Legal Stuff

From The Literary Hub:

Over the past two decades, I’ve worked on fiction between the spaces of my various law related jobs. Law firm associate. Federal judicial clerk. Law professor (which, happily, I still am). My debut novel, Late Bloomers, was recently released by Random House, and I found myself thinking about the lawyers-turned-writers that have inspired me over the years.

During the many years I worked on my own novel, dreaming of publication, I’d always notice if an author mentioned a J.D. degree in their bio, filing it away as inspiration. I’d feel a tiny jolt and think that maybe I, too, could someday join this club of lawyers (or former law students) who had published a book of fiction.

Now that my debut novel has been published, I’m often asked about my law background and why law-trained people are drawn to (and sometimes, quite good at) writing fiction. As I’m not inclined to make generalizations without supporting data (the academic life beats that trait out of you), I can only offer unsupported guesses. And here are a few.

Writers and lawyers pay careful attention to language. If you are a lawyer who drafts contracts, one wrong word or unartful phrase can have real consequences. Fiction writers, too, think hard about the words they choose. If you are a lawyer litigating cases, you likely write briefs and write them in ways designed to generate empathy for your client. Fiction writers, too, are in the empathy business. To empathize with another person, in circumstances different than one’s own, is why many of us write and read fiction.

Also, lawyers are in the constant company of hypotheticals: what if the facts of a case changed this way or that, what outcome then? In law school, professors pepper their students with hypotheticals (sometimes bordering on the bizarre). As a novelist, I’m engaged in a years-long hypothetical exercise; what if my characters did this or that, what then? And then, of course, there is this: The best legal writing can shine a light on inequity and remind us of our shared humanity. Great fiction often does that too.

. . . .

Again, these are just some guesses for why lawyers are drawn to writing fiction. But as I look back on the authors whose work has inspired me over the years, it is hard not to be struck by how many of them were lawyers for a time—or, at least, went to law school, even if they didn’t practice law. Here are nine novels and short story collections by former lawyers or law students that have inspired me along the way.

Elizabeth Strout received a J.D. from Syracuse University College of Law and worked briefly as a legal services lawyer. In a Fresh Air interview with Terry Gross, Strout described herself as a “bad lawyer” (I don’t believe that) but said that her law school training was nonetheless beneficial to her writing because “it stripped away the excessive emotion.”

Strout is one of my favorite writers, and I love all her story collections and novels, including her most recent, Lucy by the Sea. But Olive Kitteridge has a special place in my heart, and I re-read it often. Winner of the 2009 Pulitzer Prize, Olive Kitteridge is a deeply insightful and moving collection of thirteen linked stories that follow Olive, a retired schoolteacher, and other residents of Crosby, Maine, as they grapple with love, loss, loneliness, marriage, parenting, and familial estrangement.

Min Jin Lee’s first novel, Free Food for Millionaires, introduces the unforgettable character of Casey Han, a Princeton-educated Korean-American woman raised in Queens, who struggles with debt, loneliness, heartache, ambition, and parental expectations in her post-grad twenties.

Lee studied law at Georgetown and worked as a corporate lawyer in New York for a few years before leaving to focus on her writing. In numerous interviews, she has described the grueling billable hours of her law firm job and the health concerns that drove her to quit. Despite having experienced the unrealistic demands of New York law firm life firsthand, I’m almost grateful for its unpleasantness—if for no other reason than it prompted Lee to devote herself to writing her incredible novels and sharing her astonishing talent with the world.

After graduating from Duke Law School, Ben Fountain practiced real-estate law at a large Dallas law firm for five years before deciding to pursue fiction writing full-time. Fountain discusses his law background in a New Yorker article by Malcolm Gladwell titled “Late Bloomers” (not the reason I picked my own novel’s title, I promise). In it, Fountain describes the challenges of writing fiction at night after working law firm hours and the eighteen long years that passed between his decision to quit law and the publication of his first book, Brief Encounters with Che Guevara, which won the Pen/Hemingway Award.

The stories in this terrific collection, set in locations as varied as Haiti, Columbia, Myanmar and Sierra Leone, are heartbreaking, surprising, complex, and darkly funny.

Link to the rest at The Literary Hub

From The National Law Review:

On May 18, 2023, the US Supreme Court affirmed the Second Circuit’s decision that artist Andy Warhol’s silkscreen portrait of Lynn Goldsmith’s photograph of musician Prince, used for a Vanity Fair cover, was not a fair use under US Copyright Law.

In a 7-2 decision, the Court found the “purpose and character” factor of the copyright fair use analysis did not weigh in favor of a finding of fair use where the use of a new work encompassing an original work shares the same purpose as the use of the original work and is commercially licensed.

Although the addition of a new meaning or message is a relevant consideration in assessing the purpose and use of a work for purposes of determining fair use, it is not dispositive. According to the Court, the “purpose and character” fair use factor must consider “the reasons for, and nature of, the copier’s use of an original work,” balanced against the original creator’s exclusive right to make derivative works. If the new work achieves the same or similar purpose to the original work, and the new use is of a commercial nature, the first fair use factor likely weighs against a finding of fair use, absent another justification of copying. Ultimately, the inquiry is objective and questions how the original user has used the original work.

