Oliver Wendell Holmes Jr. Quotes – The Quotations Page

Oliver Wendell Holmes Jr. Quotes – The Quotations Page: “Our test of truth is a reference to either a present or imagined future majority in favour of our view.

Oliver Wendell Holmes Jr.”

Controversial Succession Plan for Congress in Emergencies

In an article by JIM ABRAMS, Associated Press Writer, entitled “Congress Criticized Over Succession Plan” we have further evidence of planned usurpations of the U.S. Constitution – here again involving a proposed amendment to the U.S. Constitution contrary to all of the principles for which that wonderful document stands.

As Abrams reports, “The Continuity of Government Commission”, headed by former Senator Alan Simpson from Wyoming (here is a sample of Mr. Simpson’s “erudite” remarks) as well as Lloyd Cutler, former presidential adviser to various presidents, have backed approval of an amendment to the U.S. Constitution according to which the governors of the individual States could appoint members of Congress in an emergency situation.

This absurd idea has been opposed, even by Republicans.

Below are two men you can add to your list of the really “good guys“. [Note that I personally have no partisan preference, but on the pages of LawPundit, we will separate the “good guys” from the rest, regardless of their political party.]

As Abrams writes:

“House Judiciary Committee … Chairman Jim Sensenbrenner, R-Wis., and Rules Committee Chairman David Dreier, R-Calif., prefer quick elections of new members instead of allowing governors to appoint House replacements. Appointments would erode the House’s status as a fully elected body, they said.”

further, quotes Abrams:

“I am concerned that beneath its plain-brown wrapper lies the constitutional equivalent of a computer ‘virus’ or ‘worm,'” Dreier said at a recent hearing on the issue. Dreier and Sensenbrenner have proposed that elections be held within 21 days in the event that 100 or more members are killed.

And finally,

A constitutional amendment,” Sensenbrenner said at a hearing, “would accomplish what no terrorist could, namely striking a fatal blow to what has otherwise always been ‘the People’s house.'”

Hear, hear, Mr. Sensenbrenner and Mr. Dreier. You are apparently men who understand the superb and necessary legal structure underlying the United States government, which can not be torpedoed for the sake of ephemeral problems.

The Perfidious Senate Bill S 1558 IS

In my previous posting on Spam and Spam Laws, I already noted that the US Congress had adopted a path of encroachment on the powers of the other branches of government, one path of encroachment being the numerous fairly recent Constitutional Amendments passed regarding the Presidency and the other path of encroachment being the legislative assault on judicial review, i.e. the means by which the judiciary department of the U.S. government performs its “checks and balances” on the legislative department, as forseen by the logic of Madison’s Federalist Paper Number 51, as reproduced in part in my previous blog posting.

Let us take a look at the perfidious bill, S 1558 IS, introduced in the Senate by a man named Wayne Allard of Colorado as the so-called Religious Liberties Restoration Act. You can find this bill at the graciously named website, Stop Liberal Judges, which by its very name already shows that the powers of the judiciary are intended to be encroached and usurped by this bill.

Section 3(d) of that bill provides:

EXERCISE OF CONGRESSIONAL POWER TO EXCEPT- The subject matter of subsections (a), (b), and (c) are excepted from the jurisdiction of Federal courts inferior to the Supreme Court.

In other words, all of the provisions of this bill are to be excluded from judicial review by the Federal courts.

I could not imagine that any man trained in law and having even the remotest understanding of the structural system of American government, as explained by Madison in the Federalist Paper Number 51, could sponsor such a perfidious bill in the name of religion, so I looked at this man’s biography, finding indeed that he was not trained in the law, but rather in veterinary medicine.

Let me say this, as someone trained in the law, that I would not feel competent to be administering medicine to your pets at home or to your animals on your farm. That is not my expertise, but the realm of the vets. I wish vets such as Mr. Allard would take the same view with respect to the law and with respect to the fabulous structural legal system in America, as described by Madison, which has made the United States such a great country for more than 200 years.

The sadness of this story is that Mr. Allard is trying to do what he thinks is the “right” thing and in the process – if successful – is destroying the very foundations of that very same great country that he thinks he is trying to defend.

If these kinds of assaults on the separation of powers and the system of checks and balances are ever successful, then the United States will cease being the leader of democracy in the world, but will join the ranks of tyrants, with majorities exerting their ephemeral whims on the populace, just as a herder of animals does on the ranch. Animals are not subject to the rule of law, but humans, at least in the United States, still enjoy its protections.

When judicial review is eliminated, the tyranny of legislatures is not far behind and the rule of law will disappear.

I suggest Mr. Allard stop campaigning ceaselessly in Colorado (his own website boasts that he spends more time there than in Washington) but rather that he make himself familiar with the Federalist Papers, read them, and try to understand what Madison was talking about. Indeed, this suggestion goes out to all members of the US Congress, regardless of your political party. FIRST, understand your job. THEN, do your job.

Separation of Powers – Checks and Balances


Whatever the advantages of blogs may be, one of the disadvantages is that it gives many people the opportunity to express opinions on subjects which they have not studied in sufficient detail and about which they are thus resultantly less competent to pass any informed judgment than if their voices had come from the standpoint of considered and well-researched reason. Blog postings on the Presidency abound – but of what value are they?


I am in the process of reading The American President by the Kunhardt clan, ISBN 1-57322-149-X (it was also televized). It is better to FIRST understand the Presidency (something not apparent in many blog postings about US Presidents) and THEN to voice one’s opinion on the subject. [Please note in Amazon that if you enter ISBN numbers with the dashes included you will get ZERO results – you have to write the ISBN together without hyphens as 157322149X in the search box].

In a chapter entitled “The Balance of Power”, the Kunhardts discuss the Presidents James Madison, James K. Polk (greatly underrated President whose expansion of US territory during his administration “made” America territorially what it is today), William Howard Taft, and, surprisingly, perhaps, under this heading, William Jefferson Clinton.


In discussing the brilliant James Madison, the Kunhardts refer to the Federalist Papers, eighty-five essays which Madison coauthored with Alexander Hamilton and John Jay in the years 1787 and 1788 in order to convince New York State delegates to adopt the US Constitution.

