Mass Law Blog

Nice post title, eh?  Mass MoCA is the Massachusetts Museum of Contemporary Art Foundation a contemporary art museum in North Adams, MA.  Christoph Büchell is a Swiss “installation artist.”  Think very large, very avant-garde.  The New York Times describes his work “dense, fraught creations, which compress masses of material and objects into historically charged labyrinthine environments through which viewers walk, climb and crawl.”   Wow.  Sounds just right for good old, left-leaning western Mass.  Not.

VARA is the Visual Artists Rights Act, a section of the U.S. Copyright Statute that gives grants artists “moral rights.”   For example, part of the law provides that the author of a “visual work” has -

the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation

The First Circuit held that the Museum violated this right when, after installation of a work that called for, among other things, according to the Times, “a burnt-out fuselage of a 737 airliner” it displayed the work without the artist’s consent.   That is, the artist stormed off after artistic differences with the museum, and  museum prepared to present the work, entitled “Training Ground for Democracy,” like or not.  Büchel sued under VARA, lost in U.S. District Court, but prevailed in the First Circuit, which is (I suppose) more sympathetic to moral rights than U.S. District Court Judge Ponsor had been.

This was a rare chance for the First Circuit to be the first federal circuit court to issue a decision under VARA, and the court’s 60 page decision, mostly in favor of Buchel, is linked in full directly below.

Mass Museum v. Buchel

U.S. Federal District Court Judge William Young has issued a lengthy decision, awarding $2.7 million in damages to the estates of three people murdered by James J. Bulger, Stephen J. Flemmi, and their associates.  Judge Young describes the story as “harrowing,” which may be an understatement.

The key defendant in this case is the U.S. Government, which will foot the bill if the decision survives appeal.

Here are some quotes, pulled from the opinion, which is linked in all of its gory detail at the bottom of this post.  Judge Young:inst

Despite years of legal wrangling and an extensive factual
record, at its core this is a very simple case. Federal Bureau
of Investigation (“FBI”) agents actively protected a group of
murderers from apprehension and prosecution in order to use them as informants against La Cosa Nostra. The agents did this over a span of nearly twenty years, despite being on notice that their informants were killers and would, and indeed did, continue to murder. . . .

The FBI’s relationship with Flemmi dates back to 1964,
when FBI agent H. Paul Rico opened Flemmi as an informant. Bulger was opened as an informant in 1971. Their recruitment as informants was not an accident. The FBI had made the prosecution of organized crime and La Cosa Nostra its top priority.  To that end, J. Edgar Hoover himself inaugurated the Top Echelon Criminal Informant Program on June 21, 1961. Top echelon informants were defined as those “that would be able to provide high-level information on a major scale.”  Both Flemmi and Bulger were designated as top echelon informants.

[The first victim, Louis Litif, murdered by Bulger, April 1980].

As to the manner of Litif’s murder, the statement to the FBI of the deceased Brian Halloran, establishes that Litif was lured to the Triple O bar where Bulger and an associate ambushed him. The autopsy report as well as expert testimony show that Litif was stabbed dozens of times with an ice-pick-like implement before he was shot in the back of the neck.  Certain of the puncture wounds perforated Litif’s liver, a wound thought to cause exquisite agony.

[The second victim, Debra Davis, Flemmi’s girlfriend of 10 years, September 1981].

Flemmi had Davis murdered because after their lengthy liaison, Davis showed an inclination to get on with her life (without Flemmi) and had displayed an interest in another man.  Flemmi himself testified that it was Bulger who wanted Davis murdered because he was jealous of Flemmi and Davis, and feared she knew of Flemmi’s relationship with Connolly. These, however, are the vapid maunderings of a supremely evil old man. Flemmi had Davis murdered for that most common and banal reason underlying male domestic violence against women: Flemmi thought he “controlled” Davis. ….

Flemmi lured Davis to Bulger’s mother’s house in South Boston. Bulger, lying in wait, grabbed her and scissored her neck between his forearms in order to crush her windpipe.  As Flemmi watched, Bulger strangled her. Davis lost consciousness within a few minutes and died.

