Spam Sucks

The U.S. Senate realized that spam is not just a mere inconvenience, but a burden on interstate commerce and passed (97-0) S. 897, a bill to regulate spam . Unfortunately, if enacted into law, this bill would not only do little to effectively curtail spam, but could hamper state anti-spam actions.
My first problem with this bill is not unique to this bill, but is one shared by most modern legislation. This bill is titled the “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003′, or the ‘CAN-SPAM Act of 2003.'” (§1). Please, make the unabated spread of awkward cutesy acronyms stop already.
The other shortcomings of this act are significant and substantive. The key problem is that in §2(b)(3), the Senate determines that it is sufficient protection only that consumers are given the ability to opt-out.:”recipients of unsolicited commercial electronic mail have a right to decline to receive additional unsolicited commercial electronic mail from the same source.” In other words, companies are free to send unsolicited email, so long as they provide a functional, clear and conspicuous unsubscribe option. The burden for avoiding unwanted commercial email falls on the individual to unsubscribe, rather than providing effective constraints to prevent marketers from sending unwanted email. Users have to affirmatively execute their right to decline further unsolicited commercial email with each entity who sends spam.
Unsolicited commercial electronic mail and affirmative consent are defined too imprecisely to effectively regulate spam. In section §3(1), the bill defines affirmative consent:

(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient’s own initiative; and
(B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient’s electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.

Under this definition, it seems that a website or email list builder is not prevented from selling their lists of addresses, so long as the recipients were given “clear and conspicuous notice” that their addresses would be released to a third party. Although §9 of the bill recommends creating a “do-not-spam” list, its effectiveness will be undermined because the bill allows marketers to share email lists to other parties, with not constraints other than the requirement to provide “clear and conspicuous notice.” Then, the affected individual email users will have to opt-out of email from every sender.
In §3(2), the bill defines “Commercial electronic mail message” as: “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” However “inclusion of a reference to a commercial entity or a link to the website of a commercial entity in an electronic mail message does not, by itself, cause such message to be treated as a commercial electronic mail message for purposes of this Act if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service.”
Under this definition, a message whose primary purpose is to remind people that Daylight Savings Time ends this weekend can be sponsored by Besco clock and watch company (a merciless spammer) and include a link its website. I’m sure that the penis enlargement pill marketing industry could easily find a message whose primary purpose is non-commercial. This would exempt this sort of message, since it is “non-commercial,” from the regulations.
This bill does not provude a private right of action. Instead, the FTC (§7), State Attorney Generals (§7(e)) and ISPs (§7(f)) are able to act against spammers.
This bill preempts state anti-spam statutes, except for those that prohibit falsity or deception. So, stronger specific anti-spam laws, like California’s will be preempted by this weaker federal legislation. Regulation of spam under non-specific consumer protection laws, like New York;s, can continue.
Washington Post: Senate Votes 97-0 To Restrict E-Mail Ads
Internet.com: Senate Anti-Spam Bill Ups Ante for House Action
In related news, the Pew Internet & American Life Project released a new report: Spam: How it is hurting email and degrading life on the Internet
Wired News: Survey Confirms It: Spam Sucks
NY Times: A Change of Habits to Elude Spam’s Pall

I Can’t Believe it’s a Law Firm

lionel.gif Jeremy has been riding the subway and enjoying the quality law firm ads:

Advertisement on the NYC Subway for a law firm — descriptions of cases they’ve won for damage from lead poisoning and medical malpractice — and a slogan, in quotes: “We fight for kids with brain damage.” Wow. And the ad includes a silhouette of a man with a top hat and boxing gloves — “fighting,” I suppose, “for kids with brain damage.” Wow. And it gets better. Because I went to their website, Ambulance-Chasing Law Firm’s Website, where they explain the top hat / boxing glove man: “We?re proud of being known as fighters for our clients rights and the [firm’s] fighting spirit is embodied in our logo and our mascot, Seamus, our Fighting Irish Leprechaun.” You think I’m kidding? Check out the site.

Satan’s Landromat (love the blog title) has photos of more subway ads for personal injury lawyers. Note how happy the people look while falling off a ladder and crashing head-first through a car windshield.
I’m glad I’m not working for Lionel Hutz this summer.
Update: Satan’s Laundromat collects all seven ads.
Flak Magazine: Shandell, Blitz’s Subway Ads

Hours and hours

In a NYT Op-Ed, Workweek Woes, John De Graaf wonders why Americans work so much and vacation so little. Lawyers are notoriously bad for working excessive hours.

According to the International Labor Organization, Americans now work 1,978 hours annually, a full 350 hours — nine weeks — more than Western Europeans.

In contrast, associates at NY Biglaw firms generally have to bill 2,000 hours per year. To bill 2,000 hours, one must work significantly more hours than that number. To compensate for taking so much time, the starting salaries are impressive.
I wonder why firms don’t higher more associates, working shorter hours at less extravagant salaries. I see a few possible reasons for why associates work such long hours

  1. The nature of the work
    Writing motions and briefs, poring over documents in discovery and doing legal research are all time-consuming tasks that are difficult to divide. Throwing more associates at the work wouldn’t affect how long each lawyer would have to work on each assignment
  2. The nature of the workers
    The people who end up as Biglaw associates are all Type A go-getters. They are going to work above and beyond what’s necessary no matter what, and wouldn’t consider working shorter hours.

