“Twenty-Something Arrested at Twilight Movie” or “State Law Copyright Enforcement?”

by Jason Fischer

Earlier this month, 22-year-old Samantha Tumpach was arrested exiting a showing of the new douchey-little-vampire-kid movie, The Twilight Saga: New Moon.  No, she wasn’t detained for a psych eval, as anyone over the age of 16 should be for watching that movie.  (The only problem with implementing that policy is that state mental health facilities would be choked with nearly every female American between the ages of 17 and 45 — my sisters, my wife, and all of their friends included.)  It seems that she was arrested because theater employees saw her operating a video recording device (source).  Did the FBI come swooping in to put an end to this flagrant violation of Federal Copyright Law?

No.  It was those champions of copyright policy, the Rosemont Police.  As it turns out, Illinois has a relatively new anti-bootlegging statute, which criminalizes knowingly operating an audiovisual recording device in a movie theater without permission.  See 720 Ill. Comp. Stat. 5/21-10.

Now, don’t get me started about what a moron this woman is.  Clearly, she’s not the brightest crayon in the box, but I’m not sure she should be looking at three years in the state pen for being a moron.  Her conduct can arguably be defended as fair use, avoiding any civil liability for copyright infringement.  Even if it’s not newsworthy to the most of us, the reason that Ms. Tumpach gives for making the recording, i.e., preserving her sister’s birthday activities for posterity, likely does satisfy the first prong of a fair use analysis in her favor.  With a recording that comes in at a whopping four minutes, the amount-and-substantiality factor should go her way as well.  And it isn’t likely that Ms. Tumpach’s video will replace the needs of these screaming Twilight moms to see Jacob’s rippling six pack.

With respect to federal criminal liability, Ms. Tumpach’s activities don’t seem to satisfy those requirements either.  She didn’t make her video for personal commercial gain, and she hasn’t distributed anything.  So I’m scratchin’ my head, trying to figure out why this chick had to cool it in the clink for a few days and is now awaiting a full-blown criminal trial.  Has being a rude, inconsiderate, i’d-answer-my-cell-phone-if-it-rings-during-this-movie titwank finally become illegal?  She does admit to talking throughout the film, which in my book should be punishable — but more in the corporal variety, e.g., the slap-a-bitch treatment.

Now write the date and time down somewhere, because this may be the only time you’ll ever hear me make the following statement:  I don’t think that the state of Illinois has the power to enforce its bootlegging statute.  Normally, I’d say the federal government should get the hell out of the way, and let the states do their thing, but not this time.  You see, the United States Constitution provides the authority to the Congress to create legislation to protect the exclusive rights of copyright owners.  Any right that the states have to recognize or enforce copyrights has been expressly preempted by the federal government.

Making these criminal charges stick, solely based on the statutory language, may be a slam dunk for some prosecutor, but I’m not sure it would be constitutional.  What say you Blevins?  Would you throw the book at this chick?

Rock and Roll, Rest in Peace.

ABBA has been inducted into the Rock and Roll Hall of Fame. (source)

And the Rock and Roll Hall of Fame is hereby inducted into the Asshat Hall of Fame. Are you yanking my taint? ABBA? A-freakin-Buh-Buh????

Neil Young was wrong when he said that Rock and Roll would never die. Rock and Roll died today. December 15, 2009.

Well Said…

And restrained…

I think that putting the rights of minorities on the ballot and allowing the forces of intolerance to spend an unlimited amount to demonize and marginalize a population is … unsavory.”

So said DC City Council member, David Catania, when interviewed about why he opposes placing marriage equality on the ballot in the District of Columbia, which is expected to legalize same sex marriage this week. (source)

Court slaps down school’s punishment for off-campus pwnage

By J. DeVoy

From Boston.com:

LOS ANGELES – One morning in May 2008, an eighth-grader walked into Janice Hart’s office at a Beverly Hills middle school crying.

I love it when stories start that way.  Many of my real-life hypotheticals relate to crying, so naturally I love when the mainstream media brings it up.  Call it the Eric Cartman effect.

At the heart of the matter, a group of eighth graders posted a video to YouTube where they described the upset classmate as “spoiled,” a “brat,” and a “slut.”  In response, the school issued a two-day suspension to the girl who posted the video.  Last month, though, a Federal District Judge in Los Angeles held that this punishment went too far.