[Deborah Hussey, daughter of Marion Hussey, girlfriend of Flemmi who had been sexually abused by Flemmi].

Flemmi began living with Marion Hussey, Deborah Hussey’s mother, and Deborah herself when Deborah was still a child. When Deborah was a teenage minor, Flemmi began to abuse her sexually. Likely as a result of this abuse, Hussey led a troubled life, turning to drug abuse and prostitution. In late 1984, Hussey informed her mother of  Flemmi’s abuse. As a result, her mother asked Flemmi to move out of the house.  Deborah Hussey herself was proving an inconvenience to both Flemmi and Bulger.  Hussey was relying on their reputation in South Boston to get her out of scrapes arising from her drug abuse and prostitution. As a result, Flemmi and Bulger killed her.  They murdered her in much the same way they murdered their other victims, by luring her into a house and strangling her. Here again, Bulger grabbed Deborah Hussey from behind and scissored her neck between his forearms to crush her windpipe. Hussey fought desperately for her life and knocked Bulger over. When the two fell to the floor, Bulger jack-knifed his body to work his legs around Hussey’s body to crush her torso. The Court infers Hussey lost consciousness from asphyxiation and died within a few minutes.

*****

Taken together, these related cases present a dark and  cautionary tale. Here the government – our government – stooped so low as simply to disregard its fundamental legal obligation of ensuring “domestic tranquility” to all its citizens equally. Instead, having apparently written these folks off as assorted low-lifes,” it proceeded to frame innocents (e.g., Limone, Tameleo, Greco, Salvati) and knowingly expose other innocents to murder (e.g., Barrett, Donahue, Davis, Hussey). Indeed, in its arrogant hubris the government – our government – undertook to decide which informants would live (Ciulla) and which were expendable (Castucci, Litif, McIntyre, Halloran).

Then, when its perfidy was revealed, the government – our government – sought to treat its failures as nothing more than a public relations issue. First it obstructed at every turn; when that failed, its position was “a few rogue agents,” nothing more. Ignoring the deep-seated institutional failures within the FBI, its rigid  hierarchical internal reporting system, the utter break-down of internal supervision, the bitter enmity its obstruction engendered within the Massachusetts State Police, and the marked continuing distrust its false affidavits have engendered in the judiciary, the government – our government – has never disciplined any high-ranking supervisor or undertaken any comprehensive transparent review or reform.

Nor is the failure limited to a single agency, however important. The arrogant hubris displayed by Rico, Connolly, and Morris, appears to pervade the government – our government – at all levels. How else to explain the conduct of the litigation here? No one gainsays the government its right vigorously to defend the taxpayers who must ultimately pay the judgment. A vigorous defense, however, cannot excuse the obstructionism in the Salemme case, or the litigation misconduct found in McIntyre,   Before me, the government conducted itself with technical expertise, full obedience of the Court’s direct orders – and a striking lack of judgment. Here, the government – our government – seriously argued that the horrifying acts of its agents against our own people fell within their legitimate “discretion,” and that the victims and their families were somehow complicit in their own murders, well knowing no Commonwealth court has ever suggested such a bizarre legal theory. Most repulsive, the government – our government – virtually argued “she was asking for it,” until the Court, remembering that Massachusetts has emphatically rejected this demeaning argument,  warned the government to steer clear.

“There has to be a safe place,” said Judge Richard S. Arnold. “And we have to be it.”  There has to be some place in which “integrity,” “truth,” and “justice” have meaning regardless
of preconceptions, power, or public opinion. Judge Wolf’s 664- page decision in United States v. Salemme, 91 F. Supp. 2d 141 (D. Mass. 1999) spoke truth to power and there was no going back. All these related cases depend in large measure on Judge Wolf’s seminal work. For the people of Massachusetts, in all these related cases Judge Wolf is that “safe place.”

This outcome was not inevitable. Judicial independence is not immutable, even in America. These cases ought to teach us – as perhaps nothing else can – the actual cost of losing the judicial independence so vividly on display in Salemme. Here’s the partial bill: a criminal FBI agent, corrupt to the core, living in honorable retirement on a public pension; a half dozen
unsolved murders; literally dozens of people tortiously injured yet denied justice; two innocent men dying in prison under life sentences hopeless and helpless; others languishing in prison for years, three initially sentenced to death; two murdered young women lying in unmarked and forgotten graves.