In one of these papers, Federalist Paper Number 51, Madison writes as follows under the title “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments”: [this is our selection of text and it is our emphasis in block type – you MAY have to concentrate a bit to understand the text, it is out of another era]:


TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places….

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others….

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions….

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department [the President] and the weaker branch [Senate] of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? …

There are, moreover, two considerations particularly applicable to the federal system of America….

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [LawPundit note: Federal and State governments], and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself….”

We will in future postings address some modern issues in light of Madison’s statements in the above Federalist Paper.

Legality of Hyperlinks

Michael Froomkin writes:

Discourse.net: “My own personal view is that a hyperlink is and should be every bit as illegal as a footnote in an academic article.”

Correct, presuming that the hyperlinked page is intended as being public on the original website.

If people do not want access to be made to their pages by hyperlinks or otherwise, there are developing technologies to prohibit this.

One technology to prohibit deep-linking and scouring of databases is found at Networksolutions’ WhoIs.

If you have not tried it yet, go to WhoIs and enter a known domain name e.g. lawpundit.com. This will then take you to a page where you have to enter a randomly created string of letters and/or numbers to access the desired information page, which keeps the page from being scoured by robots or from being deep-linked by websites attempting to use the WhoIs database for their own website pages. I am not an expert on these types of protections, but it seems to be very effective.

It is too much to ask of users to read the “fine print” of every website he or she visits to find out what can ostensibly be linked to and what can not. That is simply not a practicable viable legal solution.

Senate Anti-Spam Bill passed – Can Spam Act (S. 877)

Via Tech Law Advisor, via Michael Wong, and via Zachary Rodgers, I was directed to Roy Mark at Internet News and his article of October 23, 2003 on “Senate Anti-Spam Bill Ups Ante for House Action”.

CAN SPAM ACT (S.877) – US Senate passes Anti-Spam Bill, Not Yet Law

As reported by Mark, the US Senate has finally approved “the first ever federal anti-spam legislation” on a 97-0 vote (the zero tells you that any Senator voting AGAINST an anti-spam proposal could probably have kissed his re-election chances goodbye). The CAN SPAM Act (S. 877) (CAN SPAM is an acronym for CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKETING) was co-sponsored by Senator Conrad Burns (Republican, Montana) and Senator Ron Wyden (Democrat, Oregon).

According to this bill, commercial bulk e-mailers violating the law would be subject to civil and criminal penalties. The bill defines spam as an “unsolicited commercial electronic mail message” which “is not a transactional or relationship message” and which “is sent to a recipient without the recipient’s prior affirmative or implied consent“.

Senator Charles Schumer (Democrat, New York) championed an amendment added to the bill which directs the FTC (Federal Trade Commission) to develop a federal “do not spam list” similar to the National Do Not Call Registry.

Senators Orrin Hatch (Republican, Utah) and Patrick Leahy (Democrat, Vermont) added criminal provisions to the bill ranging up to five years in prison for some of the most insidious common spamming practices.


Here is a press release found at Senator Conrad Burns’ website:

Press Release October 22nd, 2003


Legislation gives consumers more control over unwanted e-mail, promises stiff punishment for senders of unlawful, deceptive spam

Washington, DC – U.S. Senators Conrad Burns (R-Mont.) and Ron Wyden (D-Ore.) today won unanimous Senate approval of the bipartisan CAN SPAM Act of 2003 (S. 877), aimed at helping American consumers deal with the growing problem of unsolicited e-mail or “spam.” Wyden and Burns have worked for more than three years on legislation to curb spam, which constitutes nearly half of all e-mail traffic today. The legislation passed by the Senate today includes a number of tough civil and criminal penalties against the senders of unlawful unsolicited e-mail, and addresses a number of other issues including the idea of a “do not spam” list and special warnings for pornographic messages.

“This is something we have been working on for some time now,” said Burns. “There has been an ongoing push from all sides on this issue, and the time has finally come. The overwhelming message from consumers and industry alike is that something needed to be done and I am happy to say that today we succeeded in that effort in the Senate.”

“Today, the Senate has sent the message that the government is going on the offensive against kingpin spammers,” said Wyden. “Americans are tired of just watching and fretting over in-boxes clogged with unwanted e-mail, and this legislation is an important step toward giving them more control.”

Worldwide, more than 13 billion spam e-mail messages are sent each day. Costs in the United States alone have been estimated at $10 billion per year, due to expenses for anti-spam equipment and manpower and lost productivity. The Burns-Wyden bill particularly targets deceptive messages sent by many large-volume spammers, who often hide their identities, use misleading subject lines, and refuse to honor opt-out requests from spam recipients.

Following is a description of the provisions of the bill approved by the Senate today.

Civil provisions of the bill include the following:

-a requirement that senders of marketing e-mail to include a return address so the consumer can tell them to stop;

-a requirement that unsolicited messages include clear notification that the message is an advertisement, and a valid physical postal address;.

-a prohibition on false and deceptive headers and subject lines – so that consumers can immediately identify the true source of the message, and so that Internet companies can identify the high-volume senders of spam;

-a provision to triple the monetary damages imposed on spammers who engage in particularly nefarious spamming techniques – such as using automatic software programs to “harvest” e-mail addresses from Internet websites, and using “dictionary attack” software to send messages to a succession of randomly generated e-mail addresses in search of real recipients; and

-strong, multi-pronged enforcement by the Federal Trade Commission, state Attorneys General, and Internet service providers (ISPs), with the potential for multi-million dollars judgments.

Additional criminal provisions, authored by Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) were added into the legislation by amendment on the Senate floor. The Hatch/Leahy criminal provisions create several tiers of penalties, ranging up to 5 years in prison, for several common spamming practices, including:

-hacking into somebody else’s computer to send bulk spam;

-using “open relays” to send bulk spam with an intent to deceive;

-falsifying header information in bulk spam; and

-registering for 5 or more email accounts using false registration information, and using these accounts to send bulk spam.

-sending bulk spam from somebody else’s Internet protocol addresses.

