Blind Faith: The DOJ Cracks Down On E-Readers

I'll be honest. When I first saw this story, I found it hard to believe that the DOJ would sue the Sacramento Library system on an ADA violation for ditributing e-readers without braile features. Surely it's one of those "right-wing media" stories taking some bad Big Gov't facts and turning them up to 11, right? Well, the Sac Bee has picked it up, so here we go:

The U.S. Justice Department says it has reached a settlement with the Sacramento (California) Public Library over a trial program the library was conducting that let patrons borrow Barnes and Noble NOOK e-book readers. 

DOJ and the National Federation of the Blind objected to the program on grounds that blind people could not use the NOOK e-readers for technological reasons. 

The Justice Department said the settlement is aimed at stopping discrimination: “Emerging technologies like e-readers are changing the way we interact with the world around us and we need to ensure that people with disabilities are not excluded from the programs where these devices are used,” said Assistant Attorney General Thomas E. Perez in a news release.

This is, of course, absurd. Not only that, no blind person had complained to the gov't. This was purely a ADA-lawsuit where attorneys and a single plaintiff searching for "harm." In this case, the attorneys were working for the gov't and a non-profit that is really an NGO.

A DOJ official told CNSNews.com it interviewed a woman who could not participate in the library's e-reader program due to her disability and concluded that the program had violated the ADA. 

Amy Calhoun, an Electronic Resources Librarian at the Sacramento Public Library who helped launch the ebook reader project, said she was unaware of any objections from a blind person regarding the program. “I have not heard of a specific complaint directly from a patron,” she told CNSNews.com. “But I do know that patrons who are part of the statewide Braille and talking-book program do get in touch with us for audio books.” 

The Sacramento Public Library Authority, which operates 28 libraries, partnered with the book store chain to provide at least one NOOK e-book reader to each of its libraries, pre-loaded with roughly 20 books in all genres. 

The library describes the program as a “pilot project,” and it requires patrons to fill out a feedback survey as the program works through its initial stages. 

But the Justice Department says a state or local government program that excludes people with disabilities violates the ADA, regardless of whether it is a “pilot” program.

And, of course, the sorts of e-readers that would be ADA-compliant are much more expensive, and produced by different companies. Want to bet if Barnes & Noble tried to produce its own "approved" readers that they would be fending off patent lawsuits?

No one was doing anything wrong here, but the gov't and its allies in the ADA lobbying complex got their pelt anyway.

If You Must Go, Then Go Quietly: George Zimmerman's Former Attorneys

There's been a lot of bizarre behavior with the Treyvon Martin case, but special mention should be made of George Zimmerman's now-former attorneys, who made a big show of resigning from the case the day before Zimmerman was charged with second degree murder: 

The lawyers for George Zimmerman, the member of a neighborhood watch group who killed an unarmed teenager, said they were withdrawing as his legal counsel, a surprise twist in a case that has riveted the nation. 

"We've lost contact with him," attorney Craig Sonner said at a news conference Tuesday afternoon. "He's gone on his own." Mr. Sonner said the last time he had communicated with his client was on Sunday. Since then, Mr. Zimmerman hadn't returned phone calls, text messages or emails, he said. 

Mr. Zimmerman fatally shot 17-year-old Trayvon Martin in Sanford, Fla., in February and later told police he acted in self-defense. Mr. Martin's family, however, says Mr. Zimmerman was the aggressor. State and federal investigations are under way. Mr. Zimmerman hasn't been charged with any crime. 

The attorneys cited a number of purported actions on Mr. Zimmerman's part that they said they found troubling, including his contacting media and the special prosecutor investigating his case without alerting them.
...
The lawyers also said they had received information that Mr. Zimmerman had spoken off the record to Sean Hannity of Fox News, without alerting them. They were unaware of what their client discussed with the news anchor, they said. Fox News is owned by News Corp., which also owns The Wall Street Journal....The "final straw," said Hal Uhrig, Mr. Zimmerman's other attorney, was that Mr. Zimmerman contacted Ms. Corey's office, also without notifying the lawyers. Mr. Uhrig said clients should never speak to anyone, let alone a prosecutor, about their case without an attorney present.The lawyers said they had gone to great lengths to set up a website where supporters could send donations to their client. Yet the lawyers said they learned on Monday that Mr. Zimmerman had set up his own website—therealgeorgezimmerman.com—without consulting them.

There's a lot of bad attorney behavior on display here. First of all, who calls a press conference to announce to the world that you are resigning from the case? If you are going to resign, then resign. More important, they trash their client as they head out the door, making him seem like a fugitive on the run, rather than what he is: someone who probably can't walk down the street in Central Florida without fearing death at the hands of a member of the mobs whipped up by the "civil rights" community. They even manage to hint at Zimmerman's location. Ridiculous. 


