Brockholst Livingston's Blog

2007-12-07T04:37:00.000-08:00

In this age of increasing technological dependence, the sophistication of technology is quickly outstripping the abilities and efforts of Congress and other lawmakers to issue laws regarding the proper treatment of such matters. Numerous arguments exist for allowing government officials to freely use the GPS tracking equipment on cell phones to track suspected wrongdoers, but it is in my opinion that probable cause must be first established. I will deal with the main, strongest argument against my position.

The main argument for an uninhibited access to cell phone locations by virtue of the cell phone's GPS tracking device is that the owner of the cell phone, in receiving service, is freely letting his position be known to the service provider, so no special privileges prevent the government from accessing it. This is, obviously, not sensible. The cell phone user is freely giving up his or her location, but only to the service provider. It follows from this admittedly glibly interpreted legal argument that if you disclose sensitive information to your wife, then that information is available to anyone and everyone. This of course is not the case due to the freedom from testifying against a spouse or husband. Many government power advocates tend to treat law enforcement agencies as any other disinterested party, such as a cellular service provider, who will only become involved if you are an evil, dangerous person who doesn't deserve privacy rights to begin with. However, the nature of the government and its objectives indeed make it a threat to everyday citizens along with the hardened criminals, the latter, at least, still deserving access to rights including privacy ones in order to achieve a balanced system of justice.

This is not to say that suspected wrongdoers can never be touched by the government or have their rights infringed upon, but only if the infringement is in accord with the balanced system of justice as conceived of by our Founding Fathers and legal predecessors. Specifically, a cell phone tracker can only be used by a government agency to track one's whereabouts if probable cause has been satisfied, as established in law.

What the government can do without establishment of probable cause in issue a pen register information, a record of outgoing calls from a phone, and a trap and trace device which tracks the incoming calls to the number. Many authoritarian legal theorists argue that the GPS tracking is just the next natural step in the evolution of cell phone usage by law enforcement agencies and that the USA Patriot Acts supports such a move. It seems somehow paradoxical to me, suing the Patriot Act to try to establish what is legal, so I won't even address this issue. Insofar as the evolutionary theory of these aforementioned legal theorists, theory isn't quite tantamount to the standard of law.

In closing, I will address the pseudo-defense, which quite frankly seems more like a mantra of these defending strong centralized federal powers. Especially in regards to terrorism and the various lengths the government has gone to combat it, government spokesmen always say something akin to "We are only out for the terrorists. If you (average American citizen) haven't done anything, then you have nothing to hide." The problem with this defense (or is it a virtue?) is that it really is only applicable to today's world yet it sounds as though it will characterize law enforcement techniques for years and years to come. Given the limited powers and capabilities of police, the FBI, the CIA, etc. presently, it does stand to reason that a mass campaign against minor vices and infractions is impossible, but what about in the future? Given the rapid advance of technology, the very thing that prompted this blog to begin with, what is there to protect Americans from the overly-scrupulous enforcement of law tomorrow? The first and the hardest step on the road pursued by these government agencies isn't the effective enforcement of such stringent laws in the future, ostensibly, but rather the subversion of the laws today in order to build the groundwork for the 1984-esque Big Brother of tomorrow.

A Profile of Profiling

2007-11-09T05:14:00.000-08:00

Before 9/11, the word "profiling" brought to mind the image of an over-zealous cop pulling over or otherwise shortly detaining a minority group member for any number of declared reasons like speeding or having committed a rolling stop, often times wasting a couple of minutes of every one's time. While this may have seemed innocent enough six years ago, profiling today has become a lot more serious and necessary.

In a world where a couple of hours notice can save the lives of 3,000 people - or potentially a much greater number if nuclear of biological weapons became involved - the ability to respond quickly and thoroughly to a threat is essential. Profiling has therefore become a needed tool in the war on terror.

Many opponents of the practice exist, but none can really argue that it can get results - if done properly. The problem is that it hasn't been carried out correctly both international and abroad in recent years. An excellent contemporary example has been the attempt of the FBI to find terrorists in the San Francisco Bay area by tracking falaffel purchases. Internationally, the problem of wrongfully suspected terrorists is undeniable, as evident in the recent PBS Frontline episode about extraordinary rendition. The unpreparedness of American soldiers in Iraq is a sad truth, detaining Iraqis whose innocence could be realized if an Arabic translator were present with the convoy. These intelligence and military botches don't seem so sever, but consider absolute failure and waste of resources that surrounded the suspected terrorist attacks in Los Vegas in 2003 before New Years. The FBI had gotten a tip, one that proved to be erroneous due to a mistranslation, that an attack was suspected to happen there during the New Years celebration and proceeded to pour through the hotel records of all couple hundred thousand people there that weekend.