The Burns-Wyden legislation, with an amendment from Senator Chuck Schumer (D-N.Y.), also requires the Federal Trade Commission to report to Congress with a plan to implement a “do-not-spam” list, similar to the “do-not-call” list for which millions of Americans have already registered, and to share any potential drawbacks or difficulties with the implementation of such a list. The legislation also gives the FTC the authority to implement a do-not-spam list.

Other amendments to S. 877 include provisions to require the FTC to write rules for mandatory labeling of pornographic messages; a separate provision directs the FTC to consider mandatory labeling for unsolicited e-mail generally, as well as possible financial rewards for tech-savvy citizens who help trace hard-to-find spammers.

A number of anti-spam bills are currently moving through the House of Representatives. Wyden and Burns hope to work with their anti-spam counterparts in the House to send final legislation to the President’s desk this year.

[Let me say that I personally – and I am sure many e-mail users are like I am – find much commercial spam to be an odious, egregious violation of the personal sphere, daily confronting computer users with some of the basest elements that humanity can produce, and as far as I am concerned, the civil and criminal penalties for spammers of all ilk should be much higher than they are in this bill. These people daily and negatively and often substantially reduce the quality of my life as well as the lives of millions of others, and for that, the punishments should be as severe as possible. I personally find this bill to be much too soft.]


Bills must of course pass both houses of Congress to become law. Mark writes that the Senate anti-spam bill is not substantially different than competing bills “currently bottled up in the Energy and Commerce Committee“, chaired by Billy Tauzin (Republican, Louisiana).

It may thus be high time for the House of Representatives to get their spam-act together. But before we throw stones we must of course inquire as to what is the reason for the delay in the House Energy and Commerce Committee?

I read the following about that committee at NAW :

“while [it is] just the fifth in size in the House of Representatives with 57 Members, [it] has the broadest legislative jurisdiction of any committee in either the House or Senate, and is responsible for approximately half of all legislation introduced in the House.”

Presuming that work overload is one aspect of the delays in the House, we must ask what the reason for that kind of disproportionate job distribution in the House might be and why is that not changed, so that legislative tasks in the House are evenly distributed? Are some lawmakers more or lesser lawmakers than others? Hard to believe. Representatives in Congress should streamline their operations in order to serve as models fit for emulation rather than to serve as bad examples of organization. A corporate executive who so uneconomically split his manpower would be out on his ear in no time.

In any case, as Senator Wyden, sponsor of the Senate Bill stated: “Today, the Senate has sent the message that the government is going on the offensive against kingpin spammers,” said Wyden. “Americans are tired of just watching and fretting over in-boxes clogged with unwanted e-mail, and this legislation is an important step toward giving them more control.”

Better late than never.


Taking §102(a)(1) of the CAN SPAM ACT, I would like to show my editing suggestions to reduce the unnecessary verbiage increasingly found in Congressional legislation – are drafting and writing not taught in the law schools?

original text

(1) Electronic mail has become an extremely important and popular means of communication, relied on by millions of Americans on a daily basis for personal and commercial purposes. Its low cost and global reach make it extremely convenient and efficient, and offer unique opportunities for the development and growth of frictionless commerce.

text as edited by LawPundit retaining the above meaning and throwing out the verbiage

(1) Electronic mail (e-mail) has become an important daily means of personal and commercial communication for millions of Americans. Convenient and efficient due to its low cost and global reach, e-mail offers unique opportunities for the development and growth of streamlined commerce.

[Explanation of the editing above. Using both “popular” and “relied on by millions of Americans” is repetitive. Daily basis means “daily”. “Frictionless” commerce is not a “term of art” commonly used but rather appears to be a registered trademark – see Frictionless Commerce – talk about advertising for a commercial company through an anti-spam law. “Extremely” twice is like “very” overdone, see Volokh’s How to Write, where he suggests avoiding terms such as “very” as verbiage].

Google’s new Command – Define:

Via TVC Alert from Genie Tyburski at the Virtual Chase I find at Aaron Swartz’s Google Weblog that: “Google Glossary has gone live on the main Google site. Do a search for something like define elephant or define dna and you get back a definition with your search results. Search for define: dna or click ‘more results’ to see the rest of the definitions.”

I find that only the command “define with a colon”, i.e.


actually works – but I am in Germany, maybe it works otherwise elsewhere.

Entering that command in Google gives a fixed list of definitions of a given term on the web,

e.g. “define: boilerplate”, gives us the following list:

Standardized “fine-print” language in a contract or other agreement detailing terms and conditions.


A boilerplate document is created in word processing by assembling previously existing documents. Many routine business letters and contracts are assembled from boilerplate paragraphs.


Form language used in deeds, mortgages and other documents. Details can be added by individual parties.


Standard language in a contract.


Standard language that businesses routinely include in contracts. The other party to the agreement can sometimes negotiate to change or remove such provisions.


The language section of a bill or public act. With regard to an appropriation bill or act, typically provides for legislative intent or further legal clarification of the line-item appropriations. Boilerplate can also refer to the standardized or pro forma language that is used at the front of the bill or statute.


A term used to describe the standard terms and conditions on a purchase or other contract document.


Boilerplate is legal jargon for the form language used in deeds, mortgages and other documents. The boilerplate language is usually preprinted on the document itself; details are added by the individual parties.


Reports, form letters, and other prewritten documents that can be coordinated with mailing lists and other variable information to produce personalized hard-copy output.


Standard and essential contract terminology and clauses that are not subject to frequent change. Use of the term can be dangerous because it may lull contract parties into thinking they need not read the clauses, assuming no changes from previous contracts, or assuming the data are not significant.


Standard wording (for example, sentences or paragraphs in form letters or clauses in legal documents) that is held in storage. When needed, it can be used as is, with minor modification, or in combination with new material to produce tailor-made documents.


Standard copy that may be inserted in reports, foundation proposals, and other documents since it is unchanging and generally timeless. Also refers to legal forms which attorneys may use with standard situations. Topic areas:Fundraising and Financial Sustainability


from m-w.com: syndicated material supplied especially to weekly newspapers in matrix or plate form standardized text formulaic or hackneyed language


A colloquialism, used to identify standard terms and conditions incorporated in solicitations, contracts, or purchase orders.