The case comes with much anticipation and could have significant implications on the availability of the “fair use” defense in copyright infringement cases, including potentially with respect to the hotly contested use of generative artificial intelligence to create new works.

Background

Vanity Fair magazine originally commissioned Warhol to create an image of Prince for publication alongside an article of the musician in 1984. Photographer Lynn Goldsmith granted the magazine a “one time” license for it to use one of her Prince photographs as an “artist reference for an illustration.” Warhol created a purple silkscreen portrait using Goldsmith’s photograph. The magazine credited Goldsmith for the “source photograph” and paid her $400.

Unbeknownst to Goldsmith, Warhol created 15 other silkscreen prints and pencil drawings from Goldsmith’s same image of Prince. Goldsmith claimed she did not learn of the Prince series until 2016, when Condé Nast published some of the images in a posthumous tribute to Prince. In particular, in 2016, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed an “Orange Prince” silkscreen image to the magazine for $10,000 for its cover. Goldsmith did not receive any compensation or credit.

(PG note. Both images are from the Opinion of The Supreme Court.)

In response to Goldsmith’s objections, AWF sued for a declaratory judgment of non-infringement of Goldsmith’s alleged copyright. Goldsmith counterclaimed for infringement. On Goldsmith’s counterclaim, the district court granted summary judgment for AWF, finding all four copyright fair use factors, under 17 U.S.C. §107, weighed in the foundation’s favor. The Court of Appeals for the Second Circuit however reversed and remanded, finding all fair use factors favored Goldsmith.

Decision

The only issue before the Supreme Court was whether the “purpose and character of the use” weighed in favor of AWF such that its commercial licensing to Condé Nast would be considered fair use. The Court ultimately agreed with the Second Circuit, finding in favor of Goldsmith, and that the factor did not favor AWF’s fair use defense to copyright infringement.

Goldsmith had licensed her works for years, with images appearing in Life, Time, and Rolling Stone magazines. People magazine had also paid Goldsmith to use one of her Prince images in a special collector’s edition of its publication following Prince’s death. Because Goldsmith’s original photograph and AWF’s work licensed to Condé Nast were both portraits of Prince, “used in magazines to illustrate stories about Prince[,]” the Court found the works had the same purpose and that AWF’s use did not favor a finding of fair use.

A determination of fair use requires consideration of the following four factors set forth in §107 of the Copyright Act:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

The Court explained that the central question in determining the first fair use factor asks whether and to what extent the new use adds something new, with a further purpose or different character. The larger the work supersedes the objects of the original creation and goes beyond that required to qualify as a derivative work, the more likely the purpose and use factor will weigh in favor of a finding of fair use. Works that merely supersede the objects in the original creation — without adding something new, with a different character or further purpose — are unlikely to be found transformative and thus fair.

Included in the Court’s fair use analysis was significant discussion of its 1994 Campbell decision, a case involving 2 Live Crew’s copying of Roy Orbison’s song, “Oh, Pretty Woman,” and from which it created a rap derivative, “Pretty Woman.” There, the Court found the new work clearly transformative in that it was a parody, had a different message and aesthetic, and had the distinct purpose of commenting on the original.

Conversely, Warhol’s image was substantially the same as Goldsmith’s original photograph in that both were used to illustrate a portrait of Prince, AWF received compensation for doing so, and the degree of difference (i.e., the flattening, tracing, and coloring of the photo) was not enough for the first factor to favor AWF, according to the Court.

The Court compared AWF to other would-be users who may attempt to seek the shelter of the fair use defense, including musicians who sample songs, playwrights who adapt novels, and filmmakers who create spinoffs, noting that a finding of fair use in the case might authorize a range of commercial copying for use in a substantially same manner as the original work.

Link to the rest at The National Law Review

PG would have come down on the fair use side of the argument, but nobody ever nominated him to serve on the US Supreme Court.

PG has posted quite a number of AI-related items as they impact authors.

To make certain that authors don’t feel singled out, the following article discusses the impact AI is having on practicing lawyers and their support staffs.

From LegalTech News:

With so many antiquated fixtures in the legal industry colliding with new trends like artificial intelligence, data-harvesting and an altered relationship professionals have with their careers, the legal business is ripe for disruption.

But while the disruptive forces are timely, the reasons behind them are familiar: pricing pressure from consumers of legal services and service providers striving to deliver more value at a more competitive price point.

Here are three of the most commonly cited disruptors already underway in legal businesses, according to professionals implementing them who spoke at Legalweek 2023.

Bar Associations May Not Like Alternate Business Models…But Consumers Do

Corporations’ sophisticated use of data to control outside vendor costs is rubbing off on their legal service providers through greater attention to how projects are staffed and monetized.

At the front lines of these innovations in process management are alternative service legal providers and non-standard legal business structures, according to Legalweek panelists, many of whom are themselves leaders at alternative legal businesses.

In the minds of legal service consumers, distinctions between traditional law firms and new-age law firm businesses are breaking down, according to Rachel Zahorsky, managing director of client development at legal service provider Novus Law.

Plenty of resistance remains to the formation of alternative business structures in law, but it’s coming from state bar associations, not consumers, Zahorsky said. She said changes in Arizona and Utah will catch on in other jurisdictions because demand for new ways of accessing legal representation is there.