“To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school’s activities, runs afoul [of the law],’’ judge Stephen V. Wilson wrote in a 60-page opinion.

“The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments,’’ he wrote.

Ah, youth.  With all that cruelty comes the ability to regenerate instantly and infinitely — like Wolverine!  Wilson is correct to point out that there was no evidence of school disruption; if this conduct had caused a pattern of deteriorating academic performance, then there may be a better case to punish those in the videos.  But even then there would be serious questions about causation.

Another consideration not set forth in the article may be the fact that this behavior didn’t happen on school grounds.  Unless the YouTube video was posted from school or diminished the victim’s academic performance (noted supra), it’s hard to see why the school would have a legally recognized interest in this.

Eugene Volokh had this to say:

“People don’t appreciate how much the First Amendment protects not only political and ideological speech, but also personal nastiness and chatter. . . . If all cruel teasing led to suicide, the human race would be extinct,’’ Volokh said.

Wait, we’re raising our children to become adults by…expecting them to act like adults?  What a shocker.  Lord, grant me the serenity to accept the things I cannot change, courage to change the things I can, and wisdom to not kill myself every time I’m offended.

Amen.

Florida Criminalizes Arts & Crafts

By Dr. Marty Klein

Remember playing with photos and scissors as a young teen? You’d make collages: your scrawny face on a caveman’s body, your friend’s body with the head of a dog, you and a movie star on a beach in Hawaii. Silly adolescent stuff, harmless.

Now what about putting your head on a movie star’s nude body? Or your neighbor kid’s face on your body? Still harmless, right?

When does this kind of stuff become illegal?

John Stelmack of Lakeland, FL found out the hard way. He allegedly cut out a Xerox copy of a girl’s head, taped it to a printout of an adult female’s body, and Xeroxed it again. According to one of his attorneys, “It was a very poor job, and anyone could tell this was not really a picture of the minor.” When this was accidentally discovered, he was arrested and convicted for creating and possessing child pornography. Remember, these are cut-and-paste productions, not actual photos, and not even computer morphs—of a couple of girls’ heads, and a few nude women’s bodies. His case is now being appealed.

OK, full disclosure: the guy is (or rather, was) an elementary school principal. Yes, this increases the yuck factor, but legally, it shouldn’t matter. He hasn’t been accused of inappropriate touching, suggesting, or even looking. He doesn’t have any history of creating problems or being a problem.

The problem with witches (17th century), Jews (18th & 19th century), and Communists (20th century) was, according to those who claimed to know, that they 1) were everywhere and 2) looked like “normal” people so they couldn’t be easily spotted. Thus the strategies, historically: drown a bunch of women and see if any non-witches survive; burn down Jews’ homes and force them to convert; defame and destroy a bunch of people and see who admits they’re a Red.

Today’s witches, Jews, and Communists are those a little too interested in childhood sexuality. Since it’s hard to tell the dangerous from the curious (or pathetic) in a single glance, many Americans say it’s safer to just arrest everyone who’s questionable. What’s John Stelmack’s life worth, if by sacrificing it we can save even one child from being molested?

According to Stelmack and his family, plenty. It should be worth its weight in gold to anyone concerned about matters such as freedom of speech, the presumption of innocence, and the influence of moral panics on the integrity of the judicial system.

If Stelmack’s conviction is affirmed, some logical questions follow:

* What if the person doing the cutting and pasting were the girl herself? Would she be busted the way teens who “sext” are being busted?
* What if the person doing the cutting and pasting was one of her parents?
* What if the body being morphed with the girl’s face was a nude adult man? Or a clothed but really sexy woman?
* Now that lewd cartoon characters of minors can be criminalized as child porn, what about morphing a girl’s face onto a sexy or nude cartoon body—illegal?

Photoshop is the new arts and crafts. Any adult interacting with kids is the new witch, Jew, Communist. Imprisoning those who play with digital scissors and glue doesn’t make any of us safer. It just pads the resume of some D.A. who doesn’t even consider Stelmack a human being, or our Constitutional system precious.

This piece originally appeared on Dr. Klein’s Blog, Sexual Intelligence.

