Dearest A,
Democracy rocks even harder when your guy wins the presidency.
We poured into the streets of D.C. last night after the networks called the election for Obama. We danced in the intersection of 14th and U Streets. We marched down 16th Street to the White House. We sang the "Star Spangled Banner." We chanted and cheered and high-fived passersby.
The city yelped with joy until the wee hours of the morning.
I feel blessed to be alive at this moment.
Love,
Sammy
Wednesday, November 5, 2008
Tuesday, November 4, 2008
Election Day!
Dearest A,
I voted a week ago, but it warms my cynical little heart to see so many people standing in line to cast their ballots on election day. Democracy rocks.
Love,
Sammy
I voted a week ago, but it warms my cynical little heart to see so many people standing in line to cast their ballots on election day. Democracy rocks.
Love,
Sammy
Friday, October 31, 2008
Is Palin a Realist?
Dearest A,
Perhaps the Republican vice-presidential candidate has been reading some crit theory in her spare time, but isn't she echoing some left-wing thoughts about the First Amendment here:
"If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations," Palin told host Chris Plante, "then I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media."
Legal realists have a similar theory, arguing that the "marketplace of ideas" is actually a sham because the megaphones wielded by powerful interests -- like the media -- are able to shout down everyone else.
Maybe Georgetown Law should hire her.
Love,
Sammy
Perhaps the Republican vice-presidential candidate has been reading some crit theory in her spare time, but isn't she echoing some left-wing thoughts about the First Amendment here:
"If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations," Palin told host Chris Plante, "then I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media."
Legal realists have a similar theory, arguing that the "marketplace of ideas" is actually a sham because the megaphones wielded by powerful interests -- like the media -- are able to shout down everyone else.
Maybe Georgetown Law should hire her.
Love,
Sammy
Wednesday, October 29, 2008
Why Lawyers Blog
Dearest A,
Andrew Sullivan wrote a very fine essay in The Atlantic the other day -- Why I Blog. It's a paean of sorts to the immediacy of blog-writing: "more free-form, more accident-prone, less formal, more alive. It is, in many ways, writing out loud."
I love this idea. I also wonder if it could possibly apply to lawyers who blog.
Lawyers are diligent and careful creatures, not given to such moments of whim as "writing out loud." To be a very good lawyer, you must read cases over and over to ensure you're interpreting them correctly. You must write over and over to ensure that you're not overstating or misstating or understating concepts. You must think over and over to ensure you've considered every possible consequence of a decision.
This is not easy work. And I wonder if any lawyer can blog effectively without doing all of this reading and writing and thinking. And all this reading and writing and thinking takes time.
So how do we reconcile the nature of lawyers with the nature of blogs?
Much love,
Sammy
Andrew Sullivan wrote a very fine essay in The Atlantic the other day -- Why I Blog. It's a paean of sorts to the immediacy of blog-writing: "more free-form, more accident-prone, less formal, more alive. It is, in many ways, writing out loud."
I love this idea. I also wonder if it could possibly apply to lawyers who blog.
Lawyers are diligent and careful creatures, not given to such moments of whim as "writing out loud." To be a very good lawyer, you must read cases over and over to ensure you're interpreting them correctly. You must write over and over to ensure that you're not overstating or misstating or understating concepts. You must think over and over to ensure you've considered every possible consequence of a decision.
This is not easy work. And I wonder if any lawyer can blog effectively without doing all of this reading and writing and thinking. And all this reading and writing and thinking takes time.
So how do we reconcile the nature of lawyers with the nature of blogs?
Much love,
Sammy
Thursday, October 9, 2008
The Politics of Copyright
Dearest A,
Recent news out of the political world, and the upward polling trends for Barack Obama, have set my heart all aflutter. But there's a legal issue popping up in this election that's also near and dear to me -- copyright law.
Apparently, many, many artists and others are ticked that Sen. McCain is using their music or other creative works in support of his presidential campaign.
This raises an interesting issue: Do any of these folks have a valid copyright infringement claim?
They damned well might. The copyright statute doesn't have any safe havens for uses of a creative work in a political campaign. The copyright law does carve out some "fair uses" that can be made of a creative work, like in news reporting, teaching, or research, but makes no specific mention of campaigns.
The McCain camp has a good argument that its uses qualify as "fair use" generally. Courts look at factors such as whether the use is of a commercial nature when making this determination, but the fact that the McCain campaign is generally "non-commercial" doesn't necessarily save it. First, if these works were used in ads to raise money, then the commercial nature of the use is definitely an issue. Second, a court will also look at how much of the songs the campaigns use, and whether the material they use is really "the heart" of the work -- on both of these questions, McCain's could be in hot water.
All in all, it's probably best if the McCain campaign got licenses to use these songs -- which it seems like they have not done -- rather than litigate these complicated issues in court.
Love,
Sammy
Recent news out of the political world, and the upward polling trends for Barack Obama, have set my heart all aflutter. But there's a legal issue popping up in this election that's also near and dear to me -- copyright law.
Apparently, many, many artists and others are ticked that Sen. McCain is using their music or other creative works in support of his presidential campaign.
This raises an interesting issue: Do any of these folks have a valid copyright infringement claim?
They damned well might. The copyright statute doesn't have any safe havens for uses of a creative work in a political campaign. The copyright law does carve out some "fair uses" that can be made of a creative work, like in news reporting, teaching, or research, but makes no specific mention of campaigns.
The McCain camp has a good argument that its uses qualify as "fair use" generally. Courts look at factors such as whether the use is of a commercial nature when making this determination, but the fact that the McCain campaign is generally "non-commercial" doesn't necessarily save it. First, if these works were used in ads to raise money, then the commercial nature of the use is definitely an issue. Second, a court will also look at how much of the songs the campaigns use, and whether the material they use is really "the heart" of the work -- on both of these questions, McCain's could be in hot water.