“Now there is no hesitation about where you fit or where you are [in the legal industry],” she said. “Although all the state bars are resistant, the buyers are all for it.”

Panelists said fee arrangements that differ from traditional hourly billing will play a role in legal departments’ decision-making. Technology has made legal teams so efficient that it’s hard to justify a high number of hours billed at high, four-figure hourly rates, said Stephanie Wilkins, Editor-in-Chief of Legaltech News.

. . . .

George Rudoy, firmwide leader of the legal consulting vertical of Crowe Global, a Swiss verein, said flat pricing is attractive to in-house legal departments because it incentivizes law firms to become more efficient so lawyers don’t work more hours than is profitable for the firm.

“If things are limited to a certain number, efficiency becomes key,” he said.

And contingency fees are attractive to corporations that want their law firm to share in the risk of pursuing a claim, Zahorsky said.

Pedigree Isn’t Everything

Until recently, and still in many corners of the legal industry, long-term relationships determined who got the work and who got hired. That goes for law firms recruiting from law schools and corporations sending work to their trusted counsel.

But panelists said the “rite of passage” for a young lawyer to practice for six years at a law firm before either making partner or heading in house has evolved; indeed, many young lawyers today have transitioned directly from law school to an in-house post, according to panelists. And law firms are diversifying their own recruitment pool to contend with a dearth in LSAT admission in recent years.

Rudoy said one of his favorite clients was a firefighter before becoming a lawyer, and she paid her way through law school by working at the station.

“When I approached her about the delivery of services through project management, it made sense to her because firefighters are all about process,” Rudoy said.

His anecdote highlights not only the growing emphasis on process management as a staple of attorney-client relationships, but he said it’s also a sign of the diversifying routes people can take to becoming a lawyer.

“For the new generation graduating from law school now, the world is open,” he said. “They try out different things. They might not be lawyers for a while. It’s a much more open field that allows lawyers to be more than one thing.”

Staffing for “large scale litigation,” once a question of how many lawyers of various ranks to staff, is becoming something closer to a movie production, uniquely designed for the needs of a specific project, Zahorsky said.

“It’s not going to be same team always. It’s going to be about who has the particular skill set or expertise,” she said. “Staffing is not just about the numbers but who are the specific experts.”

This skill shake up is also taking place between law firms and the corporate clients they serve. Panelists said in-house lawyers are getting choosier about who they send work to rather than reflexively sending work to the firm with whom they have a long-time relationship or from whom they’ve been recruited.

“It’s common for counsel or an associate to have a relationship from the firm they came from and the corporate legal department will lean on that firm for their work, but now they are asking how much are they reutilizing knowledge,” Rudoy said.

“We see corporate entities being much more diversified with their law firms. If they have a smaller case, like an employment issue, they will look for better service for lower fees,” he added.

Artificial Intelligence Will Force Lawyers to Be Tech-Literate

It’s no revelation that data and technology will continue to play a role in the legal profession as lawyers look for ways to anticipate client needs and automate mundane functions. However, previous legal tech trends haven’t caught on the way panelists expect artificial intelligence to.

Wilkins said firms’ use of technology is going to be a differentiating factor for general counsels choosing firms, especially when it comes to artificial intelligence. Unlike other tech trends in law, AI isn’t a fad, Wilkins said, because its potential uses are so broad.

“AI will get legal to not be the tech dinosaur that it’s been,” Wilkins said.

“AI is not replacing lawyers, but lawyers who use AI are going to replace lawyers who do not,” she continued. “You have to be willing to be innovative because your competition is.”

But panelists said emerging legal tech like AI isn’t a magic bullet, and is only as good as the professionals—and processes—deploying them.

“There needs to be the right people to solve those problems,” Wilkins said. “The best tool in the world can’t help anything if you don’t use it and your people don’t know how to use it.”

Rudoy, a former Am Law 50 firm leader, said he once asked how technology would be used in the process of a certain case, to which a partner asked him why he would ask such a question if he’s not in the IT department.

“Knowledge of tech isolated from legal advice or legal advice isolated from the process is a thing of the past,” Rudoy said.

The competitive environment for gaining client business based on evolving standards has led law schools to begin developing classes on legal business management with a tech focus, said Elizabeth Lugones, COO and senior advisor at UpLevel Ops, which consults in-house legal departments. This is a contrast from a sole focus on the “black letter of the law,” Wilkins said, referring to her own legal education.

“You have got to get them young,” said Lugones. “This shouldn’t be the first time you hear about how to manage a budget or what a CLM is. These are critical concepts for lawyers. We need to start earlier. You’re going to start seeing schools offering classes on how you run the business of law.”

Link to the rest at LegalTech News

PG started talking with attorneys in various bar associations about making their practices more efficient using technology in smart ways more than forty years ago.

PG was an early convert to dedicated word processors before the personal computer showed up. His basic premise was, “Why have your secretary/paralegal/assistant type the same thing twice if you can save an electronic file of the document and, with minimal changes to customize that document for the benefit of another client and another one after that, etc., etc. etc.