Dr. Marty Klein is a Licensed Marriage & Family Therapist, Certified Sex Therapist, and sociologist with a special interest in public policy and sexuality. He has written 6 books and over 100 articles about sexuality. Each year he trains thousands of professionals in North America and abroad in clinical skills, human sexuality, and policy issues.

Some days, I really really really love my job

Like on the days I get paid to write stuff like this.

Link courtesy of Xbiz.

Pat the Patriot busted in sex sting

Can the Patriots catch a break this year? Apparently not.

“Cyber Civil Rights” Prioritizes Civility Over Rights

By J. DeVoy

In Danielle Citron’s paper Cyber Civil Rights, which she discussed at Denver Univeristy’s “Cyber Civil Rights” Symposium (summarized by Eric Goldman here), her contempt for existing First Amendment freedoms could not be clearer.  Though anonymous speech can shock and offend people, Citron proposes eliminating it completely.

First, Citron advocates the elimination of § 230 immunity under the Communications Decency Act of 1996 as it applies to certain claims against Internet Service Providers (ISPs).  Additionally, she envisions a regime where ISPs must keep records of the IP addresses assigned to their subscribers in perpetuity.  Second, the reason for this shift in policy arises from the reported victimization of women by online harassers.  Can’t men be victims too?  I’ll consider these propositions in turn.

I.      Citron’s proposed legal changes are asinine, impractical, or both.

The elimination of § 230 immunity for ISPs, however limited in scope, opens a veritable Pandora’s box of new problems for services providers.  If consumers think they pay too much for internet service now, they should just wait to see how they’ll internalize the costs of almost limitless liability for defamation, privacy invasion, and intentional and negligent infliction of emotional distress claims – even when meritless!  Inevitably someone has to pay the legal bills to fight these claims, and the ISP isn’t going to sacrifice profits doing so.

At Concurring Opinions, Michael Froomkin believes that allowing this framework to become law entails a value judgment.  He’s right, but for a different reason: allowing these claims is in itself a value judgment weighing emotional damages over fiscal ones.  Why not repeal § 230 in its entirety so that ISPs have distributor liability for violations of intellectual property laws by others, such as sharing movies and music?  The costs of insuring against such liability would be explosive.  Still, restricting the repeal of § 230 only to harassment-based claims is unfair to entities that lose millions of dollars in calculable financial damages through piracy and have no recourse against the ISP.

For the law to rescind any § 230 protection for ISPs would contradict the entire point of the internet.  The purpose of § 230 was to allow operators, including ISPs, to provide resources to the public without regard for how irresponsibly it would use them.  Similarly, ISPs will be loath to expand the reach and range of internet coverage when adding new subscribers will multiply their liability.  Swaths of the country have limited or no access to high-speed internet, a reality lost on the elites.  Increasing the ISPs’ costs of doing business with unsophisticated consumers will obstruct the end user’s internet access.

Moving to Citron’s second proposal, “traceable anonymity” is an oxymoron; if someone is traceable, he or she is not truly anonymous.  Many ISPs currently retain users’ IP addresses for a period of several months based on a provider’s values and price tolerance.  In the case of online harassment, the effect of the speech is almost immediate, obviating the need to have an eternal record of one’s ISP history.  The reality that any injured party’s legal claim is curtailed by a statute of limitations further weakens the case for a permanent record of IP addresses.  The wrongs Citron fears are quickly and easily ascertained; there is no need to keep a record of IP addresses like an individual’s medical history, retroactively looking for problems over years and decades.

Finally, intermediary technology can easily frustrate the goal of a permanent IP address record. Proxy servers for programs such as Tor and Ghostsurf can be located overseas, outside the reach of American jurisdiction, and mask a user’s IP address behind several layers of proxies.  In theory, this technology makes the speaker untraceable.  More laws would be needed to govern this behavior, further micromanaging internet use, or we have to admit that this kind of conduct is unmanageable.  Maybe shame can work.  Given the gender disparity of online harassment Citron cites, perhaps those concerned about it can frame the use of proxy servers as unmasculine and geeky.