Think about that cost.

I do.

Litif v. United States, John Morris and John Connolly

A table from Branko Gerovac’s website, Empirical Reality compares the technology areas of Massachusetts and Silicon Valley The two areas are far more alike, on the statistical level, than I had realized -

(* CSA stands for “Combined Statistical Area”)

However, it’s no more accurate to say these two regions are comparable than it is to say that two 175 pound men are comparable – one may be all muscle, the other, well …..

Unfortunately, as Mr. Gerovac details in a number of other posts, Boston is far behind Silicon Valley in innovation, start-ups, and a variety of other key factors central to business development.  Mr. Gerovac quotes from an October 2009 TechCrunch article by Vivek Wadhwa, who wrote as follows (selected quotes):

Ever heard of Route 128? To my surprise, neither have any of my students at Duke or the entrepreneurs I’ve met in Silicon Valley. I’m surprised because it wasn’t so long ago that Silicon Valley was considered a poor cousin of Boston’s tech center—a cluster of technology companies located along this freeway which partially rings the city. Starting in the 1960s and on through the 1980s, Route 128 was, if anything, more closely associated with tech than Silicon Valley. Today few young technology workers even know where Route 128 is located, let alone its importance in the tech world. Silicon Valley has simply left Boston’s tech center behind.

In the 1980’s … if you were betting on one you’d have been wise to bet on Route 128 because of its longer industrial history and proximity to a large number of high quality educational institutions . . . and proximity to Bell Labs and other large corporate research centers. . . . Now, . . . Boston is a distant second nationally to Silicon Valley in technology entrepreneurship. So, what happened to Boston?

A young professor at UC-Berkeley, AnnaLee Saxenian, wrote a book in 1994 which answers this question. At a time when Boston still thought it was the powerhouse of the tech industry, Saxenian declared Boston the loser in the tech race and explained why it would only fall further behind. This book was titled Regional Advantage: Culture and Competition in Silicon Valley and Route 128. It kicked off a firestorm of criticism from the Boston elite. Saxenian also alienated friends at her alma mater, MIT.

She noted that Silicon Valley had an amazing dynamism about it. There were extensive professional networks, job hopping was the norm, information was exchanged openly, and the culture encouraged risk taking. The Silicon Valley ecosystem supported entrepreneurial experimentation and collective learning. In other words, Silicon Valley was a very open network—a giant social networking site working in analog before the concept of such a thing even existed.

This organizational mechanism was in sharp contrast to that of Route 128. Dominated by large, vertically integrated, and secretive minicomputer producers such as DEC, Wang, Prime, and Data General. Technology, skill, and know-how were trapped within the boundaries of the large corporations.

The differences were evident at many levels: venture capitalists in Silicon Valley had deep roots in local networks and were far more nimble than their east coast counterparts; educational institutions and research labs in the West partnered with local startups as well as more established firms, while those in the East worked only with the largest corporations; and the meritocratic openness of Silicon Valley made it a magnet for non-traditional talent and immigrants.

By the mid-1990s the east had missed the shift from minicomputers to personal computers as the flexible Silicon Valley ecosystem sped ahead with innovation across a diversifying range of components and systems going from chips, routers, and application software to ecommerce and search engines. Today Silicon Valley is the leading location for cleantech venture activity, an area widely considered to be the next big value creation engine for the U.S. and the world.

Boston, however, is no slouch. The Route 128 community remains the second biggest in the U.S. in terms of venture funds committed. Boston has powerful research institutions, still, and lots of very strong companies. In some areas, such as biotech, Boston may even rival Silicon Valley. But overall, its pretty clear that the Valley has not only won but is racing further ahead.

Most entrepreneurs and engineers that come to Silicon Valley, come to experience this network and to embrace the culture it has created. That’s why I came, too. Network effects don’t just work for fax machines. But then again, most of them knew that intrinsically. University guys like me need to do a bunch of surveys to figure it out. They voted with their hearts and feet.