And, worst of all, this press conference was the first time I'd ever heard of these guys. Zimmerman's already been tried and convicted in the media. His desperate family and friends have taken to the airwaves to defend the man. Zimmerman himself has set up a website, one that (shudder) his former attorneys did not approve of. Uh, fellas, maybe Zimmerman and his few supporters are doing this because you guys aren't doing your damn job. The one thing a defense attorney is supposed to do is defend their client, and I have seen no indication that either of these guys has done so. Instead, it looks like they've been hiding under a desk, not wanting to be associated with this case, and took the first chance to noisily "resign" (I'd call it abandon) from the case on the eve of Zimmerman's indictment. 


Zimmerman has already retained new counsel, Mark O'Meira. You may have heard him on the news last night, as he gave a quick press conference in the wake of the newly filed 2nd degree murder charges. Hopefully, Zimmerman will be better represented this time around. 

Larry Ribstein, RIP

Larry Ribstein, who was Free Will's favorite law blogger, has died unexpectedly. This is one of those losses inevitably described as "incalculable:"

This morning our dear colleague, Larry Ribstein, passed away.  The intellectual life of everyone who knew him, of this blog, and of the legal academy at large is deeply diminished for his passing. 

For me, as for many others, Larry was an important influence, not only intellectually but personally, as well.  Larry was the godfather of this blog, which got its start when a few of us, including Bill Sjostrom, Josh, Thom and me, pinch hit for Larry at Ideoblog in November 2005.  It took eight of us, including my dad, to fill his shoes, and still his traffic went down.  More than anyone else, Larry was instrumental in my decision to leave law teaching to work at Microsoft.  Completely unsure what to do and worried about how it would affect my ability to return to law teaching, I called Larry, who had no doubt.  He sealed the deal by pointing out that a move like that one would open some completely unanticipated, and potentially great, career paths and telling me not to worry so much about getting back to law teaching.  He was right, of course, and, thus also an important influence on the creation of the International Center for Law and Economics.  And Larry was a friend, one of those I always looked forward to seeing at ALEA and other conferences, more than once providing the necessary marginal incentive to attend. 

We grieve for Ann, Sarah and Susannah and mourn his passing.

Ribstein was almost unique as a legal scholar in that he focused on the business of practicing law, which means he was the only legal scholar I have read for anything resembling practical advice. His Big Theory of the last few years has been the decentralization and demystification of legal practice; rather than a bunch of big firms dominating the landscape, Ribstein saw the emergence of smaller, nimbler practice groups marketing themselves to the general public. Intellectually speaking, this is someone who died with his boots on, leaving a lot of unanswered questions and unwritten papers with his departure. A sad loss for us all. 

Mad Dog: Keeping the Libyan War Going

You just have to laugh at this stuff. The Obama administration is taking to new heights its argument that American involvement in the Libyan Air War is not the sort of bellicose behavior that will run afoul of the War Powers Act. The NY Times reports that Obama's own lawyers told him the US was at war with Libya causing him to ... seek out new lawyers who would tell him what he wants to hear.

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.

Just to add to the hilarity, Koh was one of the leading lights of the unitary executive critique that was so fashionable during the dread Bush Administration. Now he's making goofy hair-splitting arguments about how we are warring but are not "at war." Ridiculous. Maybe Americans aren't looking through the cross-hairs, but we are certainly providing logistical and material support that is much more important to the war effort than whomever is at the tip of the spear. As others have pointed out, if there was a country attacking the US in an effort to force Obama from office, and there was a third country offering material support (and even hovering off-shore) is there any doubt we would consider ourselves to be at war with them?

The worst of it is that this was all so unnecessary. The original sin of the Libyan Intervention was not going in without congressional approval. It was the inexcusable two-week delay when the rebels - remember them? - were at the gates of Tripoli and Qaddafi was on the ropes. A quick intervention then would have toppled the Mad Dog. Instead, Obama's dithering saved him, and now we are left with a bloody stalemate abroad and tortured definitions of "war" at home.

Gateway Drug: NY Times Finds New Law School "Scandal""

All of the law bloggers, most of whom are law professors fwiw, are writing about this NY Times story about merit scholarships among some of the nation's (ahem) lower tier law schools. To attract better students, some law schools offer scholarships, sometimes amounting to a full ride, with the proviso that students maintain a B average to keep the scholarship dollars flowing. As maintaining a 3.0 in law school is not the easiest thing to do, many scholarship students find themselves losing their grant money mid-way through school. This is considered scandalous, somehow. I probably wouldn't care normally, but (1) I used a merit scholarship to pay for at least a third of my law schooling and (2) the Times focuses on my alma mater as being an example of What's Wrong With The System. Which of course means (eyes narrowing) this one's personal

LIKE a lot of other college seniors, Alexandra Leumer got her introduction to the heady and hazardous world of law school scholarships in the form of a letter bearing very good news. The Golden Gate University School of Law in San Francisco had admitted her, the letter stated, and it had awarded her a merit scholarship of $30,000 a year — enough to cover the full cost of tuition.

