de Tocqueville: Democracy In America (PDF)

The Economist Podcast: Larry Lessig On Creative Commons

Late last week Larry Lessig spoke with the Economist about copyright laws and his role in starting up the creative commons movement.

Check our his podcast here or review other programs from the Economist Podcasts directory in iTunes. (Because not everyone uses iTunes, we are hosting the podcast for a limited time on speedyshare.) Happy listening!

World of Warcraft Takes the Battle to the Courtroom

Blizzard Entertainment, the maker of the infamously addictive online gaming universe, The World of Warcraft, is suing a man who created a Bot, known as the MMO Glider, which can automate gameplay in the program. According to the BBC, Blizzard has accused the MMO Glider program of violating WoW's terms of service disrupting gameplay for actual human users. The two parties disagree over whether the software infringes on the copyright of The World of Warcraft. While Michael Donnelly, creator of the MMO Glider, maintains that no copy of the game code is ever made by his Bot, Blizzard Entertainment contends that the Bot copies the game into RAM to avoid detection.

MMO Glider FAQs

Quotable Quotes: Abraham Lincoln

“The best way to get a bad law repealed is to enforce it strictly.”

Abraham Lincoln

Brighter Days Ahead for Judges in Pakistan

The newly elected Prime Minister of Pakistan, Yusuf Raza Gillani, has already taken steps to liberalize the government's treatment of Pakistan's lawyers and judges, despite the fact that he has not yet been sworn into power. Gillani, a member of the Pakistan People's Party (PPP), was a strong supporter of Benazir Bhutto and is a leader in the political opposition to President Pervez Musharraf.


In his acceptance speech following his nomination, Gillani stated his intention to immediately free the legal professionals and political prisoners that Musharraf had placed under house arrest after attempts to declare his presidency unconstitutional. Pakistani officials moved quickly to release the judges, including former Chief Justice Iftikhar Chaudhry, beginning Gillani's political program before he has even taken office.


Gillani also plans to facilitate a UN investigation into the assassination of Benazir Bhutto, whose family contends that Musharraf's administration had a hand in her death.

Court Dismisses Soldier's Appeal over Fahrenheit 9/11

The U.S. Court of Appeals for the First Circuit ruled this week to dismiss the appeal (Fastcase users click for case) of Peter Damon, a former sergeant in the U.S. Army who had sued Michael Moore for libel after Moore used an interview that Damon gave to NBC in the anti-war documentary Fahrenheit 9/11. Damon argued that the way in which Moore used the interview, in which Damon discussed his Iraq war injuries and treatment at Walter Reed Medical Center, portrayed him as against the war and critical of the Commander in Chief.

Typically, courts deciding libel suits must judge whether the statement in question could lead "a reasonable [viewer] to conclude that it conveyed a defamatory meaning." But, Damon argued, as a pro-war veteran active in the armed forces community, the definition of a "reasonable viewer" must be adapted to his personal surroundings.

Nevertheless, the court said that in the context of how his interview was used:

". . . there is no way for a reasonable viewer to construe Damon as supporting Moore's 'agenda.' Neither may it be reasonably construed as a statement promoting disloyalty or denouncing either the Commander-in-Chief or the medical treatment received by veterans."

Click for the WSJ Law Blog Story

If Damon gave the interview and Michael Moore had permission from NBC to use the footage, should Damon have a cause of action for what he perceives as distortion of his words? Does libel really cover this cause of action, or is another legal theory better suited to this case?

Feel free to post alternatives in the comments.

“Au Clair de la Lune” ... Listen To The Oldest Recorded Song

Édouard-Léon Scott de Martinville invented the original method of phonographic recording in 1860, almost a full two decades before Edision had his patent established for the Phonograph. The machine was dubbed the phonautograph and could record sounds but was not intended to play them back. Scott was more interested in creating archive of the visual representation of songs and human speech. After Edison patented the Phonograph, Scott protested the credit and patent given to him and stated " What are the rights of the discoverer versus the improver?” Scott also felt that Edison had been appropriating or, in less kind words, stealing his methods. The ultimate goal of phonographic technology should be "writing speech," not reproducing sounds according to Scott.