Under either theory, the firms save money on office space and benefits. Having more bodies would make it more difficult to avoid layoffs during leaner times. Hiring more associates would mean even fewer will ever make partner.

By contrast, over the past 30 years, Europeans have made a different choice — to live simpler, more balanced lives and work fewer hours. The average Norwegian, for instance, works 29 percent less than the average American — 14 weeks per year — yet his average income is only 16 percent less. Western Europeans average five to six weeks of paid vacation a year; we average two.

I wonder if the associates and firms would have better productivity, efficiency, quality of work and quality of life by adopting less strenuous schedules…

Fun with jurisdiction online

While discussing how the Internet affects a court’s jurisdiction over a person in Civ. Pro this week, we read Griffis v. Luban, 646 N.W.2d 527 (2002 Minn.). In this decision, the Minnesota Supreme Court held that an Alabama court did not have proper jurisdiction over a Minnesota resident whose contacts with Alabama centered around attacking the credentials of an Alabama resident in a series of newsgroup posts (in sci.archaeology). Like most procedure cases, the interesting aspects of the ruling have little to do with the conduct that led to the lawsuit. The question addressed in the Minnesota court ruling deals with personal jurisdiction and the minimum contacts analysis when the contacts only happen through a newsgroup. The fun with a case that stems from possible defamation in a newsgroup is that the posts that led to the lawsuit are easily available through Google’s Usenet archive (formerly Dejanews).
Griffis, an adjunct professor instructor at the University of Alabama, sued Marianne Luban in Alabama state court, claiming that Luban’s postings to sci.archaeology were defamatory. Some of these posts included: Phoney Egyptologists

Why a person like Katherine Griffis
feels she has the right to circumvent all this and simply pluck a degree
out of Cracker Jack box in order to lend herself some sort of cachet in
a science-oriented newsgroup, is incomprehensible to me. It implies a
basic lack of self-confidence that seems odd in such an arrogant
individual.

and Griffis Is A Lawyer Now (was Indian Artifacts etc.)

HA HA HA!!!! Now the phoney Egyptologist is a Juris Doctor!!! I’ll bet she has several professions in newsgroups all over the Net!

Griffis won a default judgment in Alabama state court (leading to this fun thread in sci.archaeology: A DEFAULT JUDGMENT IS A LOT OF CRAP.) Griffis then sued in Minnesota to enforce the judgment. The trial court and appellate court both found for Griffis and held that the Alabama court had jurisdiction over Luban, so Luban would be forced to pay the $25,000 judgment entered in Alabama.
As the case proceeded through the courts, posters littered sci.archaeology with the smoking ruins of a long-running flame war. For example, Their Smear Campaign Still Continues (1998).
The Minnesota Supreme Court, sitting en banc, reversed and held that the Alabama court had no jurisdiction over Luban, since the main effects of her actions were not directly felt only in Alabama and because she did not explicitly target her actions towards Alabama. This week, the Supreme Court denied hearing the appeal, so the Minnesota Supreme Court’s judgment denying jurisdiction stands.
Minnesota will uphold a foreign court exercising personal jurisdiction over a Minnesota citizen when such exercise complies with the foreign state’s law providing jurisdiction and the exercise of jurisdiction does not violate the Due Process clause of the US Constitution. The Alabama statute provides for personal jurisdiction over nonresident defendants “to the full extent permitted by due process”, so the Minnesota ruling focuses on the due process inquiry. Griffis contended that the Alabama courts had specific jurisdiction over Luban, arising out of the defendant’s contacts with Alabama.
The Minnesota Court analyzed this case under the effects test adopted by the Supreme Court in Calder v. Jones, 465 U.S. 783 (1984). The Calder effects test will allow personal jurisdiction over a party whose conduct was expressly aimed at the forum state, knowing that the harmful effects would be felt primarily there and that the defendants would “reasonably anticipate being haled into court.” (In Calder, the Court upheld jurisdiction over the defendants, who wrote and edited an allegedly libelous National Enquirer article in Florida about the California activities of the plaintiff, a California resident. Not only did the Enquirer had its largest circulation in California, but Jones’s professional activities were centered in California.)
The Minnesota Court adopted the Third Circuit’s three-part analysis of the effects test from Imo Industries, Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998). This test requires the plaintiff to show that: “(1) the defendant committed an intentional tort; (2) the plaintiff felt the brunt of the harm caused by that tort in the forum such that the forum state was the focal point of the plaintiff’s injury; and (3) the defendant expressly aimed the tortious conduct at the forum such that the forum state was the focal point of the tortious activity.” id. The Minnesota Court focuses on the third prong of the Imo Industries analysis, which requires not just a showing than the a showing that the defendant committed an intentional tort against the plaintiff, but a showing that the forum was the focal point of the tortious activity.
The conclusion reached by the Minnesota Court, that the evidence does not clearly demonstrate that Luban’s statements were expressly aimed at Alabama, is based on the nature of the newsgroup as an ephemeral, non-geographic forum. No matter what effects the sci.archaeology postings had on Griffis’s business and professional reputation in Alabama, because they were not specifically targetted towards an Alabama audience, they were not sufficient to establish Alabama as the focal point of the tortious activity. Even though the newsgroup postings could have been read in Alabama, those postings could be read anywhere in the world, which was not sufficient to establish Alabama as the focal point of the activity. Because the newsgroup was based on a subject interest, not a geographical interest, there was no reason to assume that the effects would manifest primarily in Alabama. Unlike in Calder, where the Court found that California represented the center of the entertainment industry, the Minnesota Court finds no such connection between Alabama and Egyptology.
Of course, allegedly libelous posts to a subject-centric newsgroup will probably have more significant negative effects on a person’s professional reputation within that specialized field than similar posts to a geographic-centric online discussion forum. However, the victim of libelous statements in an online discussion forum will have to sue in the defendant’s home state. Even though this rule forces a victim to litigate in a foreign forum, it keeps a defendant from having to defend lawsuits in foreign forum. If newsgroup contacts were enough to establish personal jurisdiction, defendants would be forced to travel to defend suits of little merit. By forcing plaintiffs to litigate in the defendant’s home state, this policy may weed out the less meritorious lawsuits, reduce the number of marginal lawsuits and promote judicial efficiency.
Not only does this case provide an interesting foray into the law of personal jurisdiction, but it also provides an interesting case about interpersonal interactions online. Usenet became particularly bad, but in many online forums, participants fail to treat the others with respect. People feel comfortable saying things to others online that most people would never say to others in person. Perhaps people are inherently nasty, and act less inhibited online because the medium is impersonal and they believe they can get away with being nasty without any bad repercussions. Perhaps they fail to realize that what they post may be archived for future generations to find.
Edited 4/8/2002 to elaborate on the legal analysis. I intend to edit at least once more for clarity and consistency of citations