II.    The First Amendment is, and should remain, gender-neutral.

At its core, this debate exists because women report online harassment more often than men.  Equalists, firm in their denial that people of different genders or backgrounds could ever be dissimilar in any way, naturally find this repugnant and attribute it to superstructures of power, hate, resentment and gender struggle that can only be defined in academic terms.  In reality, the causes may be simpler and should be subject to more rigorous research before becoming the basis of new law.

First, some assume that female harassment online is underreported.  To the contrary, it could be over-reported.  Surely no woman would wrongly accuse men of wrongdoing. Nope, never ever.  On the other side of this coin, why isn’t there concern about men underreporting their online harassment?  Because men silently struggle with smear campaigns against them in real life, there is reason to believe it doesn’t happen online and, as in real life, continues without discussion (let alone a report to law enforcement).

The second core assumption is that all, or even most, harassment is male on female.  While Citron cites studies that show female web identities are harassed more often, there is no way to tell that all of these harassers are male.  Though it may stun feminists, some women really do enjoy tearing down other women, and may take advantage of anonymity’s veil to do so.  In the case of men, their harassers may be other men or even females who revel in the torture and emasculation of lesser men.  These avenues’ lack of exploration undermines the validity of the assumption that online harassment is solely about men’s power over women.

Even if these assumptions are true, this is a reality of having free anonymous speech.  While nobody is condoning online harassment, discomfort in the face of unpopular speech does not render it inappropriate.  If it did, the outcomes of People v. Flynt, New York Times v. Sullivan and Pickering v. Board of Education would have all been rather different.  Perhaps this discussion would be changed if the First Amendment was a civil rights statute.  Even then it would be unseemly to prioritize the harm done to one group over another when both are affected, as Citron notes both men and women suffer from online harassment.  The First Amendment is not a statutory enactment, however, and it holds much greater regard in our legal system.  As there is no legal basis for limiting constitutional protections because one group has its feelings hurt more than the other, Citron’s proposal would be an improper encroachment on the First Amendment.

III.  Conclusion

In all, Citron’s proposal is an intrusion on the First Amendment for the sake of protecting people’s feelings.  This is a thoughtful but misguided goal.  Inasmuch as I dislike having my feelings hurt, the purpose of the First Amendment is to allow people to say what they want, anonymously if they wish, within the bounds of the law.  When Anonymous turns an internet persona like Paul Fetch into a “lolcow,” they are exercising their rights to disagree with his speech and have violated no law, however much Fetch may dislike it.  Prospectively limiting this right based on under-researched gender bogeymen is unconscionable and unconstitutional.  When exercised legally, the right to speech – and lulz – is and should be unfettered.

Jay DeVoy is a third-year law student at the University of Wisconsin Law School. There, he is the President of his Federalist Society chapter, on the executive board of the Wisconsin Moot Court board, and a member of the Wisconsin International Law Journal. DeVoy previously has held editorial positions with various student newspapers and dedicated his time to raising awareness of First Amendment and free market issues.

A Satyricon Christmas Carol

Happy muthafuckin holidays, magic space zombie jew eaters.

When Food Attacks

Who knew that meat was such an effective weapon.

Biurny Peguero Gonzalez: Rape “victim” comes forward and admits lie, could face 7 years

On the advice of her priest, my ass.

New Jersey resident Biurny Peguero said she was visciously gang-raped by three men in a van after a night of drinking in upper Manhattan. Her testimony sent William McCaffery to jail despite a lack of DNA evidence linking him to the crime.

Now, on the advice of her priest, Peguero has admitted it was all a hoax. (source)

I wonder if Hallmark makes a “sorry I’m a lying piece of shit who got you sent to jail for four years for gang rape” card.

The court papers say she invented the rape to cover for a fight she had had with some of her women friends. The fight had been so fierce that one of the women kicked and broke a window in a car, according to the papers.

The next morning, Ms. Peguero went to Christ Hospital in Jersey City, saying she had been raped. Officials notified the police in Manhattan, and soon Mr. McCaffrey was in custody. (source)

The prosecutors say that this explains why the rape kit came back negative. Gee, ya think? It turns out that it wasn’t even a circumstance of consensual sex being reported as a rape. Nope. There wasn’t even sex. Just a bat-shit-crazy bitch who decided to lie. I’d like to understand how the hell a guy can go to jail when there wasn’t a shred of physical evidence that she even had sex, let alone suffered through a gang rape.