While Scott may have intended this as a non playable visual archive, some researchers working out of the Lawrence Berkeley National Laboratory in Berkeley, California have developed a method of playback for these phonautographic records. Check out the first recorded song below, coming in almost three decades prior to the 1888 recording of Handel's choir at The Crystal Palace.


Listen To The First Recorded Song: Au Clair de la Lune (Before The RIAA Shuts it Down)

Policing Good Manners in Japan

In the Japanese city of Yokohama, having bad manners will land you more than a scolding from your mother; the city is currently recuiting police to patrol the the its public transportation system to enforce polite behavior. The dichotomy between Japan's traditional values and the wilder younger generations has grown greater, from refusals to give up seats for the elderly to poor cell phone etiquette. The BBC reports that fully 90% of Japanese people polled believe that "public behavior" has declined. While the police brigade, known as the Smile-Manner Squadron, has no legal powers of enforcement, they hope to inspire better etiquette in public places by setting a good example and correcting rude behavior.

NY Passenger Bill of Rights Struck Down

As if weary travelers needed more bad news: the U.S. Court of Appeals for the Second Circuit ruled this week that New York's Airline Passenger Bill of Rights (PBR) violates the Supremacy Clause of the United States Constitution, reversing an earlier decision against the ATA. The court argued that airline regulations could only be enacted by the federal government, preventing a patchwork of state-specific laws that would inevitably lead to confusion and conflict. However, the court did not hesitate to comment on the real need to protect the rights of passengers, stating:

"Although the goals of the PBR are laudable and the circumstances motivating its enactment deplorable, only the federal government has the authority to enact such a law."

Those "deplorable conditions" the court spoke of included overflowing airplane lavatories, a lack of food and water, and being stranded on the runways for 10 hours or more. (Anyone in Congress listening? These regs can only be drafted by the federal government? Cue the regulators!)

Lawyer Hornswoggled Twice By His Paralegals

To say Charles Jay Zuckerman has had bad luck with hiring paralegals is an understatement. Two of his paralegals, working at different times, have stolen money from his clients unbeknownst to him. The combined theft totals over$300,000 dollars. Zuckerman has personally repaid all the stolen money back to his clients but this last theft has led to his second suspension from the bar and an end to Zuckerman's private practice. The court found that Zuckerman violated Section 10-306 of the Business Occupations and Professions Article and lacked proper oversight controls for his paralegals.

Read the text of the case here (Fastcase subscription required).

Podcast Discussion On Paralegals

The Legal Talk Network has an interesting podcast on the essential work carried out by paralegals and legal assistants for attorneys. Featured in the discussion are Tita A. Brewster, Current President of the National Association of Legal Assistants (NALA) and Chere Estrin, CEO of Estrin LegalEd with hosts J. Craig Williams and Robert Ambrogi.

Check out the Podcast Here

Court Rules DNC Off the Hook for Florida (For Now...)

The 11th Circuit US Court of Appeals has dismissed a suit brought by Victor DiMaio, a Florida Democrat, against the Democratic National Committee for barring the Florida delegates from the upcoming national convention. The court argued that DiMaio had no standing to sue since the suit was filed in 2007, before primary voting had even taken place, and wrote:

"Since DiMaio's complaint does not allege any actual or imminent injury, nor suggest in any way how that 'injury' could be redressed by a favorable judgment, we are without jurisdiction to entertain the appeal."

However, the judges did suggest that because there was significance to DiMaio's claims, he would have more success filing his complaint again now that he has voted. Despite the prospect of a second challenge, the DNC is happy with the decision, releasing this statement:

"As two U.S. District Courts in Florida have found, and as the Supreme Court has consistently recognized, national political parties have a constitutionally protected right to manage and conduct their own internal affairs, including the enforcement of delegate selection rules."

Click for the 11th Circuit Court of Appeals Opinion.

Judge Demands Explanation on White House E-mails

Judge John Facciola ruled in federal court this week that the White house must explain why the White House should not have to keep a record of all e-mails for the Executive Office of the President. A previous court order revealed that the White House routinely recycles the tapes used for storing e-mails, indicating that years of records may now be irretrievable. In April of 2007, White House Press Secretary Dana Perino admitted that as many as 5 million emails could have been lost.