When the personal computer showed up, PG bought the first one long, long before any other attorney within 200 miles had purchased one. He went through the small number of word processing software products available before he settled on WordPerfect (let us all give a silent prayer for Allan Ashton and Bruce Bastion for this wonderful product, now left to languish after the two founders sold it about 15-20 years later).

At the height of WordPerfect’s popularity with lawyers, Microsoft Word was a retrograde, difficult to use mess that wouldn’t format legal documents without an immense amount of aggravation.

Wordperfect was very handy to use with macros and PG had at least a hundred of them for his law practice. His two secretaries had their own computers with their own favorite macros on their machines.

For some types of documents, PG could finish an initial client interview, escort the client out of his office to sign a retainer agreement and write a check for an initial payment, then go back to his office, create the document and have it printing out on one of the laser printers near his secretaries before the client had left the law office.

With only a handful of exceptions, one of PG’s assistants would contact the client two-three days later to come back to the law office to review and sign the documents that PG had finished printing within 2-3 minutes after they had left his office following their initial conference.

PG performed about 70-80% of his work on a flat-fee basis instead of charging by the hour. His flat fees were typically about 10%-20% lower than the going rate of every other attorney within twenty-five miles of his office.

PG can confidently say that he had a larger income than any of those attorneys because he handled far more clients efficiently than other law offices did and could generate error-free documents because he and his secretaries used computers and top-quality computer programs as something much more than typewriters.

Charging for legal work by the hour was dumb way back when and it is dumb now. Hourly fees reward inefficient attorneys or OCD attorneys (two sides of the same coin). Attorneys typically have a higher rate of divorce than many other professions because they spend way too much time working in their offices instead of with their families.

Since PG is on a retrospective rant, he will also report that he was very popular with the organizers of Continuing Legal Education programs because he always drew a large crowd (each member of which had paid a fee that was always too high to the CLE organizers) to watch PG while he showed them how he used his computer in his law office.

But that’s all ancient history except too many lawyers are still OCD and inefficient.

PG acknowledges that this this is not the usual discussion fodder he posts about.

For those unfamiliar, The ABA Journal is the monthly magazine published by The American Bar Association. The ABA is the largest voluntary bar association in the United States.

In order to practice law in the United States, a person must be a member of a state bar association. That’s a mandatory bar association that typically requires a graduate from an accredited law school to pass a bar exam. The difficulty of the exam varies from state to state. California has typically had the most difficult bar exam with a typical pass rate of around 50%.

So, the ABA doesn’t include a lot of blue collar lawyers. Back when he was a blue collar lawyer, PG was a member of the ABA because they usually paid his way to attend the Annual Meeting. The reason the ABA paid was because PG would present a continuing legal education program which a lot of lawyers liked in the legal world of long ago. PG also wrote a monthly column for The ABA Journal about computers and lawyers.

Why was PG in demand to be a presenter? He understood how to use computers in a law office at a time when a very small percentage of lawyers knew how to operate a computer, let alone had one in their office. They paid secretaries or paralegals to do that sort of thing for them. Needless to say, that generation of lawyers are long gone to that big bar meeting in the sky.

From the ABA Journal:

Based on federal sentencing guidelines, people found guilty of trafficking large amounts of cocaine usually face lengthy sentences. However, a Texas defendant received what many say is an unusual punishment: five days in prison with credit for time served and direction from the judge to complete her JD.

Chelsea Nichole Madill was accused of trafficking 28.5 kilos of cocaine in a 2018 criminal complaint. She was charged in the U.S. District Court for the Southern District of Texas, and in 2019, Madill pleaded guilty to possession with intent to distribute a Schedule II drug.

Federal sentencing experts say the average penalty for that crime is around five years. In addition to the law school piece and no prison time, Madill was sentenced to three years of supervised release. The 2023 sentencing judgment was written by Southern District of Texas Chief Judge Randy Crane.

Much of the record is sealed, and whether Madill attended or completed law school is not disclosed. There is someone with that name listed as a 2L Florida A&M University College of Law student bar association board member. A 2019 order authorized travel expenses for Madill, directing the U.S. marshal to obtain the cheapest means of noncustodial transportation possible between her Florida residence and the McAllen, Texas, courthouse.

“The court would suggest that the least expensive means would be via bus and not by airplane,” the judge wrote.

Madill did not respond to an ABA Journal interview request sent through LinkedIn, and her phone number listed in court records was disconnected. FAMU Law also did not respond to ABA Journal interview requests.

She could have had what is known as “the girlfriend problem,” says Douglas A. Berman, an Ohio State University Moritz College of Law professor. The term refers to long sentences for women who may not be actively involved in “serious drug dealing” but participate in trafficking to preserve a relationship with a boyfriend or husband, Berman says.

“Maybe the judge thought requiring pursuit of a law degree would reduce the likelihood she’d get involved with the wrong folks,” says Berman, who writes the Sentencing Law and Policy blog.

He adds that rehabilitation should be a goal in sentencing.

“The threat of serious confinement often gets people behaving well. She may have been extra motivated to be the best version of herself while this was pending,” Berman says.

Or it could have been the judge ensuring Madill would keep her word.

“Given the sparseness of the record, my first instinct was, the judge doesn’t want to be snookered by the argument of ‘I’m going to go to law school, so give me a break’ if she’s not going to see it through,” Berman says.