Profiling might be am extremely useful tool in any preventative war, whether it be the war on terror or the war on drugs, but in lieu of any good intelligence, sensible initiatives and competent officials, the exercise in profiling will not be nearly enough to protect Americans nor will the sacrifice they make be worth it.

2007-10-29T05:24:00.000-07:00

Before watching the "Frontline" piece entitled "Cheney's Law", I, along with most Americans, had never heard of the Office of legal Council nor had I any idea of their general importance in the grander scheme of things. After watching the piece, however, I was imbued with a greater appreciation for the inconspicuous nature of power structures.

Sometimes this power, utilized so artfully by fear mongers like the current vice president, lies inside ourselves in the form of fear, as explored by Corey Robin. Often times, however, this power lies within our own machinations, whether they be political, philosophical or societal.

Since the final days of the Roman Republic, Cicero's now famous words "Inter arma enim silent leges" have substantiated time and again. Today, with the "War on terror" raging across the globe, it is so much convenient for the Bush administration to work outside of the knowledge of not only the American public, but also the other branches of government. Charging Daniel Addington, for example, with keeping an open eye to increasing presidential power in any way possible emanates from this vein of thought. Similarly, the way in which the President and his inner circle of hand-picked appointees such as Alberto Gonzales attempted and attempt to wield power away from all other sources, concentrating in the White House, is rather troubling, to say the least.

During World War II, it seemed necessary to address the problem of Japanese spies present in our country reporting crucial intelligence to their home country by building internment camps in which to house them. After all, despite his objection to the bombing of Pearl Harbor, Admiral Yamamoto had studied at Harvard. Wasn't it at least possible that some Japanese held bad intentions for this nation? The Supreme Court thought so, obviously, deciding in Korematsu vs. the United States to allow the placing of Japanese citizens into internment camps during the war. Isn't it only now, in hindsight, that such a move seems so petty and misguided?

The short answer here is yes, but it is certainly important to keep our minds open to the changing nature of power in this country and what that power is being used for in order to stem future and present abuses of it.

Court: A Closed Community?

2007-10-18T22:16:00.000-07:00

In this week's recommended reading, Abraham Blumberg sets forth his notion that the court system has lent itself to becoming something of a "closed community," where the defense lawyer, the prosecutor and judge all gain familiarity with each other and in effect perpetuate a system where the defendant in a criminal proceeding, for example, is isolated.

The point raised is an intriguing one. In a system that strives so thoroughly to expel any measure of impropriety in favor of utter neutrality, the existence of a de facto community consisting of everyone but the agent whom the proceedings revolve around is quite problematic.

For my senior year of high school, I shadowed a federal judge here in Toledo. In many of the proceedings i sat through, the camaraderie that the defense and prosecutor enjoyed took me aback. I realized that these guys knew each other fairly well, probably due to their shared work environment. The mood in federal court was vastly and understandably much more solemn than that of the bankruptcy court or even the municipal court, but these latter two dealt with issues much more mundane than the federal court. Municipal court was preoccupied solely with pre-trial matters that week whereas the federal court's docket was nothing but sentencing hearings. The comfortable repartee shared between the defense and prosecutor in federal court was being exchanged moments before the defense's client was to be sentenced, either to the dismay or satisfaction of the prosecutor. Needless to say, I was a bit confused.

Blumberg, however, offers a good explanation as to this set of circumstances. The shared work environment of the judge, prosecutor and defense would invariably allow the three agents to familiarize themselves with each other. This is especially true considering that the defendant is only present a portion of the time, rarely consults with the judge or prosecutor and doesn't come from a background ostensibly akin to the one the judge, prosecutor and defense lawyer share. Also, the attraction of developing a rapport with the other members of the court who control their success might indeed be overwhelming.

This "closed community" system may serve to further the interests of the three main judicial players, but it ought to be done away with in order to pay better attention to the actual catalyst for the criminal proceedings: the defendant.

KaZaA Controversy

2007-10-05T04:31:00.000-07:00

Quite frankly, I'm surprised that cases like this still hold a place in the forefront of the American legal system. I was under the impression for the last couple of years that the music copyright landscape in American legal affairs had all but disappeared, given what I thought to be the restructuring of Napster. Sure, other such sites like Limewire and KaZaA stepped up to take its place, but it seemed like only a matter of time before these sites too were affected.