Gerovac presents an interesting graph on his site comparing the percentage of tech company founders who established a start-up in the same state in which they received a degree.  California ranks tops at 69%, compared with 29% in Massachusetts (which is below the study average of 45%).

In our firm we’ve been talking informally about this phenomenon for years, and these posts are food for much thought.  Could it be simply that California is a lot softer on noncompete agreements than Massachusetts is?  I’ve always wondered whether it could be something as simple as the weather.

Joel’s last chance before Massachusetts Federal District Court Judge Gertner (“Joel Fights Back”) is his post-judgment motion to set aside or reduce the damages award against him on the grounds that the judgment is unconstitutional – after all, what government would punish a student to the tune of tens of thousands of dollars for a crummy mp3 download he could have purchased for less than a buck?  Ours, of course.

Joel’s Harvard Prof. lawyers filed a motion – punitive and unconstitutional, said they.

The DOJ disagrees.  Quite proper, say they, per brief below.

It’s not for me to say, but I’m thinking that there are some pretty big egos on the defense side of this case.  Nothing wrong with that, of course …..

DOJ Tennenbaum Post-trial Brief

Guest post by Gesmer Updegrove attorney Nancy Cremins.

______________________________

On December 1, 2009, the Massachusetts Superior Court announced the implementation of a Discovery Pilot Project in the Superior Court’s Business Litigation Session (BLS). A link to the press release announcement is here, and the text of the Project here.

The BLS Discovery Pilot Project will be implemented on January 4, 2010 and was developed as the result of a joint effort of the BLS judges and the BLS Advisory Committee, in an effort to address the increasing burden and cost of civil pretrial discovery, particularly electronic discovery.

The BLS Pilot Project incorporates some of the principles set forth in the March 2009 Final Report of the American College of Trial Lawyers Task Force on Discovery and the Institute for Advancement of the American Legal System, which (no surprise) found the civil justice system “in serious need of repair.”

The guiding principal of the BLS Pilot Project is to tie the scope of discovery to the magnitude of the claims at issue. The BLS judges will work with the parties to determine the scope and timing of permitted pre-trial discovery, taking into consideration the needs of the case, the amount in controversy, the parties’ respective resources, and the complexity and importance of the issues at stake.

In a move similar to the “automatic disclosure” that has been in effect in the federal court system for many years, each party participating in the BLS Pilot Project will be expected to produce at the outset of the case “all reasonable available non-privileged, non-work product documents and things that may be used to support that party’s claims, counterclaims or defenses.” After the initial production, the parties and the BLS judges will consider other pre-trial discovery methods, including numerical and time limitations and limiting the persons from whom discovery may be sought.

With respect to electronic discovery, the scope of such discovery will be governed by “the nature and scope of the case, relevance, importance to the court’s adjudication, expenses and burdens.” If the parties are unable to agree, the BLS judges will conduct an electronic discovery hearing, to address the scope of allowable proportional electronic discovery and allocation of its cost.

Chief Justice Rouse states that the Pilot Project will be in effect initially from January through December of 2010. Participants in the BLS Pilot Project will be asked to provide feedback so that data may be gathered and analyzed. Chief Justice Rouse states that the Pilot Project’s efficacy will then be evaluated and refined for future use.

Whether the BLS Pilot Project will have the desired affect of streamlining and reducing costs associated with the discovery process is yet to be determined, but kudos to the Massachusetts Superior Court and the BLS for at least making an attempt to fix the burdensome and expensive discovery process which, in its current state, often makes resolving a case on the merits cost prohibitive.

Just kidding, but Columbia Law School’s Altlaw, which I’ve used off and on, really is shutting down:

Nov. 19, 2009.  Earlier this week, Google announced the addition of legal cases to Google Scholar. It’s good, very good. But you don’t have to take our word for it: try it out yourself.

Everything we have done or planned to do with AltLaw, Google has does better. What else would you expect? Search is their core business; they have hundreds of brilliant engineers, a vast computing infrastructure, and billions of dollars invested in it. . . .

Therefore, we are happy to announce that Project AltLaw (Phase One) is complete. We will continue to maintain the web site and search service for a few months, but we will not be adding new features or new content. AltLaw.org, in its current form, will shut down in early 2010.

