The Substantially Similar Weblog

I’ve written twice before about Charles “Cully” Stimson, the Pentagon official who urged corporate clients to boycott law firms representing Guantánamo detainees pro bono. The latest, via the legal tabloid abovethelaw.com, is that Cully has resigned over his remarks, a fitting end to the episode.

Last week I decried a senior Pentagon official’s attack on lawyers providing pro bono representation to Guantánamo detainees. I suggested that villifying the partners of some of the largest firms in the country was probably not the wisest political move, and was likely to backfire.

As it turns out, it appears I was right. See the editorial in this week’s Massachusetts Lawyers Weekly:

…Headlines in print and online were unanimous: “Why Cully Stimson Is Wrong.” “The rightwing assault on the legal system.” “Cully Stimson Should Pick Up His Medal of Freedom and Go Home.” “Law deans respond to unethical Bush lawyer.”

And perhaps the most eloquent rebuke of all came from Harvard Law Professor Charles Fried. In an op-ed that ran in the Wall Street Journal, Fried declared that “Stimson showed ignorance and malice in deploring the pro bono representation of Guantanamo detainees by lawyers in some of the nation’s leading law firms.”

The former Supreme Judicial Court justice continued: “It is no surprise that firms … on Mr. Stimson’s hit list are among the most sought-after by law school graduates, and retain the loyalty and enthusiasm of their partners. They offer their lawyers the profession at its best, and help assure that the rule of law is not just a slogan but a satisfying way of life.”

…What could have been a disaster for the bar turned into an all-out celebration of what lawyers do.

William Patry on Judge Posner visiting Second Life. Unfortunately, I missed the event. I haven’t quite mastered Second Living. It’s hard enough to fit everything that needs to be done in First Life.

There’s a big push in Massachusetts to eliminate the 15 year statute of limitations on child sexual abuse (that runs from the child’s sixteenth birthday)—for example, this Boston Globe article and editorial. Eliminating a criminal statute of limitations is generally a popular cause—after all, the only people negatively impacted would be criminals, and they don’t form much of a lobbying constituency, right?

These articles rarely provide the full reasoning behind statutes of limitations, however. If they address the issue at all, they cite the difficulty of getting a fair trial many years after the events at issue occurred, as in the Globe editorial.

There is a more compelling reason, I think, to preserve the statute of limitations: scarce resources. As with my position on the death penalty, I believe this issue should ultimately be decided pragmatically based on real experience. Prosecutors are terribly overworked. When I represented some indigent criminal defendants, the prosecutors were uniformly younger than me and had no idea what their cases were about until about 30 seconds before they were called to argue (especially in bail hearings). It was all they could do to not drop their two-foot-high stack of files (each representing a criminal case) on their way in and out of the courtroom.

Every case requires resources. Police resources to investigate; prosecutorial and judicial resources to try; and ultimately prison resources if the defendant is convicted. While I understand the need to address past injustices, it seems to me far more important to address current injustices. For every trial relating to sex abuse that may have occurred 25 years ago, there are certainly as many abusers commiting crimes today. If the sex abuser from 25 years ago is still dangerous, he has likely committed more recent crimes for which he could be convicted.

With current funding levels, it is absolutely impossible to pursue every crime committed. Even if we quadrupled funding for the criminal justice system, we are still going to be unable to do a good job catching and convicted all the bad guys. There are at least 250 recent unsolved murders in Boston currently. Necessarily, a choice to pursue sex crimes from 20 years ago is a choice not to pursue something else.

All policy decisions involve trade-offs. Just about everyone is in favor of reducing or eliminating crime and child sex crimes in particular. We can agree on that, but it doesn’t answer the key question of how you do it. Despite the injustice in letting people get away with crimes committed many years ago, it’s a worse injustice to have inadequate resources to deal with crimes committed today.

I wonder how often things like this (“Dear Sir, calling StarForce ‘Anti-copying malware’ is a good enough cause to press charges and that is what our corporate lawyer is busy doing right now”) actually have their desired effect. I suppose it might work in cases where the recipient is actually dumber than the writer.

On the plus side, that sort of letter could certainly create declaratory judgment jurisdiction; the recipient could turn around and sue the sender for a declaration that they have done nothing unlawful.

I also wonder whether companies like StarForce actually have a “corporate lawyer,” and if that person is aware of these emails. I sure hope not.

Update: Apparently this story has been slashdotted. I try not to post about things that also appear on slashdot, on the theory that most people will have seen the story somewhere else at that point, but this entry went up before the slashdot article. A commenter makes a good point, though, that Cory Doctorow (the recipient of the abovementioned threat) is Canadian and lives in London—something the writer of the threat seems to have no clue about.

I learned just last week that my law school professor John Flym was counsel in the Vanguard Case. He testified before the Senate Judiciary Committee on Friday.

It appears that John is also retiring. This will be a great loss for Northeastern Law School. He was one of my favorite professors at Northeastern. Some students didn’t understand his clinical approach, which among other things demanded that we take nothing for granted and rejected easy or prefabicated answers to questions, but I found his teaching to be some of the best preparation for practicing law in the real world.

Right wing critics have predictably attempted to dig up “dirt” to discredit John—e.g., Baseball Crank: LAW: Who Is John Flym?. I don’t mind linking to that entry and increasing its PageRank, however, since I don’t find anything objectionable in the “dirt” the writer has dug up. In fact, it only increases my respect for the man. (He opposes nuclear weapons and torture? How shocking!)

Can we just stop this nonsense about Judges enforcing the law but not “making” it? And that there is such a thing as a non-ideological Supreme Court justice?

Many people have articulated the problem better than I possibly could. But it boils down to this: “the law” is not deterministic. It is, as a practical matter, impossible to enact statutory language that is sufficiently specific to cover every situation that will appear before a court. The reason cases end up in litigation is, quite often, because the law is not clear on what the result should be. Law is not like source code that can be compiled into an object file and then fed arbitrary input to generate a certain predictable result. The real world is complex. Conditions arise over time that the legislators enacting the statute (or the framers drafting the constitution) could not have foreseen. Even if you believe Judges should exercise “restraint,” in many cases it is impossible to determine, objectively, what outcome represents the more “restrained” position. (I think Alito admitted an analogous issue today when he said that conservatives can be as much “activists” as liberals).

People should agree or disagree with Judge Alito’s judicial approach, but it’s absurd to suggest that he doesn’t have an ideology, or that he could sit on the Supreme Court and just apply the law “as it is written” without having to make interpretive leaps. Those leaps will almost always involve issues on which reasonable people can differ — otherwise the case would never have reached the Supreme Court. That is, in fact, the whole point of the Supreme Court.

Semi-surprise of the day: Sandra Day O’Connor announced her resignation from the United States Supreme Court — not William Rehnquist. Unfortunately, this means a swing Justice will likely be replaced by an ultraconservative, if the administration gets its way.

Excellent blog entry at Stay of Execution (“tales of law and life”) entitled Legal Lies. It’s a fairly damning indictment of the advice given to prospective law school applicants.

I feel proud that my alma mater, Northeastern University School of Law, has avoided some of the problems described in the article, and is at least struggling to avoid others. If anyone is ever interested in going to law school and considering Northeastern, drop me a line and I’ll talk you into it.