Should people such as Jamie Thomas who trade songs on these community websites be treated with a slap on the wrist or treated as if they went to a department store and stole about 100 CDs? I will argue that a more serious action may indeed be called for, but given the difficulty and rarity in prosecuting such people and the difficult determination of the whether such actions are wrong or illegal should allow people like Ms. Thomas light sentences in favor of tackling the problem in more productive manners.

I personally believe that the notion of ownership on electronic media is rather dicey anymore with the portability advent of Ipods and MP3 players. Due to this murky legal water and the consideration that people ought to be punished harshly most only for this things in the law that are explicit and well-founded legally, music file sharers shouldn't be punished as severely, for example, as they would be if they went to a store and stole the equivalent of the music on a physical medium. Stealing, for example, is a well-founded and certainly explicit instance of crime that most everyone would and should be aware of.

Another example of a highly visible type of crime that achieves high awareness are drug offenses. Analogous to the defense of anti-music sharing laws, the war on drugs is similarly hard to handle effectively. Most potential offenders are never and can practically never be caught while attacking the problem at its international drug-producing source is an equally overwhelming task. Music-sharing, however, shouldn't share the same difficulty in attacking. All a government body or regulatory commission would have to do is, in conjunction with anti-music file sharing site legislation, find such websites and shut them down or at least make access to them extremely difficult in the case of off-shore servers and the like. The problem with the latter proposition, however, is that the American justice system is quite slow in moving forward on updating its Internet crime fighting techniques and abilities and the laws regarding the types of actions that remain permissible on the Internet, due to the rapid development of the Internet and the government's low-threshold to change quickly and neatly.

Given this difficulty and relative banality regarding the crime of music file-sharing and copyright infringement, the American judicial system ought not to try and prosecute people like Ms. Thomas - at least harshly. The deterrent legal approach is not fitting as such cases are rare, the policing and defense of the specific law is difficult, and the lack of firm footing in laws regarding the crime are glaring. Instead of seeking to defend the law through prosecuting the offenders, the federal government should seek rather to attack the problem at its source with illegal file-sharing websites themselves.

DNA and Deterrent Justice

2007-09-28T05:12:00.000-07:00

DNA evidence has only existed for the last ten years or so, but in that relatively small amount of time it has made a huge splash in the proverbial pool of justice.

Since the advent of modern science techniques and technology, new types of possible evidence are emerging for use in criminal and other types of cases are emerging continuously. DNA testing is one of the more dramatic and effective types to have come about recently. Even though it is applicable in a small number of cases, the cases DNA testing can be used for tend to be high-profile ones involving rape and murder. The same influence it has for conviction, though, it has for exonerations as well. The Innocence Project is testament to this, having secured the 205th exoneration of a wrongfully convicted client just recently.

The situation facing this wrongfully convicted man, Byron Halsey, was not and is not at all unfamiliar. Pressed by high-pressure police interrogation techniques, which do not abide at all by the innocent until proven guilty motto, he pleaded guilty to the gruesome murder of four children and received over a century of jail time.

The plight of men such as Mr. Halsey is not all too uncommon. Some figures place the percentage of people having been wrongfully convicted by unfair police interrogation techniques or other legal mechanisms that aren't interested much in the actual state of guilt or innocence in the persona charged quite high. And in a prison population of about 2.2 million, the number of such railroaded and wrongfully charged people would be quite high. This is particularly troubling to many of us because not only has an innocent man or woman been punished for a crime they didn't commit, but the real offender is still presumably free.

The court system, however, does not concern itself much with these types of considerations, being as it is in some manners a deterrent system of justice. It views as its function the scaring of potential criminals and the assuring of the rest of the public that it is "tough on crime." In other words, it send the message that all somebody has to do is appear to be guilty and they will potentially be deemed so, motivating the public to stay far away from any potentially criminal situations. This conception of the American legal system holds that anyone charged with a crime, guilty or not, are simply tools of the state to control the public. The Supreme Court's ruling that habeas corpus cannot be used in cases of wrongful conviction due to actual innocence and rather only in cases of prosecutorial misconduct, given that the court's duty to deliver a verdict is a solemn one that (true or not) is seen as true and final. Such a treatment of court rulings effectively gives teeth to this deterrent system of justice which doesn't care much for the truth of innocence and rather only for the utilitarian concern of maintaining order.