A standard publishing contract, with no changes or addenda made by the writer or agent. The boilerplate should be considered a starting point only; usually changes will be made.


A standard text component of a document that requires few or no changes.


the standard terms and conditions on a purchase order, agreement or contract


Standard wording on mortgages and other documents.


sections of a proposal applicable to a variety of requests; e.g., organizational descriptions, professional resumes, etc.; often maintained by organizations submitting numerous proposals in order to reduce preparation time.


Text and/or graphics that appear in a report every time it is run. In some products this is called “constant” text or graphics.


Standard clauses and requirements incorporated into contracts (bid forms and purchase orders), which are derived from laws, or administrative procedures of state government.


Language from a previous document that a writer includes in a new document. Writers use boilerplate both to save time and energy and to use language that has already been approved by the organization’s legal staff.


Standard, non-controversial legal clauses, often required by regulatory agencies or state or federal law.


Refers to publishers’ standard contracts prior to any changes by an author or agent. Most publishers have a variety of boilerplate contracts to meet different needs. Boilerplates are always weighted in favor of the publisher and should be regarded by authors only as a starting point for hammering out agreeable terms.


standard formulations uniformly found in certain types of legal documents or news stories


thick plate iron used in the production of boilers


But be careful using this feature. If you plug in

define: lawyer


define: professor

you will see some unusual definitions.

How Google will get around these jokester’s definitions is another matter – depending on the algorithm they are using to try to create this online glossary.

This glossary feature is still quite limited.

Entering terms such as blawg and weblog gives zero results, although the term blog is defined.

The “define” feature in Google can be used to show very clearly that some aspects of “knowledge” and “communication” are relative to the content limitations on word-based expression.

We communicate by means of words, but these words often have no universal meaning and are “defined” in the brain of the reciever differently than they are defined in the brain of the sender, and the variance in definition is quickly seen when we look at the myriad definitions for commonly used terms.


define: law – (a seamless web – one of the first assignments that I give to law students in my classes is to write an essay on “what is law?”, after all, it is their chosen field of study, and the responses are as varied as the personalities that write them)

define: democracy – (wide diversity of opinion)

define: government – (make sure you read this to the end, it contains some beauties)

define: politics – (this has some mean ones in it)

define: freedom – (there are some creative ones here)

define: norm – (not easy to define, but something the law deals with all the time)

define: opinion – (the law-related definitions tend to be inexact)

define: precedent – (make sure to read the one from the Devil’s Dictionary)

define: purpose – (the best ones are at the end)

define: writing – (very weak list, but shows that writing is an artefact)

define: history – (some choice selections down the list)

define: religion – (a panoply of musings – note that the Oxford dictionary definition at the bottom of the list shows why we still need and use standard dictionaries – compare those definitions to what you otherwise read on that page)

define: God – (definitions found here are of course relevant to disputes about such things as the words “under God” in the Pledge of Allegiance – just what does the phrase mean?)

define: thought – (very few definitions, a rare commodity?) define: thinking fares no better

define: man – (oh dear, Google is lost here – the algorithm needs work)

define: woman – (an absolutely disastrous collection – if you did not already know what a woman was, would these definitions help you?)

As always, caveat emptor (see define: caveat emptor), which applies not only to physical goods we “buy” but also to what we “buy” as a matter of thought and ideas.

Google’s new command define: will never replace the standard dictionaries – unless the standard dictionaries are themselves used as the principal online sources, but this new command does provide some interesting insights into what people are thinking and writing, and it is quite good fun.

LawSites, The Volokh Conspiracy and How to explain blawgs?

LawSites (Robert Ambrogi) writes :

“How to explain blawgs? ‘Professorial behavior patterns.’

I missed Eugene Volokh’s day 2 BloggerCon panel on blogs and the law, but Doug Simpson reports that Volokh, commenting on why lawyers blog, said the motive is largely not monetary. Rather, many law blogs are what he called ‘prof blogs,’ written by professors or folks with ‘professorial behavior patterns.’ Not sure that fully explains all the entries on Denise Howell’s blawg list. I think the motive is, indeed, money for many lawyer bloggers. Not direct cash in the pocket, of course, but a payoff in greater exposure generally and greater credibility within a given field, leading somewhere down the line to more referrals, more clients and more — yes — money.”

“Gee”, as Prof. John Kaplan used to exclaim, using his favorite expression at Stanford Law School in my student days, “is that really true?”

Although few of us would doubt the general observation that mankind is a mercenary lot, I seriously doubt that “money” is the major impetus for blawging – yet – so I would give Eugene’s explanation of “professorial behavior patterns” a good deal of credence.

It would in fact seem to me that profess-or-ship is the ultimate in “punditry” and that is why one of the meanings given to the word “professor” by the online American Heritage Dictionary of the English Language, Fourth Edition (2000), at bartleby.com is “one who professes”.

The term “profess” in turn means “to affirm openly, declare or claim”, “to make a pretense of, pretend”, “to practice as a profession or claim knowledge of”, “to teach as a professor” e.g. to “profess literature”.

In fact, if in the full text search at Roget’s Thesaurus we plug in the term “pundit”, we get ONLY two entries returned, namely “scholar” and “lawyer”.

I would call that the thesauric punditry double whammy on a professor of law particularly, or to put it more simply, “he can really not do otherwise than blog”, it is in the nature of the “profess-ion”.

Remember, the lawyers (i.e. the legal beagles or their comparables in any culture) run things, i.e. the temporal world – and I think this says something about the value, importance and application of blogging in the future. Could a popular “blogger” of today be a “President” tomorrow? Probably. That is not necessarily a “cash” objective.

Spam and Spam Laws

In “Spam and the Spamming Spammers Who Spam Us” at AndrewRaff.com,

posted October 15, 2003 , Andrew Raff notes that:

“Unlike 38 other states, New York has no specific anti-spam legislation.”