“We opened an investigation at 5:01 on Friday, as promised. . . . We are preparing for a prosecution. We are investigating. We are moving forward. . . . . The #1 defendant is Mr. Jim Buckmaster, who is the man in charge of Craigslist.. . . . Craigslist is a big promoter and facilitator of prostitution.”

South Carolina Attorney General, on Sunday, according to the Craigslist Blog.

Hmmm, this is the kind of thing that is protected by Section 230 of the Communications Decency Act, assuming that the South Carolina AG is referring to third party postings.  Somehow I doubt that Mr. Buckmaster has become a South Carolina pimp.

Apparently, law enforcement authorities in SC have been particularly aggressive in their comments about Craigslist. Why did Craigslist file this suit? The most obvious reason, from a semi-legal perspective, is to get into federal court in that state, rather than be subject to the whims of a state court judge that may not “get” the CDA. After all, SC is south of Mason Dixon, and these guys in California may have seen My Cousin Vinnie one time too many.  And, they be a little unclear on the geography of the American Southeast. Not to mention Easy Rider.

The other reason may just be to fight publicity with publicity, rather than just sit around and take it.

Whether a case like this is procedurally proper, I’m not sure, but I tend to doubt that you can preempt a threatened criminal prosecution that would be brought under state law with a civil action for declaratory relief in federal court.

Now that Prof. Charlie Nesson has grabbed a lot of attention with his defense in the RIAA v. Tenenbaum case, it may be worth recalling this video, which was posted on YouTube in August 2006.

has filed a most unusual “expert witness report” in the Tenenbaum case.  This will surely raise some novel admissibility issues under Daubert/FRE 702 standards.  And that, constant readers, is the understatement of the day.  More surprises to come from the Nesson/HLS defense team, I have no doubt.

The issues associated with Electronically Discoverable Information (ESI) hang over the legal profession like the threat of Katrina II hangs over New Orleans. Lets face it: most judges and attorneys would do anything to avoid confronting the complexities of ESI. However, judges are good at forcing lawyers to face up to bad stuff, so it’s impossible to avoid the subject.

Of course, in a huge case involving large sums of money it’s no problem hiring a consulting firm that does all the work for the lawyers, and guides them every step of the way. However, that’s only 1 case in 100, if that. What about all the “little cases,” where expensive consultants are not an option?

The answer, not surprisingly, is the “keyword search.” After all, if we can search a trillion documents using Google, why not use key word search to find documents relevant to litigation.

Sadly, key word search is not very reliable. For example, if you have a million documents how would you formulate a key word search that would be certain to collect documents that relate to to people under age 12? In fact, recently the courts have noted the shortcomings of key word searching and criticized its use.

An excellent article in the April 2009 ABA Journal discusses these issues in some detail, and the good news is that some “very smart people” are working on a solution. The bad news, as I said, is that key word search is not very reliable, and this poses a problem until the problem is solved by these masterminds. To quote from the article:

It would be the ultimate discovery for e-discovery: a perfect method to turn terabytes of digital data into a collection of case-relevant documents.

Three years ago, a handful of lawyers and scientists started the quest, a project to save litigation from being bur­ied in an avalanche of electronic documents. Since then, the Text Retrieval Confer­ence Legal Track has been using different types of computer searches to wade through huge piles of digital in­formation, hoping to get closer to a complete picture of what is issue-important in a computer’s data stores.

The good news: The TREC Legal Track team believes it is close to finding a protocol that can work. The bad: The project also found disturbing problems with the way lawyers work today.

And the harshest conclusion: Key­word searching—what most law­yers use to find litigation documents—misses the majority of relevant documents. Or as Jason Baron, one of the Legal Track study coordinators, puts it, “Lawyers need to understand that the way they have been searching for electronic documents has some serious flaws.”

So, just what is the “TREC Legal Track”? Well, the TREC Legal Track web page has a number of documents that discuss the efforts underway. The papers are, based on my perusal, not for the faint of heart – they involve technical assessments of the effectiveness of various search. Lets hope we can get by on old-fashioned key word searches until the happy day arrives when the TREC folks, or someone, finds that protocol.