Jesse Salazar, the assistant U.S. attorney assigned to the case, referred an ABA Journal interview request to a public affairs officer. The PAO said the office did not object to the sentence.

https://www.abajournal.com/web/article/order-directs-defendant-to-finish-law-school-could-that-be-a-good-bar-admission-defense

From Smithsonian Magazine:

More than 230 of the world’s wealthiest people, including Elon Musk, Bill Gates and Warren Buffett, have promised to give at least half of their fortunes to charity within their lifetimes or in their wills by signing the Giving Pledge. Some of the most affluent, including Jeff Bezos (who hadn’t signed the Giving Pledge as of early 2023) and his ex-wife MacKenzie Scott (who did sign the pledge after their divorce in 2019) have declared that they will go further by giving most of their fortunes to charity before they die.

This movement stands in contrast to practices of many of the philanthropists of the late 19th and early 20th centuries. Industrial titans like oil baron John D. Rockefeller, automotive entrepreneur Henry Ford and steel magnate Andrew Carnegie established massive foundations that to this day have big pots of money at their disposal despite decades of charitable grantmaking. This kind of control over funds after death is usually illegal because of a “you can’t take it with you” legal doctrine that originated in England 500 years ago.

Known as the Rule Against Perpetuities, it holds that control over property must cease within 21 years of a death. But there is a loophole in that rule for money given to charities, which theoretically can flow forever. Without it, many of the largest American and British foundations would have closed their doors after disbursing all their funds long ago.

As a lawyer and researcher who studies nonprofit law and history, I wondered why American donors get to give from the grave.

Henry VIII had his eye on property

In a recent working paper that I wrote with my colleague Angela Eikenberry and Kenya Love, a graduate student, we explained that this debate goes back to the court of Tudor monarch Henry VIII.

The Rule Against Perpetuities developed in response to political upheaval in the 1530s. The old feudal law made it almost impossible for most properties to be sold, foreclosed upon or have their ownership changed in any way.

At the time, a small number of people and the Catholic Church controlled most of the wealth in England. Henry wanted to end this practice because it was difficult to tax property that never transferred, and property owners were mostly unaccountable to England’s monarchy. This encouraged fraud and led to a consolidation of wealth that threatened the king’s power.

As he sought to sever England’s ties to the Catholic Church, Henry had one eye on changing religious doctrine so he could divorce his first wife, Catherine of Aragon, and the other on all the property that would become available when he booted out the church.

After splitting with the church and securing his divorce, he enacted a new property system giving the British monarchy more power over wealth. Henry then used that power to seize property. Most of the property the king took first belonged to the church, but all property interests were more vulnerable under the new law.

Henry’s power grab angered the wealthy gentry, who launched a violent uprising known as the Pilgrimage of Grace.

After quelling that upheaval, Henry compromised by allowing the transfer of property from one generation to the next. But he didn’t let people tell others how to use their property after they died. The courts later developed the Rule Against Perpetuities to allow people to transfer property to their children when they turned 21 years old.

At the same time, wealthy Englishmen were encouraged to give large sums of money and property to help the poor. Some of these funds had strings attached for longer than the 21 years.

Elizabeth I codified the rule

Elizabeth I, Henry’s daughter with his ill-fated wife Anne Boleyn, became queen in 1558, after the deaths of her siblings Edward VI and Mary I. She used her reign to codify that previously informal charitable exception. By then it was the 1590s, a tough time for England, due to two wars, a pandemic, inflation and famine. Elizabeth needed to prevent unrest without raising taxes even further than she already had.

Elizabeth’s solution was a new law decreed in 1601. Known as the Statute of Charitable Uses, it encouraged the wealthy to make big charitable donations and gave courts the power to enforce the terms of the gifts.

The monarchy believed that partnering with charities would ease the burdens of the state to aid the poor.

This concept remains popular today, especially among conservatives in the United States and United Kingdom.

Link to the rest at Smithsonian Magazine

PG says the Rule Against Perpetuities provides fertile ground for law school examinations.

It also forms a basis for a great many colorful hypothetical question.

He will limit himself to one: The Fertile Octogenarian:

From Wikipedia:

The fertile octogenarian is a fictitious character that comes up when applying the rule against perpetuities. The rule presumes that anyone, even an octogenarian (i.e., someone between 80 and 90 years of age) can parent a child, regardless of sex or health. For instance, suppose that a will devises a piece of land known as Blackacre “to A for her life, and then to the first of A’s children to reach 25 years of age.” A is, at the time the will is probated, an 85-year-old woman. In applying the rule against perpetuities, an imaginative lawyer will argue (and a court must accept under the common law rule itself) that A could have a child in her 86th year and then in her 87th year all of A’s other children could die, then in her 88th year A herself could die. Because the interest will not vest until her new child reaches 25 years of age, which cannot happen until more than 21 years after A and her other children (together who form the “lives in being” to which the rule refers) have all died, the rule against perpetuities makes the entire gift “to the first of A’s children to reach 25 years of age” void. A will hold Blackacre for life, and then the property will revert to the person whose will transferred it to A in the first place. (Actually, it will go to that person’s estate, since the will was probated only after his death.)