Vote Like An Athenian

Congress wannabes, here's your chance! A new site allows you to make your voice heard on every piece legislation brought forth by Congress. E-VotingBooth.com allows you to freely view, comment and vote on the current bills up before Congress. The results of the vote are then sent to every legislator and the President before the final vote. This form of direct democracy hearkens back to the Athenian model where all eligible citizens cast votes on the matters at hand, giving each person a significant role in the outcome of what was selected and passed. While participating with E-Votingbooth may not lead to a pure democracy, it will certainly represent a new chance for political participation. (Togas optional.)

Live Audio: Supreme Court Arguments On Right To Bear Arms

For those of you interested in hearing live proceedings of the Supreme Court arguments on the right to bear arms (District of Columbia v. Heller), click on this live audio broadcast brought to you by CNN. (Live as of 1:30 p.m. eastern time). Or check out this live blogging summary of arguments.

With Friends Like These, Who Needs Enemies?

On March 17, the U.S. Supreme Court ruled that an antitrust lawsuit brought by Novell in 2004 against Microsoft may go forward, once again putting the corporation in the glare of antitrust scrutiny. Microsoft had challenged the suit, claiming that the statute of limitations for Novell's complaint had expired. Microsoft also argued that by staying out of the market for operating systems, Novell did not have standing to bring an antitrust case against Microsoft. Nevertheless, the Justices denied Microsoft's request to bar the suit.

Although they are partners now, Novell and Microsoft have a contentious history, especially related to the word processing battles of Word vs. WordPerfect, which was for a time owned by Novell. Novell claims that Microsoft withheld from it technical information about Windows 95 that rendered its WordPerfect program unable to compete with Microsoft Word. One steamy (okay, steamy by software standards) bit of evidence from the suit -- an incriminating email written by Bill Gates:

"I have decided that we should not publish these extensions. We should wait until we have away to do a high level of integration that will be harder for likes of Notes, WordPerfect to achieve, and which will give Office a real advantage. . . . We can't compete with Lotus and WordPerfect/Novell without this."

WordPerfect subsequently lost an enormous share of its market to Word, and Novell has moved on from word processing software to customizing the Linux operating system.

Musicians Demand Their Fair Share

2007 was the year of copyright-infringement lawsuits for the music industry. Universal Music, Warner Music, and EMI all settled with popular music sharing websites for huge sums of money. But, says John Brance, a lawyer for several musical groups:

"Artist managers and lawyers have been wondering for months when their artists will see money from the copyright settlements and how it will be accounted for."

Some groups have threatened their labels with lawsuits, while the producers claim that their legal fees have bled them dry. Artists who do qualify for reimbursement may have a long wait ahead of them, as spokespeople for the various companies have talked up the lengthy and complicated process of determining who should get what.

Client Interaction and Billable Hours ... The New Law School Curriculum?

For years, many practicing lawyers have complained that recent law school graduates were a blank slate -- showing up for work with no real education in either the practice or the business of law. At least one school has a response.

Washington and Lee School of Law has announced a sweeping overhaul of their curriculum which will replace all academic classes with experimental learning during students third year. Some of the revisions include teaching students billable hours, client interaction and other non standard courses. This new academic plan will be launched within three to four years and will not be in the curriculum for current students.

Is replacing the academic law curriculum with more practical or applied lessons a move in the right directions for last year law students? Let us know, in the comments.

Lawyers Release Exculpatory Evidence - After 26-Year Prison Term

While all lawyers must grapple with the delicate balance between their ethical, professional obligations and their moral values, two lawyers, Dale Coventry and Jamie Kunz, have recently revealed how grave the consequences of this choice can be. The two recently brought to light information exonerating Alton Logan, a man who has spent the last 26 years in prison for a murder at a Southside Chicago McDonalds that he did not commit.

When Alton Logan was on trial in 1982, Coventry and Kunz were representing Andrew Wilson, a man arrested for a double homicide who also confessed to his lawyers that he was guilty of the McDonalds murder. The two lawyers were forced to wrestle with a devastating moral dilemma; to bring forward the confession would certainly free an innocent man, but would violate the ethical standard of attorney-client confidentiality, and could have put their own client on death row. After the confession, the attorneys wrote an agreement with Wilson that they could reveal his confession only after his death, and had stayed quiet for 26 long years.