The New York Times reported in August that the evidence conclusively showed that he was innocent.

Last year, after he had served 2 years of a 20-year sentence, a new DNA test showed that bite marks on Ms. Peguero’s arm and shoulder the morning she reported that she had been attacked could not have been made by Mr. McCaffrey — the genetic material lacked a Y chromosome, meaning it could not have come from a man. (source)

Biurny Peguero Gonzalez faces 7 years in prison for perjury. I don’t think that’s enough of a punishment. She sent a guy to jail on a false claim of gang rape. She ought to have to serve those 7 years in the sex offender wing of an all male prison. When she gets out, she should have to lick her victim’s toilet clean every day for the rest of his life.

The Janitor has to be lying (or we have to revoke the janitor’s Man Card)

The Janitor's Man Card

A Brooklyn high school is all abuzz after its Spanish teacher and French teacher, Cindy Mauro and Alini Brito, were allegedly caught naked together in a classroom by the school’s janitor, who turned them in. They are now suspended from their teaching duties. (source). Get this… they’re both totally hot.

Now lets walk through the story…. let’s say you’re the janitor… Nothing against high school janitors, but I think that even the janitor’s union would agree that none of its members have actually gotten a whole lot of breaks in life. I’m willing to bet that the number of high school janitors who have gotten to watch two hot girls do it, LIVE, is about zero.

So you walk in to an empty classroom with your mop and bucket, and there you see Miss Mauro and Miss Brito naked and making out. You run off and REPORT THEM?

Something about this story doesn’t add up.

Here is the proper procedure, as written in the Man Manual, for how to handle stumbling across two hot girls doing each other in an inappropriately public place.

Step 1: Just watch for a little while. Do not be creepy about it. Do not begin masturbating. Just watch. Smile. Behold. Kinda the way you watch a sunset. No cheering. No commentary. Just shut the fuck up and watch until one of them, or both of them, notice you.

Step 2: Ask if you can join in. Chances are not high that you’ll get the green light, but you miss 100% of the shots you do not take. Toss that hail mary pass. Be polite about it. Don’t be pushy, pathetic, or creepy. Just a simple “would you mind if I join in?” or “whaddaya say we do this family-style” or something of the sort. If denied, proceed to step 3.

Step 3: Ask again, but don’t be a dick and don’t be pushy. Just a “c’mon, it will be fuuuuun!” If denied, go to step 4.

Step 4: Find a comfortable, out of the way place, where you won’t interfere with the natural process unfolding in front of you, and just watch. If they tell you to leave, well, sorry… you gotta leave. No protest. Just smile, say something nice, maybe even volunteer to do lookout, but you do have to leave. Go to step 5.

Step 5: Think about the fact that perhaps there is a God, and he loves you, and that’s why you got to watch the Spanish teacher and the French teacher doing each other — even for a brief moment. The next time you are at a bar with more than three buddies, buy a round of beers and shots. When the boys ask why, you tell them to do the shot, then you tell the story, then you drink the beer as you try and convince them that you’re not full of shit. They will not believe you, but you’ll drink that nice cold beer with the smug smile of a man with some great material in his spank bank.

THAT is how you handle this situation. EVERY man would handle it the EXACT same way.*

If you run off and get the girls busted, you’re a douche, and you lose your man card. EVERY man knows this.

Therefore, either the janitor is lying, or he’s a douche who just lost his man card.

* UPDATE: How insensitive of me. I was being completely heterocentric in this post. If the janitor was gay, he wouldn’t need to go through those steps. The gay male directions would be much simpler. Wink, withdraw, and cover for them.

USA Technologies gets bitch slapped by EFF

USA Technologies, based in Malvern, Pennsylvania ought to see its stock price drop a little more once the world gets wind of what kind of morons run the company. A couple of message board posters commented about the company’s plummeting stock prices and the over-compensated executives at the consistently unprofitable company. So, USA Technologies’ crack team sprang into action, fixing the problem.