If I may add to Raff’s comment, I would opine that even those states that do have anti-spam legislation have not passed laws which are technically specific enough and hard enough on violators to be effective against spammers. See here.


Spam is not simply a TECHNICAL problem, it is also a LEGAL and ECONOMIC problem. As a financial drain on the economic system, spam costs billions of dollars a year and yet, the spammers are not being correspondingly punished by our laws for the havoc they are wreaking and the economic costs they are engendering. Make the laws tough enough and the means to enforce those laws strict enough and much spam would stop immediately. Currently, spammers and the ISPs who profit from them get off with a wrist-slap and have no incentive to stop spamming. Strict laws targeting both spammers and ISPS with long jail terms and stiff fines would give them this incentive, fast.


Although everyone complains about spammers, the root of the problem is more easily sought with the legislatures, who throughout the country and the world are NOT doing their jobs properly, and this includes the U.S. Congress particularly, although state legislatures have not been earning their paychecks either, at least not in the spam-prohibiting area.

In fact, there is no branch of the United States government which deserves greater criticism for their performance over the last decades than the legislative branch of the United States. To some degree, it would appear that the U.S. Congress has lost sight of its proper job.


For reasons which are hard to fathom – the demonstrable fact is that Congress spends too much of its time trying to increase its own powers at the expense of the other branches of government, thereby neglecting its own work,


1. by trying to curb the powers of the President:

We see this by the one-too-many recent Constitutional Amendments dealing with limitations on the Office of the President of the United States. Congress seems to have a recent modern “fixation complex” on the Presidency.


2. by trying to bypass the Judiciary system through enactment of legislation which expressly provides for no judicial review of legislation, such as a bill recently introduced regarding the “Pledge of Allegiance” and other constitutional matters – as found here.

This long pattern of attempts by the Congress:

a. to usurp the tried-and-true system of separation of powers


b. to undermine the absolutely necessary system of checks and balances

– both of which have made America such a great and democratic country for more than 200 years –

are – at their foundation – very dangerous threats to the stability of the nation as a whole.

Such usurpations weaken the long-term structural substance of the United States for the sake of ephemeral short-term selfish political goals of one political party or the other. Just because some people do not like liberal (or as the case may be conservative) judges is no reason to destroy the legal fabric of the country. Similarly, just because some people oppose a President is no grounds to take away powers which that Office requires for its proper function. I would presume that legislators with a legal background would know this – or what are they taught in the law schools today?

We even see this attempted usurpation of executive powers in the language of recent Constitutional Amendments, which needlessly and one must say “ignorantly” – append the phrase “The Congress shall have the power to enforce this article by appropriate legislation”, thus cluttering up the otherwise beautifully worded Constitution of the United States with unnecessary, tautological and selfish modern verbiage of the worst sort. The words used here – “power to enforce” – refer to a power which is the power of the Executive Branch – it is NOT the power of the Congress. Congress can always pass additional legislation to give the Executive greater enforcement powers, but Congress itself can enforce nothing. These clauses are useless boilerplate. Legislators are merely empowered to pass laws. They are law-“makers”, excuse me, they SHOULD BE lawmakers. Do many good men at Capitol Hill seemingly not know what THEIR job is?

In the process of concentrating on the other two branches of government, and confusing their legislative role with the judicial and the executive branches, the U.S. Senate and the House of Representatives have – on the other hand – not been paying sufficient attention to the JOB at hand, for which they are being paid, and which is foreseen for the legislative branch by the U.S. Constitution.


to pass viable legislation,


1. to enact laws that accord with the U.S. Constitution (the determination of the constitutionality of laws is the JOB of the Judiciary), and, thereby to deal with problems which are increasingly surfacing in the modern world,


2. to draft such laws as permit effective enforcement of such laws by the executive branch of government (enforcement of such laws is the JOB of the Executive).


So here is my recommendation to the men and women on Capitol Hill ….

When my spam box is empty of absolutely undesired and undesirable junk mail from various and sundry fraudulent agents and scams and pushers of all kinds – and I am getting something like 50 spam emails a day, with no end in sight – I will reconsider my opinion of the job being done in the Senate and the House. Currently, from my viewpoint as a citizen, I see nothing optimistic happening and I am faced with a mountain of spam email each day because – in part – the people in Congress are sitting on their you know whats. Until this spam ends, the Congress and the state legislatures – consisting mostly of lawyers – should put their legal noses to the grindstone and start doing what they are being paid to do, rather than trying to ruin the structural substance of the nation by trying to tell the President and the Courts what THEY are supposed to do. Frankly, I think the President and the Judiciary are doing a better job – by a mile – than the legislative branch, whose “main claim to fame seems to be the campaign” (with apologies to Longfellow).

It is time to put an end to spam.

The onus of carrying out that job is directly on the legislative branch of government, and nowhere else.

RFID – Radio Frequency Identification

Bag and Baggage – Denise Howell, appellate and intellectual property lawyer  : raises the prospect that many legal issues will be raised by RFID. RFID is an acronym for Radio Frequency Identification. RFID is a wireless technology which can be installed in a chip implanted e.g. in an organism or a commercial product and can thereafter be used for “tracking” that organism or product.

Denise writes e.g. that

“RFID usage and registries need to control and protect access. You may want to know immediately if your child’s car seat has been recalled, but don’t want others to know about the adult videos you rent.”

There is no question that RFID will be implanted e.g. in cars to stop the stealing of vehicles. Wal-Mart is at the forefront of the application of this technology in beginning to use it for inventory management, but its further applications seem to have no limits.

RFID will be a substantial legal issue of the near future.

Is God recognized "under Law"?


60 million students still recite the Pledge of Allegiance every school class day morning and this educationally “cultural condition” persists in spite of a 1943 Supreme Court decision (West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) ) finding that it was unconstitutional to require students to stand and recite that very same Pledge of Allegiance.

Justice Jackson wrote for the majority of the US Supreme Court:

“Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.”