Wilson died this year, and Coventry and Kunz came out with the crucial evidence as promised. Both men say they have felt great remorse over their decision to withhold the confession, but they stand by their decision as the only option they could ethically make. They also stated that had Logan received the death penalty, they would have reconsidered. To this, Logan responds:

"There is no difference between life in prison and a death penalty. None whatsoever. Both are a sentence of death" For more information, see this 60 Minutes interview with the lawyers and Logan. Separately, as Chicago Public Radio points out, there's a question about whether the new evidence will even set Logan free.

Free Fastcase Overview Webinars for The Maryland State Bar Association

Fastcase Training Webinars For MSBA Members

The Maryland State Bar Association and Fastcase are offering online webinars to help MSBA Members boost their online legal research skills on Fastcase. The webinars are free to attend but your normal long distance charge will apply. All seminars are scheduled during "lunch hours" and you do not have to leave your office to attend. If you have questions before the webinar, you can call 1-866 773-2782 or email support@fastcase.com with those questions. In addition, the last 15 minutes of the webinar is devoted solely to a Question and Answer segment.

The seminar will give you an overview of how Fastcase works and how you can use it more effectively in your practice. All Maryland State Bar Association members have a free member benefit that includes access to the Court of Appeals/Supreme Courts of all 50 states, the Federal Circuit Courts, the Maryland Federal District Courts and Maryland Bankruptcy Courts! To register for the overview please click the URL for the date and time that works for you and fill out your information. You will be sent an email confirmation and an email the day of the webinar giving you instructions on how to attend. If you have any questions please contact Fastcase Customer Support at 1-866-773-2782.

Fastcase Overview for the Maryland State Bar Association
Tuesday, April 8, 2008 12:00 PM - 1:00 PM EDT
https://www1.gotomeeting.com/register/110549161

Fastcase Overview for the Maryland State Bar Association
Thursday, April 10, 2008 1:00 PM - 2:00 PM EDT
https://www1.gotomeeting.com/register/695933881

Fastcase Overview for the Maryland State Bar Association
Wednesday, April 16, 2008 12:00 PM - 1:00 PM EDT
https://www1.gotomeeting.com/register/141865638

Fastcase Overview for the Maryland State Bar Association
Wednesday, April 23, 2008 12:30 PM - 1:30 PM EDT
https://www1.gotomeeting.com/register/889682906

Justice Scalia on the Constitution

Speaking at the University of Central Missouri this week, Justice Antonin Scalia spoke out against what he believes to be an increasingly popular trend of treating the Constitution like a "living" document. Scalia stressed that judges should search for orginial intent in the Constitution and curb their appetites for policy-making. The Associated Press quoted Scalia, who quipped:

"The people and their representatives in Congress have realized what the game is, and they want people to rewrite the constitution the way they want it."

A biography of Scalia written by a university professor prompted the justice's visit.

Test for Malingering Creating Controversy in the Courtroom

The Fake Bad Scale, developed by psychologists to weed out so-called malingerers in personal injury suits, has recently earned credibility, and greater popularity in the court room, with an endorsement from the Minnesota Multiphasic Personality Inventory. According to the Wall Street Journal, the Fake Bad Scale has now been used in hundreds of cases to prove that supposed victims are faking their injuries to win damages in court. Some psychologists and plaintiff’s lawyers have voiced opposition to the test, arguing that the test criteria label nearly everyone a malingerer, rendering it a tool of insurance companies. Others have compared the use of the new test in court to the FBI’s now discredited bullet lead analysis, arguing that the test results should not be used as a major factor in deciding a case.

Spam Conviction Upheld by Virginia Supreme Court

Last week the Virginia Supreme Court decided in Jaynes v. Commonwealth to uphold the conviction of Jeremy Jaynes, a North Carolina man arrested for a major spam campaign in 2003. The case is the first felony conviction for spamming in the United States. Jaynes appealed the decision of the lower court (Fastcase subscription required), citing his right to anonymous free speech under the First Amendment and Interstate Commerce Clause of the U.S. Constitution (Jaynes committed his crime in North Carolina, but his spam was distributed through a server in Virginia).

But because Jaynes sent his spam e-mails from phony e-mail addresses in violation of the Federal CAN SPAM Act, and because the content of his e-mails was false and misleading, the court ruled that his actions were not protected speech. The decision was a close 4-3 split; several of the justices expressed concerns that the language of the Virginia anti-spam legislation may be “unconstitutionally overbroad.”