Establishment Clausewitz

On Friday, the US Court of Appeals for the 9th Circuit ruled on
Newdow v. US Congress, denying rehearing en banc, and setting it up for appeal to the Supreme Court. I’m going to refrain on writing more now due to my inability to write anything quickly, but I hope to sometime this week, as I get back into Establishment Clause reading to prepare for the final draft of my brief. Here are some news stories and blog posts (all via How Appealing):
SF Chronicle: Federal court stands pat on Pledge of Allegiance ruling
Use of words ‘under God’ will probably be appealed to the Supreme Court

NYT: Court Lets Stand the Ban on ‘God’ in Pledge
Prof. Jack Balkin: Pledging Allegiance
San Jose Mercury News: Judges stick with pledge ban
AP: Court dramatically contracts its Pledge of Allegiance decision
Howard Bashman: What’s next in the Pledge of Allegiance case?

Homegrown Stalinism

As an undergrad, I majored in Russian studies and even considered going on to graduate school in that field, but I decided on law school. The politics and culture of the Soviet era are fascinating. I didn’t think that studying Stalinism would be particularly relevant to American law and society in 2003, but it may become increasingly relevant.

Recently, a draft of the Justice Department’s proposed sequel to the Patriot Act leaked out. The Daily Rotten has the text of the draft. Commentary from: The Center for Public Integrity, Reason, Jonathan Peterson, and Politech subscribers.

So far I’ve only skimmed through the draft, but if enacted into law, it would represent the US taking a step towards Stalinism. During the Great Terror of the late 1930’s, Russians lived in constant fear of waking up to a knock on the door in the middle of the night and getting exiled to the Gulag because of someone’s anonymous allegation. A government that will restrict free access to information and limit individual rights due to creeping paranoia could itself become another sort of terror. I never thought that trying to defend Americans against Islamic terrorism would force us to also defend ourselves against homegrown Stalinism in 2003.

Casual Dress Casualties

Casual Dress Is History At NY Firm

Lawyers in the New York office of Greenberg Traurig were informed by e-mail last Wednesday afternoon that because the “mood and business climate in [the legal market had] changed since the heyday of the tech boom,” the firm would be reverting to a business-formal dress code effective April 1.

I think that casual dress, outside of client contact, makes for a more comfortable and productive workplace, but lawyers in suits can bill more than lawyers in khakis.

Grades matter

Grades really do matter. Gibson, Dunn & Crutcher requires all hires, including lateral partners, to rank near the top of their class in law school. They recently turned down a lateral hire with $7 million in portable book because he didn’t make the grade. Ouch.

[a mad tea-party]

Is there any good way to point out the excessive status-consciousness and insecurity that pervades the entire legal profession?

Job opp?

There’s a shortage of lawyers in Nunavut. CBC: Nunavut’s 4 private lawyers struggle to deal with case loads

The shortage of private-sector lawyers in Nunavut has led to long waits and high costs for people needing legal services, such as buying a home.
The new territory has only four lawyers in private practice and they’re busy dealing with criminal matters.
The number of lawyers in private practice in the region has always been low, but when the territory of Nunavut was created in 1999, many of them went to work for the government.