[Comment by Andis Kaulins to the above: note that Justice Robert H. Jackson wrote this in 1943. In 1945 he was the American Chief of Counsel prosecuting Nazi leaders before the International Military Tribunal in Germany. I would, without intending disrespect to anyone, call his constitutional vision the view of the “winners”. I mean this sincerely. I think there is something conforming to a “victor” mentality. Victors resist domination.]

Justice Frankfurter in the minority, dissenting from the majority opinion of the Supreme Court, as follows:

“Law is concerned with external behavior and not with the inner life of man. It rests in large measure upon compulsion. Socrates lives in history partly because he gave his life for the conviction that duty of obedience to secular law does not presuppose consent to its enactment or belief in its virtue. The consent upon which free government rests is the consent that comes from sharing in the process of making and unmaking laws. The state is not shut out from a domain because the individual conscience may deny the state’s claim. The individual conscience may profess what faith it chooses. It may affirm and promote that faith-in the language of the Constitution, it may ‘exercise’ it freely-but it cannot thereby restrict community action through political organs in matters of community concern, so long as the action is not asserted in a discriminatory way either openly or by stealth. One may have the right to practice one’s religion and at the same time owe the duty of formal obedience to laws that run counter to one’s beliefs. Compelling belief implies denial of opportunity to combat it and to assert dissident views. Such compulsion is one thing. Quite another matter is submission to conformity of action while denying its wisdom or virtue and with ample opportunity for seeking its change or abrogation. “

[Comment by Andis Kaulins to the above: note, paradoxically, that it is Felix Frankfurter, the Jewish Justice, in 1943, who picks the alternative course of interpretation to Jackson, a course which majority opinion writer Justice Jackson predicts to lead inexorably to an end result that always leads to “extermination” of the dissenters, which is what has happened historically to the Jews, and in Nazi Germany, almost led to their complete elimination by 1945. Hence, I would, without meaning disrespect to anyone, call Frankfurter’s constitutional vision as the view of the “losers. I mean this sincerely. I think there is something conforming to a “victim” mentality. Victims invite domination.]

Daily Kos, based on a story by James Vicini in Yahoo News, reports that the Supreme Court of the United States (abbreviated by some as SCOTUS) has agreed to review the 9th Circuit Court of Appeals (California etc.) decision requiring that the words “under God” be struck from the Pledge of Allegiance , a pledge which is force-recited by children in schools. In my opinion, this is nothing but indoctrination. Children ARE impressionable and indoctrinatable – that is why the Pledge is mandated. Or do you – as adults – recite the Pledge of Allegiance every morning at your place of work? How about starting your professional day this way? – Would that be indoctrination? You bet.

From the standpoint of the RULE OF LAW, this is a tough case for law and legal theory, regardless of your religious conviction or political affiliation. It is a highly volatile, emotional subject. I personally am ambivalent about the wording of the Pledge of Allegiance, regarding it in EVERY case in its present use in the schools to be a “ritualized indoctrination” contrary to the free speech right of the 1st Amendment.

Nevertheless, and perhaps surprisingly, I think that the 9th Circuit’s record of being almost always and often unanimously overruled by the US Supreme Court will continue in this case, precisely because the 9th Circuit – in my opinion – erroneously based its decision on the ratio decidendi (reasoning for the decision) that the words “under God” are “an unconstitutional government endorsement of religion“. I think that holding is false.

The actual legal problem – in my opinion – is the constitutionality of any mandated or semi-required “ritualized loyalist oaths” to start the day in our schools and NOT the content of them. In school in the US, I always regarded the “Pledge of Allegiance” to be forced upon me, even though I quite agreed with the wording of the recitation. But why should ANY recitation of this kind be the rule in our schools? and if so, why not truly make them “actively voluntary”? After all, the job of the schools is to educate, not to indoctrinate. When I was in the United States Marine Corps, I taught several “high school graduated recruits” who could STILL not read and write. We have severe problems out there beyond the emotional pushing of political agendas on the educational level. The schoolteachers should stick to their jobs and leave “political education” to the political science teachers.

This question of “force” was in fact – in my opinion – the underlying basis for the recent court decision that a sculpture of the Ten Commandments had to be removed from the Alabama state judicial building. Few Americans have anything against such a sculpture, but actively and intentionally putting such a sculpture into the state judicial building forces the issue upon EVERY visitor – and that in fact is the intent of such a sculpture. What if the visitor is not a Christian? but a Hindu or Buddhist? etc. We are equally offended by our Christian presence in countries where the Law and the Church are not separated or run by other religions. In many such countries, we are judged by the rules of those other men’s religions, and NOT by the rule of law – and we feel nothing but contempt and disgust for such systems. Or do you think that stoning people to death who commit adultery is anything but savagery? So we should not begin to install similarly barbaric systems in our own nation. The wise keep religion out of political and legal life.


Is “God” recognized “under Law”?

This is a tough question.

The Declaration of Independence of the United States has references to “laws of nature”, “nature’s God”, “Creator”, “Supreme Judge of the world”, “Divine Providence”.

The Constitution recognizes the existence of religion by requiring that we keep the Church and State separate.

Specifically, it also requires that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. So if “religion” is recognized, does this mean that “God” is thereby also recognized?

Sworn oaths are often accompanied by placing one’s hand on a holy book. The President of the United States places his hand on the Bible when taking the oath of office. In the case of sworn oaths generally, this need not be the Bible, but can be some other “holy book” or “symbolic act” (raising one’s right arm, e.g.). See e.g. the New Jersey Notary Public Manual.

In the case of sworn oaths, “God” is recognized indirectly.

If we say “under God”, we are of course recognizing God directly. This recognition is fairly modern in the Pledge of Allegiance, a pledge which has existed only since the year 1892 and was first adopted by Congress in 1942. The statement “under God” came into the Pledge of Allegiance in 1954. For stories about this development see Bill Broadway at the Washington Post, and Tony Mauro at USA Today.