It is this same appeal to utilitarian philosophies, though, which I think can be used to support the argument for conviction revisitations. As Taylor points out, the cases in which DNA played an important role are very few indeed. Because of this, there would be no massive drain on institutional resources in the revisiting of many of these cases. It is also true that since such a deterrent legal system cares little for actual innocence and only the ability to send a message to the masses, preventing them from the commission of crime, the partial serving of the conviction of the wrongfully convicted wouldn't be a complete loss (as the message of what happens to criminals is still being sent) and any mea culpa admission on the part of the court system would be beside the point. In fact, the publicity achieved by the stories of those wrongfully convicted could only further the public's cognizance of what can happen to them if they are in the wrong spot doing the wrong thing at the wrong time.

"Tort Tales"

2007-09-20T22:49:00.000-07:00

The element of "tort tales", much like any urban legend, seeks to build on preexisting prejudices and conclusions in order to produce an widespread effect on a populace - or at least to function as a funny anecdote. "Tort tales" function arguably as the latter, being spread by those among us that are either jaded by the current legal system or who stand to gain something from the judicial branche's revision.

A typical example of such a "tort tale" is the trumped-up case of Judith Haimes. In the fictional version of this case, Ms. Haimes sues a hospital after a C.A.T. scan performed on her causes her to loose her renown psychic abilities. The tort tale continues, saying that she won the case and received a million dollar settlement. This series of events is indeed perverted. In the actual case, Ms. Haimes sued not over the loss of psychic abilities, (at least not primarily) but rather because of the negligence her doctor exhibited by giving her an injection of an iodide-based solution which her doctor was aware would cause complications. She also did not win a settlement in real life. The case of Paul Miller resembles that of a "tort tale" but is a factual account. In his case, Mr. Miller's assets in the Bank of America were repeatedly withdrawn illegally by the bank, a case that Mr. Miller ended up on the winning side of.

The difference between the two is multifaceted. The obvious disparity is that the one is a genuine "tort tale" while the other is true. The other difference deals with how the two can be interpreted and how the two function in society. The Haimes case is simply an instance of misrepresentation of the truth, ostensibly for the aim of galvanizing public opinion in regards to trivial lawsuits, making the ability of everyday people to have their day in court a more distant one. William Haltom and Michael McCann, the authors of the "Distorting the Law", argue that such lawsuits are talked-up and utilized by people like former President Reagan to push their tort-reform agendas by making the system look quite ridiculous and in need of fixing. The Miller case is an example of large corporations, though suffering a meager bump in the road with one loss, using the case as a selling-point to affect change in national laws for something like tort reform. As Stephanie Mencimer, author of "Blocking the Courthouse Door" points out, after their loss, Bank of America was able to gain ground in Congress and secure legislation making any future cases resembling Mr. Miller's hard to realize. Both cases in these frameworks are used as selling points for tort reform, but they are used in different ways.

If Mencimer were to look at Ms. Haimes' case and McCann and Haltom were to look at Mr. Miller's case, the two sides would interpret the cases in their respective frameworks as laid out here. For example, Mencimer would say that Ms. Haimes' case would be used as an example of frivolous lawsuits by those who could benefit from it like big corporations, using it to change laws or something else useful. McCann and Haltom would say that Mr. Miller's case could be spun as a "tort tale" and as well be used to change national feelings regarding tort reform. The two interpretation schemas seem equally valid and probably could be used to describe similar numbers of cases, as there probably exists just as many "tort tales" as actual tort cases that involve big payouts from big corporations.

Win or Loss for Woburn?

2007-09-13T23:18:00.000-07:00

I personally enjoyed "A Civil Action". Though it was quite long, the suspense and intriguing narrative style took me as a reader through the seven or so year long struggle that was Anderson vs. Grace. Despite the complex situations involved in the novel, the comprehensible language Harr utilized made it a very accessible text.

When reflecting on the novel, though, one criterion stands above all others in terms of generated interest: how did you like the ending? The most important question when considering this criterion is "Who do you think one?". After completing the novel today, I believe that the answer to this is the plaintiffs. The defendants, W.R. Grace and Beatrice Foods, both had to settle out of court initially, providing Schlictmann and his associates enough capital with the Beatrice settlement to further pursue the case with the rest going to the Woburn families. Even though the money wasn't as much as was expected at first by Jan and the division of it caused dissent among some of his clients, it was still a blow to Beatrice Foods. Grace escaped loosing and money to the Woburn families twice, but along with Beatrice was forced to pay about $69 million dollars to clean up the Aberjon aquifer. Such a loss could not have gone unfelt in both conglomerates.

The loss of money is the only means of determining whether or not the two companies gained or lost anything from the trial, as that is all companies think in terms of. It is certainly true that neither Grace nor Beatrice wanted to admit their part in the pollution of the area, but not because they cared about the state of their morality or because they believed themselves innocent, but rather because an admission of guilt would just invite more lawsuits and more financial losses.