Ha, just kidding. They did what every moron does, pretend the problem doesn’t exist, but sue the commenters for defamation. (Complaint – courtesy EFF). They then issued a subpoena to try and unmask the anonymous commenters, and SPLAT! Their dipshittery smacked head on with California code of civil procedure § 1987.2

The EFF describes this statute as follows:

California code of civil procedure § 1987.2 awards mandatory attorney’s fees to an anonymous speaker if a court grants his or her motion to quash an identity subpoena issued in support of an out-of-state suit and “if the underlying action arises from the moving party’s exercise of free speech rights on the Internet and the respondent has failed to make a prima facie showing of a cause of action.” Translation: out-of-state litigants who try to use the California legal system to unmask anonymous speakers citing dubious legal theories may have to pay their target’s attorney’s fees for their trouble. (source)

Right on EFF!

Even Gold Paint Guy has publicity rights

Oh that's gotta be rough...

Patrick Tribett is the poster boy for pwnage. Tribett had a pretty bad addiction to huffing spray paint to get high (never tried it, but that does not sound like fun). He was such a mess that he walked in to a Bellaire, Ohio general store looking for another round. The owner called the cops, who came to the scene. They suspected Tribett of unlawful abuse of inhalants.

Of course, the investigation didn’t take too long — given the gold paint all over his high as a kite face. His mugshot made The Smoking Gun (never a good thing) and the ensuing hilarity made Tribett the “gole paint guy” — yep, Tribett became his very own internet meme. Even after that, he got busted huffing paint again.

I am not writing this piece to pile more shit on poor Mr. Tribett. Actually, the guy seems to have gotten his act together. Yay Gold Paint Guy!

And even better… he’s given me fodder for a Right of Publicity Law post!!! Thanks Gold Paint Guy!

It turns out that Tribett is planning to file a lawsuit against Amazon, Cafe Press, and Hot Toys (source). Normally, this might be where I call him an asshat, but I am not going to do that this time. Tribett might very well have a legitimate case.

Tribett isn’t suing everyone who used his mugshot. If he did, that would land him an asshat award, because we have a right to use that picture — and we have a right to use that picture to mock him. All the websites devoted to him are First Amendment protected. All of these uses are a-ok. The photograph would not be protected by copyright, as it is automatically in the public domain.

But, everything changes when you start making t-shirts and mugs of the guy.

Yes, a little cottage industry started running after Mr. Tribett’s unfortunately hilarious mugshot started flying around cyberspace. I wouldn’t imagine that it contributed a lot to the economy, but I am sure that a few people made a few bucks off of him — and now Tribett wants his cut. And under the law, he’s got a point.

Publicity rights give a person the right to profit from the commercial exploitation of his or her image, likeness, or name. That’s why you can’t just slap a picture of Tiger Woods on a box of condoms, and you can’t slap my picture on an ass kicking machine without paying for the privilege. Not all states protect publicity rights, but they are recognized by statute or common law claims in at least 30 states. Mr. Tribett’s West Virginia does not have a ROP statute, but the state common law recognizes it. See Curran v. Amazon.com Inc., 36 Media L. Rptr. 1641 (S.D. W.Va. Feb. 19, 2008) (justia file)

Good luck to Mr. Tribett in his quest for extended sobriety. I am looking forward to seeing how his ROP case goes.

Take it From Me: Elites Just Don’t Understand

by Christopher Harbin

"I can't teach you how to write a pleading that will survive a MTD -- I need to finish my forthcoming Article entitled 'No Backsies: The Common Law Origins of Playground Tag Rules.'"

Marc likes to post about the worthlessness of legal education yet never outright addresses the underlying reason it is worthless.  The reason is simple:  Legal academia is run by and large by the elite.  And the elite (for the most part) are completely worthless as lawyers.  Here’s why:

Elites are beholden to hierarchical power structures

For a profession that is supposed to champion egalitarianism and free expression of ideas, I have never met so many who are unwilling to challenge accepted power structures.  Associate.  Assistant. Professor.  Emeritus.  The inherent idea behind these titles is that you can use them as shorthand for whose ideas are better than others.  I love the disdain that rolls of the tongues of the tenured when they say “Oh, you mean that skills professor.”  How many times did you hear adjunct used as an epithet, Marc?  I bet a lot.  “You’re the new adjunct professor, eh?”