The words “under God” are in fact relatively innocuous (i.e. harmless) as they stand in the Pledge. The phrase merely affirms the majority view of the nation – that the USA is a country “under God”, i.e. consists mainly of people who believe in a Divine Being or Supreme Force, an Almighty, a “God”. The words do not identify any particular religion and would thus arguably include all religions believing in an all-encompassing pervasive force as the foundation of the universe or even NO all-encompassing system – i.e. SOME system, whether positive or negative is at the root of all of mankind’s views of the universe. Even an anti-God is a God, i.e. a belief system. In this sense, the use of the word “God” in the Pledge of Allegiance is not selective and does not “establish” any particular religion, contrary to some closed-minded religions terrorizing the world today, which regard people not following THEIR “god” as non-believers. Hence, the 9th Circuit’s view that the Pledge itself (we are not talking here about the USE of the Pledge in schools – which is a different matter) is an “unconstitutional government endorsement of religion” can not be supported. Rather, the words “under God” correctly identify the nature of the American nation. People are still free to be atheists in this nation if they wish and no state religion has been “established”, nor are their rights in any way limited by the Pledge of Allegiance per se. The use of this Pledge is a different issue: As Mauro writes:

“Neither Congress nor President Dwight Eisenhower, who signed the bill, made any bones about the religious intent of the added words. ‘From this day forward,” Eisenhower said, “the millions of our schoolchildren will daily proclaim … the dedication of our nation and our people to the almighty.'”

As admirable as this formalized patriotism may be, it is surely not democratic to force millions of schoolchildren to do a morning political chant. In fact, one originally gave the Pledge of Allegiance with an arm signal very similar to that used in Nazi Germany. During WWII, the similarity of signals was too close – and the practice was changed. Time has changed even moreso since then. What good old Ike did then, is no longer modern. The Pledge of Allegiance can stand as is – it should just not be force fed at the schools.

Of course, millions of Americans have nothing against the actual wording of the Pledge of Allegiance, nor do I. But that is not the LEGAL issue. On a scale of sensible priorities, the RULE OF LAW still ranks far above the rather unimportant desirability of words in a ritualized speech. So, when we make decisions on matters of substance of this nature – we should decide – always – for the higher good and not for the lower, if also excellent, lesser good.

Indeed, we should reject with understanding but firm resolve such laws submitted to Congress which – for the sake of trifles in this case – are, by their effect, actually trying to subvert and undermine the entire time-tested federal system of “checks and balances” in America by working to eliminate judicial review of laws and by seeking to defederalize the established federal system to give state governments (and thus the local “good old boys”) more power and control over their citizens, which always leads to more tyranny than democracy. Such attempts are far more injurious to the country in the long run than any question of the words “under God” in the Pledge of Allegiance. What would America be like if every State ran its show the way only THEY wanted? God forbid! – you see, the use of God can go both ways. e.g. Marriages and/or Divorces recognized in one state would – logically – not be recognized in another, etc. It would be chaos. United – we stand, divided – we fall – and we would fall hard.


Let us look at this matter from the “other” end of the spectrum,

TBP, Esq. at

unbillable hours cites to

Say What?! – A weblog of classic humor from U.S. District Judge Jerry Buchmeyer and the item concerning “Jurisdiction: Serving Satan [in] Mayo v. Satan & His Staff”. Does the Devil have judicial standing? Well, er, no….

I think that judicial holdings acknowledging neither the LEGAL existence of Satan nor the LEGAL existence of God – make it quite clear that God does not exist “as a matter of law”. The wonderful example in footnote 3 of the above article – should give cause for zealously religious people of any denomination to ponder the question of why many intelligent people think it is sensible to separate Church and State, and similarly, Church and Law. The phrase “under God” does not acknowledge that God actually exists, it merely records the fact that the USA is a nation which believes in God. That is a different matter.

When Church and State or Church and Law are actually mixed, especially as to the “laws in force”, then trouble invariably appears, because then everyone calls on the Almighty to justify his or her particular wishes and/or even dastardly deeds and actions. This of course leads not to a God’s peace, but to a Devil’s war. We have such a war ongoing at present worldwide with people trying to install a God’s government which looks much like a Devil’s work.

Footnote 3 above gives one example of a criminal praying to his Maker to let him get away with a crime “just once”. Indeed, we see some spiritual leaders recently in the news doing just that (the priest sexual abuse cases, religious fundamentalism, etc.). What many people call “God’s will” is just their own personal preconception of what THEY want. It may have nothing to do with what God wants.

The religious fanatics active on our Globe today are a typical, disastrous example of mankind misusing religion for despicable, inhuman ends and and foolishly equating their imagined temporal State with the realm of a religious God.


So, do God and the Devil exist as a matter of LAW?

The answer can only be “no”.

God is not a person. God is not born and does not pass away. God does not live “anywhere” and has no “known address”. God pays no taxes. God can not sue or be sued. God can not be served a summons. God can not be called upon to serve as a witness in a court of law. God can not be made to intervene in an action. God can not be made the subject of laws which he has to obey or not obey. Law exists “under God”, yes, but not vice versa.

The Justices of the Supreme Court, though we may not agree with them all politically, are not idiots, and there is wisdom among them.

Will they throw God out of our country? contrary to almost unanimous opinion?

The answer is no.

Will they toss the Pledge of Allegiance out of the schools, contrary to the wishes of 90 percent of the population?

The answer is no.

How will they then decide legally to achieve those objectives?

The conclusion can only be:

1. The phrase “under God” in the Pledge of Allegiance will be found

NOT to establish a religion and thus NOT to contravene the Constitution of the United States.

The 9th Circuit will be unanimously overturned AGAIN.

2. The Pledge of Allegiance will be found absolutely permissible in the schools as long as it is NOT mandatory to be recited by any student who does not wish to do so, which would otherwise be contrary to the 1st amendment.

Or to put it in the words of Carl Sandberg – I paraphrase – the windows and doors are either open or shut, and everything remains the same as it always was.

Paul, Weiss, Rifkind, Wharton & Garrison

This article was first posted to DVDPundit on October 7, 2003. I re-post it here to give a bit of background about yours truly, the LawPundit blogger and the law firm with which he was affiliated.

Paul, Weiss, Rifkind, Wharton & Garrison [known in the trade as Paul Weiss], the international New York City based law firm which I joined as an associate after graduating from Stanford Law School in 1971, had, and still has, inter alia, a strong practice mixture of corporate, information technology and entertainment law. See the Vault and Excite for a profile of the firm.