While it is true that there is often no statutory maximum age limit to perform an adoption, and adopted children are often treated the same as natural children, so an 86-year-old woman who adopts a newborn child is legally in the same position as an 86-year-old woman who gives birth, the fertile octogenarian rule predates the laws allowing legal adoption.

The legal fiction of the fertile octogenarian assumes that a living person, regardless of sex, age, or physical condition, will always be capable of having more children, thus allowing an interest to vest 21 years after all the lives in being at the time of the grant are dead. Couples have been known to marry in their late eighties.

In certain places this assumption will be limited to a fixed age set by statute. Furthermore, many jurisdictions have discarded old common-law fictions such as the “fertile octogenarian.”

Link to the rest at Wikipedia

PG will note that Blackacre is a term he has only heard in law school classrooms.

An interesting question was asked in the comments to PG’s previous post about Penguin Random House publishing a book by Associate Supreme Court Justice Amy Coney Barrett.

Specifically, the question was whether such a commercial arrangement violated what is commonly known as The Emoluments Clause in the Constitution of the United States. Here’s how that clause reads:

Article I  Legislative Branch

• Clause 8 Titles of Nobility and Foreign Emoluments
• No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

From Constitution Annotated:

Article I, Section 9, Clause 8:

This provision encompasses two distinct commands. The first half, sometimes called the federal Title of Nobility Clause,1 limits the power of the United States by prohibiting it from granting any title of Nobility. The second half, often referred to as the Foreign Emoluments Clause, limits the actions of certain federal officers by prohibiting them from accepting any present, Emolument, Office, or Title, of any kind whatever from a foreign state, without the consent of Congress.

For most of their history, neither the Title of Nobility Clause nor the Foreign Emoluments Clause have been much discussed or substantively examined by the courts. The meaning and scope of the Foreign Emoluments Clause have been examined in opinions from the Department of Justice’s Office of Legal Counsel and the Comptroller General of the United States concerning the obligations of federal officers with respect to gifts, salaries, awards, and other potential emoluments from foreign sources. During the administration of President Donald Trump, the lower federal courts for the first time issued substantive—but often conflicting—decisions interpreting the Foreign Emoluments Clause.

. . . .

The Foreign Emoluments Clause’s basic purpose is to prevent corruption and limit foreign influence on federal officers. At the Constitutional Convention, Charles Pinckney of South Carolina introduced the language that became the Foreign Emoluments Clause based on the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence.1 The Convention approved the Clause unanimously without noted debate.

During the ratification debates, Edmund Randolph of Virginia, a key figure at the Convention, explained that the Foreign Emoluments Clause was intended to prevent corruption by prohibit[ing] any one in office from receiving or holding any emoluments from foreign states.

The Foreign Emoluments Clause reflected the Framers’ experience with the then-customary European practice of giving gifts to foreign diplomats.

Following the example of the Dutch Republic, which prohibited its ministers from receiving foreign gifts in 1651, the Articles of Confederation provided: any person holding any office of profit or trust under the United States, or any of them shall not accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state. The Foreign Emoluments Clause largely tracks this language from the Articles, although there are some differences.

During the Articles period, American diplomats struggled with how to balance their legal obligations and desire to avoid the appearance of corruption, against prevailing European norms and the diplomats’ wish to not offend their host country.

A well-known example from this period, which appears to have influenced the Framers of the Emoluments Clause, involved the King of France’s gift of an opulent snuff box to Benjamin Franklin. Concerned that receipt of this gift would be perceived as corrupting and violate the Articles of Confederation, Franklin sought (and received) congressional approval to keep the gift.

Following this precedent, the Foreign Emoluments Clause prohibits federal officers from accepting foreign presents, offices, titles, or emoluments, unless Congress consents.

The Foreign Emoluments Clause thus provides a role for Congress in determining the propriety of foreign emoluments. Under this authority, Congress has in the past provided consent to the receipt of particular presents, emoluments, and decorations through public or private bills, or by enacting general rules governing the receipt of gifts by federal officers from foreign governments. For example, in 1966, Congress enacted the Foreign Gifts and Decorations Act, which provided general congressional consent for foreign gifts of minimal value, as well as conditional authorization for acceptance of gifts on behalf of the United States in some cases.

Several Presidents in the nineteenth century—such as Andrew Jackson, Martin Van Buren, John Tyler, and Benjamin Harrison—notified Congress of foreign presents they received, and either placed the gifts at Congress’s disposal or obtained consent for their acceptance. Other nineteenth century Presidents treated presents they received as gifts to the United States, rather than as personal gifts. Thus, in one instance, President Lincoln accepted a foreign gift on behalf of the United States and then deposited it with the Department of State. In the twentieth century, some Presidents sought the advice of the Department of Justice’s Office of Legal Counsel on whether acceptance of particular honors or benefits would violate the Emoluments Clauses.

Link to the rest at Constitution Annotated

Here’s what SCOTUSBLOG says on the topic with respect to Supreme Court Justices writing books for publication:

In December 1833, the American Monthly Review commented on a newly published book by Joseph Story. By that time the fifty-four-year-old Supreme Court Justice had written or edited some twelve books. These works included a treatise on bills of exchange, a treatise on pleading, yet another on pleading and assumpsit, commentaries on the law of bailments, a biography, and even a book of poetry titled The Power of Solitude: A Poem in Two Parts. And he had a new work, a three-volume set with a long title: Commentaries on the Constitution of the United States; With a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Of this book, the American Monthly reviewer wrote:

That review was among the first of many such laudatory reviews of a treatise that went on to become canonical in the history of American constitutional law. Before he died in 1845, Joseph Story published another twenty-one books after his Commentaries.