Elites are pussies

Remember in law school, where the elite professors and students banded together for a cause and took a stand on something unjust?  Yeah, I don’t either.   That’s because elites hate to take positions.  Taking a position means that you care about something.  And elites think that caring about something is a sign of weakness.  Remember the people who took positions in law school?  Yeah, they were the non-elites.  The kids who had nothing to lose by caring about something.  The elites were the ones calling an actuary before deciding whether to wipe their ass.

Case in point:  I had a friend (elites would call this person a colleague) at another law school that recently discovered outrageous plagiarism in a professor-submitted article they were editing for a student-run journal.  When the board brought the plagiarism to their school’s administration, the amount of absolute deference given to the professor was stunning.   One remedy the board suggested was informing the professor’s home institution of their findings and forwarding the evidence along.  Needless to say this was shot down as the elites circled the wagons.  The editorial board was also instructed to not name and shame the professor.  So, the end result is that this professor is free to submit their work to another journal.  A student would be expelled.  A professor protected.  Typical elite behavior.

Last example — in recommending that JD graduates seek a PhD if they want to enter the legal academy, Dave Hoffman comments that “these considerations intentionally ignore the important question — is this a good thing, or a bad thing, for legal education.  I don’t have a thing to say about that big question which is both novel and interesting.”  First of all, having nothing novel or interesting to say is par for the course among legal academics, so don’t beat yourself up over it.  Second, it just highlights that law professors hate to expose their views.  Hoffman went so far to let everyone know that he was actually not taking a position, that he led his defense by insulting Marc in the comments.  Marc retorted by telling Hoffman to shit in his hat. Beautiful.

So here’s the difference between elites and non-elites — we can take positions on things!  See – requiring a PhD in addition to a JD is bad for law schools and law students.  It only furthers the class divide in legal academia, which will likely be extracted from students in their tuition as JD/PhD’s demand more compensation to cover their investment.  I didn’t just explode.  Neat!

Elites only care about informing others of their elite status and not the substance of their work.

I sit on the editorial board of a journal at Michigan and accordingly receive article submissions from law professors.  I can immediately tell the difference between an article sent by an elite and one sent by a non-elite / practitioner.  And it has nothing to do with the merit of the article.    See — in addition to their article (including the useless star (*) footnote, where law professors casually name drop the school they teach at and/or the law school they graduated from), the elites will send a fifty page CV that includes seventy rehashes of their one article in book chapters, presentations, and blogs along with every award they have ever received, including the time they won the jump rope contest at the Westhampton Academy for the Ethical Education of the Gifted, Talented, and Well-Dressed.   Oh, yeah.  And a one paragraph abstract written by their research assistant.  Note to law professors:  clean the meta-data before you submit your articles.

So given the above characteristics of the elite, it should be no surprise that they aren’t very good at teaching law students how to actually be lawyers.  Besides, if forced to teach – shudder – a skills class, elites would have less time to focus on real doctrinal classes, like say “Bloodfeuds,” “Fakin’ It,” or “Moral Order and the Irrational: Freud and Nietzsche.”

Legal academia is focused on serving these elites and everything else is secondary.  And in a system where skills (read: practical) classes are taught by professors uniformly cast by the tenured as second-class citizens, it sends a clear message to law students:  You don’t need to know how to do this menial work — that’s what law firms and their respective clients are for.  It’s no wonder clients are so pissed at first year billing rates.

The institutionalism of this goes beyond the tenure / non-tenure distinction.  At most schools, research, writing, and drafting classes are graded on a mandatory pass / fail basis whereas doctrinal classes are graded on a curve.  News flash:  Most law students put in the bare minimum amount of work into what is the foundation of the rest of their career.

I worked exceptionally hard in these classes because I want to do good work for clients one day.  While I find the “brain candy” of law school to be intellectually stimulating, perhaps it is my non-elite background that reminds me that one day I’ll need to put bread on the table for my wife and me.  What is clear is that for law professors, because of their elite background, this motivation never occurs to them.

As much as I am sure law firms and clients are delighted by a lawyer’s command of “The Law and Baseball” (a real course), I’m pretty sure they would much rather their lawyers are able to research relevant legal authorities and provide practical legal advice about their problems.  Elite professors simply don’t understand this, nor do they care to.  A life of privilege will do that to you.