The Woburn families, on the other hand, cared very little for money and were more interested in assigning blame and having the companies apologize for their disregard for public safety. Even though neither of these two goals were ever met, the EPA did blame the pollution on the two companies after the close of the trial and hurt them by taking the only thing they cared about: money. The whole experience also not only aroused somewhat the EPA's interest in matters of environmental crimes but also sent a message to companies not to take such a cavalier approach to waste disposal.

9/11 Lawsuits

2007-09-06T22:20:00.000-07:00

Just a couple of days removed from the six anniversary of the horrific events of September 11th, many families of those who lost loved ones due to the terrorist attacks are preparing for another momentous September date - their date in court.

With forty-one cases left to be settled representing forty-two 9/11 victims, many of the relatives of these victims still have yet to confront in court the various companies that they blame in part for their loss. The cases have received little notice, but the articles that do cover it pay much attention to the inherent controversy that surrounds them.

After reading the NY Times article related to the cases, a number of things relating to the cases struck me as agreeable and disagreeable. I generally support the right of families to sue in these matters, but I do have a few reservations. My biggest problem, not that I have many of them, is what the families potentially are suing over. I think there should be a clear dichotomy made between failures of policy and security that were glaring at the time of the attacks and ones that are apparent only in hindsight. For example, the possession of weapons for a long time has been not allowed on airplanes, a policy evident before 9/11 that should have prevented the smuggling of box cutters on board the aircraft. The necessity for extremely sturdy metal doors for the cockpit making unapproved entry near impossible, though, was not as obviously needed at the time. In other words, hindsight is 20/20. I understand that U.S. intelligence reports prior to Sept. 11 warning of terrorist intentions to hijack aircraft for attacks were available, but this was just speculation at the time. The airlines are just as much in demand and inefficient as any large bureaucracy, making any sudden and large-scale new security implementation extremely difficult. I can understand the airlines and the airline security companies being sued over security slips mistakes of the former variety, but liabilities produced by the latter variety of errors seem unfair to me.

My other reservation, though less of one than the one aforementioned, deals with the intentions and dissatisfaction of the plaintiff families dealing with compensation. The article I read clearly mentioned that many of the families are not suing solely for financial compensation, but it did not provide any other motives other than the ambiguous one of the search for truth. The article states "By the plaintiffs’ own accounts, they have sued with mixed motives, which sometimes even they cannot untangle. They present themselves as heroes fighting for the truth and as families honoring the memory of their loved ones, but they are not apologetic about seeking money." I have no trouble with the victims' families seeking this type of concession, but I would hope money isn't being pursued solely because the families only saw their lost loved ones as investments of some sort. I am not saying that any of the families do feel this way, but it just surprised me that no other aims were goals were given by the families in the article. Some people may disdain the families for seeking monetary compensation of any amount, but lets not assume that the money won't be needed to offset a lost household provider's wages or be donated to a worthy cause.

However the court cases proceed, I hope that these cases help the families and perhaps even the nation to find some closure and healing.

Worker Safety

2007-08-30T21:21:00.000-07:00

I a recent article, Arianna Huffington voiced her reservations on Americas' worker safety status, along with identifying what is problematic with the situation. She laments as well that it will take a tragedy like the Crandall Canyon Mine Disaster to make us serious about workers' well-beings.
She cites a number of reasons in her editorial, chief among them being the "croney cultural" that prevails in Washington D.C. which sees unqualified patrons and supporters getting important jobs and positions. Among these positions are a number of influential ones that affect worker's safety, such as the head of OSHA, the Occupational Safety and Health Administration. The current head of this organization, she points out, was a former lawyer whose agenda was very much anti-OSHA and its advancement. In accord with this person calling the shots in that organization, says Huffington, OSHA has issued far less new standards these past few years than ever before. Another organization that is similarly affected by partisan and questionable leadership, according to Huffington, is the head of the Food and Drug Administration.
Huffington's citing of 4.2 million worker injuries and illnesses due to work factors is particularly troubling in which case because some of them may have been prevented if OSHA's leadership was more proactive.
I personally think that these types of concerns are very important and should weight heavily on the minds of our politicians. Even though many people think the role of government should be curtailed these days, I think it is important that the government should be attentive to these matters. Worker health issues directly affect the lives of many people and often times there are no ways of protecting workers or improving their situations if the government isn't used to gain leverage against big businesses. I agree with Huffington that something is amiss if we as a nation concentrate on disasters like the recent mine collapse without doing something to prevent similar accidents in the future.

2007-08-22T21:48:00.000-07:00

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