Story’s literary accomplishments notwithstanding, he was not the most prolific – that honor goes to Justice William O. Douglas. This son of a Scottish Presbyterian minister, and former law professor and SEC chairman, wrote fifty-one books on a wide variety of topics ranging from foreign policy to psychiatry, from corporate reorganization to environmentalism, and from stare decisis to manifest destiny.

If nothing else, Douglas was prolific. In 1958 alone, five works were published under his name, and then in 1960 and 1961 he published four different books for each of those respective years.

And then there was Justice Joseph Story, who had thirty-three books under his byline, followed by William Howard Taft, the onetime President and later Chief Justice, who published some thirty-one books.

Link to the rest at SCOTUSBLOG

PG suggests that the precedent set by Justices Joseph Story, William O. Douglas and William Howard Taft likely covers any legal or ethical issues that might apply to Justice Amy Coney Barrett when she agrees with a commercial publisher to publish a book and receive the sorts of compensation that famous people and celebrities who are not Supreme Court Justices receive.

From CNN:

The Onion – a publication best known for its tongue-in-cheek, satirical postings on politics and world events – has taken the very serious step of filing an amicus brief before the Supreme Court.

It is wading into legal advocacy by asking the high court to hear a case about an Ohio man who was arrested and later acquitted for creating a fake Facebook page that looked nearly identical to a local police department’s site.

“Americans can be put in jail for poking fun at the government? This was a surprise to America’s Finest News Source and an uncomfortable learning experience for its editorial team,” the site’s lawyers wrote.

Indeed, The Onion said the headlines surrounding this case seemed like they were ripped off the front pages of its own publication.

The Onion’s amicus brief is itself written in a very tongue-in-cheek, satirical way, though its ultimate aim is genuine – to convince the Supreme Court to take up the case involving free speech and qualified immunity, a legal doctrine that largely shields law enforcement officers from constitutional claims and one that the justices have largely avoided questioning in recent cases.

“The Onion cannot stand idly by in the face of a ruling that threatens to disembowel a form of rhetoric that has existed for millennia, that is particularly potent in the realm of political debate, and that, purely incidentally, forms the basis of The Onion’s writers’ paychecks,” the brief says.

The man at the center of the case, Anthony Novak, was arrested in 2016 after he launched the Facebook page that mirrored the Parma Ohio Police Department’s official Facebook page. Police accused Novak of posting derogatory and inflammatory information under the guise of real officials from the police department, complete with fake job postings accompanied by notifications that the department discouraged minorities from applying.

Novak was charged with one felony count of disrupting public services, but was later acquitted at trial.

Novak’s attempts to sue the police department for violating his free speech rights were most recently stopped by the Sixth US Circuit Court of Appeals, where a three-judge panel ruled in April that because officers there reasonably believed they were acting within the bounds of the law, Novak could not continue with his lawsuit against them.

But the panel of judges still was critical of the actions of the police officials.

“Granting the officers qualified immunity does not mean their actions were justified or should be condoned,” the appeals court wrote. “Indeed, it is cases like these when government officials have particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts.”

Link to the rest at CNN

PG can’t believe that the local Ohio city attorney actually pursued a felony charge in this matter and that local judges failed to immediately dismiss it.

PG notes that the appellate court’s opinion identifies the city’s police management personnel and the two local judges by name, which is not necessary for its written decision. PG suspects this may have represented a legal backhand to embarrass the individuals involved for their stupidity even if the appeals court found Mr. Novak’s claim could not be pursued.

You can read the Sixth Circuit’s full opinion here.

From The Chronicle of Higher Education:

Ted Spencer still looks back. No one who lives through a grueling legal saga defined by questions about race, equity, and the Constitution could ever board up the windows to the past.

Spencer was director of admissions at the University of Michigan at Ann Arbor when the U.S. Supreme Court in 2003 decided two cases challenging the institution’s race-conscious admissions policies. The justices handed one plaintiff a victory in Gratz v. Bollinger. But Michigan won the day because the court’s ruling in a companion case, Grutter v. Bollinger, affirmed that colleges could continue considering applicants’ race and ethnicity as one of many factors. The landmark decision shored up the foundation on which a generation of admissions practices would stand. And many people in academe rejoiced.

But for Michigan, the celebration was fleeting: The opponents of affirmative action soon extinguished the university’s victory with a successful ballot initiative that banned the use of racial preferences throughout the state.

What Spencer sees in those momentous events is complicated: a triumph with a 10-foot-tall asterisk, a backlash presaging the lawsuits now looming over academe. This fall, the Supreme Court will hear two cases challenging the constitutionality of race-conscious admissions policies at Harvard University and the University of North Carolina at Chapel Hill. The court’s 6-3 conservative majority has been hacking down precedents such as Roe v. Wade. So there’s a good chance that it will shred Grutter, ending the longstanding use of race in admissions throughout the land.