All in all, it's probably best if the McCain campaign got licenses to use these songs -- which it seems like they have not done -- rather than litigate these complicated issues in court.
Love,
Sammy
Tuesday, August 12, 2008
Habeas and Sentencing
Dearest A,
A military panel sentenced Salim Hamdan to only 5 1/2 years, a far cry from the 30-to-life asked for by the government.
That means, five months from now, he will have served his sentence.
And there's a very good chance that, five months from now, absolutely nothing will change. Mr. Hamdan will still be held in Guantanamo Bay as an enemy combatant, which the Bush Administration contends gives them the right to hold enemy combatants (i.e. terrorists) until the War on Terror ends (i.e. indefinitely).
Undoubtedly, Mr. Hamdan will then petition the US courts for habeas relief, as nearly every other detainee at Guantanamo Bay has done. Here's my question: does the fact that Mr. Hamdan has served his sentence make his habeas petition stronger?
I say yes. Granted, the justifications for criminal punishment and for holding prisoners of war, or enemy combatants, are markedly different, but they do overlap in one area -- deterrence.
One of the purposes of punishment is to prevent individuals from committing crime, now and in the future. Similarly, countries hold prisoners of war to prevent them from returning to the battlefield. In both cases, the government is attempting to prevent the individual from acting in a way contrary to the government's interests.
By imposing this sentence, a military jury has adjudged Mr. Hamdan's 5 1/2 years in Guantanamo Bay as sufficient punishment for his acts. One of the goals of that punishment is to deter Mr. Hamdan from further supporting terrorism in the future. The government's decision to continue detaining him as an enemy combatant -- because the government believes he might return to his terrorist ways -- is therefore in direct contradiction to the military panel's determination.
Just imagine if a jury sentenced a man to 5 1/2 years in prison, but then the warden refused to let him go because he believed the prisoner was still a danger to society. The warden doesn't get to make that call. Neither should the Department of Defense.
Love,
Sammy
A military panel sentenced Salim Hamdan to only 5 1/2 years, a far cry from the 30-to-life asked for by the government.
That means, five months from now, he will have served his sentence.
And there's a very good chance that, five months from now, absolutely nothing will change. Mr. Hamdan will still be held in Guantanamo Bay as an enemy combatant, which the Bush Administration contends gives them the right to hold enemy combatants (i.e. terrorists) until the War on Terror ends (i.e. indefinitely).
Undoubtedly, Mr. Hamdan will then petition the US courts for habeas relief, as nearly every other detainee at Guantanamo Bay has done. Here's my question: does the fact that Mr. Hamdan has served his sentence make his habeas petition stronger?
I say yes. Granted, the justifications for criminal punishment and for holding prisoners of war, or enemy combatants, are markedly different, but they do overlap in one area -- deterrence.
One of the purposes of punishment is to prevent individuals from committing crime, now and in the future. Similarly, countries hold prisoners of war to prevent them from returning to the battlefield. In both cases, the government is attempting to prevent the individual from acting in a way contrary to the government's interests.
By imposing this sentence, a military jury has adjudged Mr. Hamdan's 5 1/2 years in Guantanamo Bay as sufficient punishment for his acts. One of the goals of that punishment is to deter Mr. Hamdan from further supporting terrorism in the future. The government's decision to continue detaining him as an enemy combatant -- because the government believes he might return to his terrorist ways -- is therefore in direct contradiction to the military panel's determination.
Just imagine if a jury sentenced a man to 5 1/2 years in prison, but then the warden refused to let him go because he believed the prisoner was still a danger to society. The warden doesn't get to make that call. Neither should the Department of Defense.
Love,
Sammy
Thursday, August 7, 2008
Because We Have the Rule of Law, That's Why
Dearest A,
It's taken me a little while, but I've formulated a response to your thoughtful question. Why do we cringe when our jurists act like politicians? Because our whole system of government depends on a belief -- though it may be fictitious -- that judges are impartial.
But it's all a farce, you say? Might makes right, and why pretend any different?
Because the rule of law is a useful fiction, and one that's probably kept our society from tearing itself apart at the seams. Like many others have.
The rule of law is an opiate of the people. It makes citizens believe that something -- other than military muscle -- governs their society. And it makes citizens less likely to turn to armed uprisings as the solution to the problems.
In our society, the guardians of the rule of law are jurists. And if we suddenly lost faith in the neutral application of laws -- if we believed that only might made right, and that judges were part of that system of oppression -- then the fragile ties that bind us together might come undone.
The rule of law is not coherent. It's not reasonable. It's not even really a rule. But a firm belief in it has held our society together for the last 200 years. I think that's a useful purpose, in and of itself.
Love,
Sammy
It's taken me a little while, but I've formulated a response to your thoughtful question. Why do we cringe when our jurists act like politicians? Because our whole system of government depends on a belief -- though it may be fictitious -- that judges are impartial.
But it's all a farce, you say? Might makes right, and why pretend any different?
Because the rule of law is a useful fiction, and one that's probably kept our society from tearing itself apart at the seams. Like many others have.
The rule of law is an opiate of the people. It makes citizens believe that something -- other than military muscle -- governs their society. And it makes citizens less likely to turn to armed uprisings as the solution to the problems.
In our society, the guardians of the rule of law are jurists. And if we suddenly lost faith in the neutral application of laws -- if we believed that only might made right, and that judges were part of that system of oppression -- then the fragile ties that bind us together might come undone.
The rule of law is not coherent. It's not reasonable. It's not even really a rule. But a firm belief in it has held our society together for the last 200 years. I think that's a useful purpose, in and of itself.
Love,
Sammy
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