Some years after I left the firm, Paul Weiss played an important advisory legal role in the development of the DVD standard (Digital Versatile Disc) which we use today.

This was not the only activity of the law firm in the newly developing field of digital information technology.

Indeed, Paul Weiss represented the National Music Publishers Association [a client for whom I did quite a bit of work as associate in my years with the firm] and it was the NMPA with whom Napster settled in the famous Napster copyright infringement action several years ago. Paul Weiss and the NMPA are still very much in the news currently.

Similarly, in a recent peer-to-peer file sharing copyright infringement case, Paul Weiss represents the Motion Picture Association of America (MPAA) in a suit involving Grokster and Kazaa.

Paul Weiss has also represented the EMI Group and EMI Music.

Moreover, Paul Weiss has a long-standing relationship to AOL Time Warner, the largest communications company in the world, formed through decades in part by the efforts of Paul Weiss lawyers, such as Peter Haje, who became Executive Vice President and General Counsel of Time Warner and thereafter Counsellor to AOL Time Warner.

Essentially, the law firm helped to make the music, movie and entertainment industry what it is today.

Politically, Paul Weiss has always been known to be among the most “liberal” of all the so-called major US law firms. The ranks of Paul Weiss law firm partners included Adlai Ewing Stevenson, Lloyd Kirkham Garrison, Ramsey Clark, Morris B. Abram, Arthur Goldberg, Edward N. Costikyan, Theodore Sorensen (today, of counsel to the firm), and Judge Simon H. Rifkind, lawyer inter alia to Jacqueline Kennedy Onassis and Charles H. Revson of Revlon, and the last “patriarch” of the firm. It is consequently a remarkable situation that the firm Paul Weiss now is seen as representing the copyright-protected “establishment” recording industry. How did this paradox situation come to be?

To get an answer to this question, we must look at a “Paul Weiss centered” history of the entertainment business, broadly defined, in the past 100 years.

The beginnings of the firm were tied to Paul Weiss clients who developed television in its infancy. Additionally, founder John Wharton was the lawyer and executor for songwriter Cole Porter, who wrote the music for Al Jolson in The Jazz Singer, the first “talking” motion picture. The connection to cinema thus came early and subsequent exercisable expertise in a profession is of course largely a question of experience. So the firm got in on the ground floor of the entertainment business many years ago.

Logically, Paul Weiss then became attorneys for famous artists and fashion designers such as Andy Warhol and Calvin Klein, while other partners of the firm such as Robert H Montgomery served as counsel to movie stars like Marilyn Monroe.

The emphasis on new technology, glamour, entertainment and politics thus has a long law firm tradition at Paul Weiss. This flair was also combined with a foresight toward coming societal developments.

For example, Paul Weiss was the first major law firm in New York City to move out of crowded Wall Street into Midtown Manhattan, signalling a move followed by many other major New York City law firms.

Paul Weiss was also the first major law firm to hire a black lawyer – William Coleman, Jr. – who finished first in his class at Harvard Law School in 1946 and who commuted to Paul Weiss in New York City from Philadelphia, his home town, because no major law firm in Philadelphia would hire him. For the full story see William Coleman, Jr.

All commentators have pointed out that Paul Weiss is “different” than all other big law firms, but defining that difference has not been easy. Perhaps the core of the difference was reflected in Judge Rifkind’s repeated policy statement “that a law firm is a profession and not a business organization,” quoted by Michael Orey, in Paul, Weiss: Profits and Principle, The American Lawyer, June, 1987. I certainly agreed in my younger days.

In any case, it is no suprise that Paul Weiss was actively involved in developing the DVD standard – this involvement was the continuation of a tradition that has been going on at Paul, Weiss for many decades. It is not by chance that Paul Weiss represents the music and entertainment industry TODAY – it helped to make that industry what it is YESTERDAY. But of course, times change and industries change, and we are in a period of digital transformation.

Hence, the scope of coverage of DVDPundit reaches beyond simple news and reviews of music, movies, information or software found on Digital Versatile Discs (DVDs). DVDPundit’s ambit also spans the legal and political IT world, including copyright and piracy issues, hardware and software standards, and the entire world of DVD.

Free Speech Rights of Attorneys

Look out, lawyer bloggers….

The blog of

A Sassy Lawyer in Philippine Suburbia

refers to a decision just handed down by

New Britain Superior Court Judge William P. Murray in

Notopoulos v. Statewide Grievance Committee

a decision which is reported by Scott Brede in The Connecticut Law Tribune, October 13, 2003,

under the title

“No First Amendment Protection for Lawyer’s Rants

Judge: high bar standards apply to attorneys’ personal lives, too”.

The above reported article is reproduced at law.com

Notopoulos wrote a harshly critical letter to a Probate Judge and was reprimanded by the bar.

Notopoulos claimed he had a free-speech right, acting as a private citizen – not in his capacity as an attorney – to criticize the judge.

The court held:

“In the context of disciplinary proceedings, an attorney’s right to free speech must be balanced with the state’s interest in preserving the integrity of the judicial system,” ” … Here, the significant state interest in preserving public confidence in the judicial system outweighs the free speech rights of Notopoulos to make reckless accusations about the integrity of a probate judge.”

It is arguable whether Judge Murray’s chilling decision concords with the

1974 federal court ruling in Polk v. The State Bar of Texas,

where U.S. District Court Judge Robert M. Dunn opined:

“This court rejects the contention … that in order to maintain the general esteem of the public in the legal profession … conduct of an attorney in all matters must be above and beyond that conduct of nonlawyers.” However, Judge Murray does not refer to the Polk case, even though cited by Notopoulos.

The question remains: To what degree are the free-speech rights of a lawyer admitted to the bar, acting as a private citizen, limited by his responsibilities as an attorney and by the rules of his respective bar assocation. This has not come up yet with regard to opinions voiced in blogs, but I am sure it will. The bar associations will not leave out this opportunity to exert their powers over their members, as is their wont.