To keep her grant, all that Ms. Leumer had to do was maintain a grade-point average of 3.0 or above — a B or better. If she dipped below that number at the end of either the first or the second year, the letter explained, she would lose her scholarship for good.

“I didn’t give it much thought,” she said. “I didn’t think it would be a challenge.”

Her grades and test scores were well above the median at Golden Gate, which then languished in the bottom 25 percent of the U.S. News and World Report annual rankings of law schools.

How hard could a 3.0 be? Really hard, it turned out. That might have been obvious if Golden Gate published a statistic that law schools are loath to share: the number of first-year students who lose their merit scholarships. That figure is not in the literature sent to prospective Golden Gate students or on its Web site.

But it’s a number worth knowing. At Golden Gate and other law schools nationwide, students are graded on a curve, which carefully rations the number of A’s and B’s, as well as C’s and D’s, awarded each semester. That all but ensures that a certain number of students — at Golden Gate, it could be in the realm of 70 students this year — will lose their scholarships and wind up paying full tuition in their second and third years.

Why would a school offer more scholarships than it planned to renew?

The short answer is this: to build the best class that money can buy, and with it, prestige. But these grant programs often succeed at the expense of students, who in many cases figure out the perils of the merit scholarship game far too late.

Let's get one thing straight. Golden Gate is not an elite law school. I say this with all due respect to my professors and fellow alumni. On a good day, it's maybe a third-tier law school. No one is sitting around right now losing sleep over choosing whether to go to GGU or Stanford Law. There are a couple dozen top law schools that can fill their classes with people who can do the work and pay full freight. Admissions officers at a place like GGU, on the other hand, know that they could easily fill their classes with mediocrities who can't pass the Bar Exam. So they aggressively court students. My God.

Alexandra Leumer, the girl who is the focus of the story, is typical of the sort of today's coddled college graduates who think their (minor) failures should be the subject of a class action lawsuit, or at least a NY Times story. First of all, GGU is absolutely transparent about the fact that you have to keep your grades up in order to keep the scholarship going past the first year. My reaction was "Boy, I better get at least a 3.0!" (incentives, and all that). Leumer, on the other hand, thought "How hard can that be?" Well, it turns out to be pretty hard. And the students who find it hardest are often the ones who walk in thinking it won't be hard. Surprise! This isn't some goofy sociology course where everyone gets an "A" for empathy. Second, and more important, Leumer did not have to pay a penny in tuition for her first year of law school! Honestly, where's the damage here? There's some dark rumbling about how GGU's grade curve essentially "prices out" many scholarship students, but it's not like the professors know who is who when they are grading exams.

I guess if you are Harvard or Yale Law School you can try to pretend that The Law is some kind of noble, elevating cause, but really it's a job and schools like GGU work to prepare people for that job, rather than pretend everybody is a junior Judge Cardozo. It's a much more practical approach to the law that, no doubt, turns off some of the loftier members of the guild and their brothers in the media.

Cha$ing Ju$tice

Via the California Appellate Report, here's an amazing 9th Circuit opinion which imposes some expensive sanctions on some high profile California plaintiffs attorneys who tried to use a Nicaraguan default judgment to enforce a half billion dollar judgment against Dole Food and Shell Oil: In Re: Girardi

Thomas Girardi and Walter Lack are high-profile California lawyers. Amongst their other legal pursuits, they (and their firms) attempted to enforce a $489 million default judgment allegedly entered by a court in Nicaragua against Dole Food and Shell Chemical based upon the effects of a particular pesticide upon banana plantation workers. The problem, however, was that the default judgment was expressly entered against non-existent entities called "Dole Food Corporation" (not Dole Food Company) and "Shell Oil Company" (not Shell Chemical Company), and the reason the default was entered in the first place was because the Nicaraguan court didn't allow the real companies to prevent the defaults because it wasn't against them.

Which obviously makes it a challenge to thereafter attempt to enforce the foreign judgments in the United States against the real defendants. But Girardi and Lack (and their firms) attempt to get around this problem by using a Spanish "translation" of the judgment that helpfully uses the words "Dole Food Company" and "Shell Oil Company" when they file suit in California. But the district court dismisses the suit, saying these aren't the right entities.

Undeterred, Girardi and Lack appeal, and continue to say that the default judgment's against the right entities, even though it's not.

There's a lot of sleazy behavior that attorneys engage in, but I think one of the worst is when they try to obtain a court judgment by this sort of stealthy subterfuge.

The full opinion is here.