You might dread that outcome or welcome it. Either way, Grutter matters because it invites the nation to consider what’s really at stake in the age-old debate over race-conscious admissions. It’s something more consequential than whether Becky with the Good Grades gets into her dream college. Grutter matters because it poses a fundamental question about fairness, asking us which kind of society we want to live in: one that clings to the ideal of colorblindness at all costs, or one that recognizes the ongoing struggle of integration? Because Grutter’slegacy might soon disappear into the whooshing downspout of history, it’s worth taking a look back.
Spencer, now retired, believes that many people have forgotten what the Michigan cases were all about, if they ever even knew: “I would tell colleagues, You can’t just say ‘Michigan was sued.’ You have to explain why, the background.”

His own story entwines with that background and the essential questions that Grutter poses. It’s the story of a Black man raised in the Deep South during segregation who became a leader in a field long dominated by white men.

Link to the rest at The Chronicle of Higher Education

PG notes that, while Gratz and Grutter were important affirmative action cases, the one that started it all was the US Supreme Court case titled Regents of the University of California v. Bakke, handed down in June of 1978.

The Bakke story stretches back to Brown v. Board of Education (1954) and the Civil Rights Act of 1964, which continued the process of desegregating schools and outlawed discrimination on the basis of race. Although Congress officially ended segregation, there was a reluctance to actually integrate schools, and a disparity in college-preparedness remained between races.

Here’s how The National Constitution Center describes Bakke:

The Bakke story stretches back to Brown v. Board of Education (1954) and the Civil Rights Act of 1964, which continued the process of desegregating schools and outlawed discrimination on the basis of race. Although Congress officially ended segregation, there was a reluctance to actually integrate schools, and a disparity in college-preparedness remained between races.

Thus, colleges like the University of California, Davis School of Medicine adopted policies of racial favoritism, policies designed to compensate for unfair disadvantages. Specifically, the school established a program to designate 16 of the 100 spots in each class for minority students.

Allan Bakke, a white male in his thirties, twice applied for admission at the school but was rejected, partially because of his advanced age. Bakke’s interviewer considered him “a very desirable candidate”; his GPA was comparable to other admittees and his MCAT scores were all significantly greater. Compared to the special admittees of UC Davis’s affirmative action program, he beat every student in every metric in both of his application classes.

Bakke, exasperated by the rejections, filed suit, contending that the University of California violated the equal protection guarantee of the 14th Amendment and the Civil Rights Act. Ironically, he argued, a law that was passed to promote equality was being employed for the opposite purpose.

The case rose through federal courts to reach the Supreme Court of California, which struck down the admissions policy and ordered Bakke’s admission. Shocked at the surprising judgment from a traditionally liberal court, the frustrated university requested a stay of admission. Shortly thereafter, the U.S. Supreme Court accepted the case for its October 1977 term.

National interest in the case was enormous—58 amicus briefs were filed, setting a Court record until 1989, and reflecting the many and diverse arguments on the issue.

Ultimately, the Court was mixed in its decision: six different Justices wrote opinions on the case, with Justice Lewis Powell writing the controlling opinion and virtually splitting his vote between two groups of four Justices.

Affirming the lower court, Powell and four of his colleagues determined that specific racial quotas in university admissions are unconstitutional. In Powell’s words, “The fatal flaw in … [UC’s] preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment.”

The majority argued that, by explicitly differentiating racial groups for consideration, the university violated the Constitution’s guarantee of equal protection under the law. It was unfair, they said, that minorities were eligible for 100 spots in the class when whites could only vie for 84. Thus, the Court struck down racial quotas and ordered Bakke admitted.

Yet Powell also joined the remaining four Justices in affirming the legality of a program that considered racial background as one of many holistic factors in admissions decision. In his view, such a policy did not specifically exclude anyone from admission.

Discussing a Harvard race-awareness program, Powell argued that even though “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file … it does not insulate the individual from comparison with all other candidates for the available seats.” With each applicant considered for an array of qualities, someone like Bakke would not be “foreclosed from all consideration from [a] seat simply because he was not the right color or had the wrong surname.”

PG was just out of law school when Bakke was handed down and, when he read the decision, he had a sense he had that this decision hadn’t addressed all the issues it should have and would not stand the test of time. Basically, the Supreme Court kicked the can down the road.

Twenty-five years later, in the landmark case of Grutter v. Bollinger (2003), the Supreme Court affirmed its decision in Bakke by ruling that the University of Michigan Law School’s race-conscious admissions policy was constitutional because it did not involve the use of explicit quotas. But Bakke remains fundamental precedent on affirmative action.

Link to the rest at The National Constitution Center

When one encounters a Supreme Court decision in which “six different Justices wrote opinions,” one can be assured that the Court agreed on the outcome, but couldn’t agree exactly what legal theory or theories supported that outcome. A skeptical observer might conclude that the affirming justices knew the outcome they desired, but weren’t quite sure about how statutes and cases could be put together in a way that indicated those justices weren’t pulling a Constitutional right out of thin air.

Many reasonable people can and do agree that the Supreme Court caused a good outcome for a group of Americans that had been treated quite badly for a very long time.

Freeing them from slavery was an enormous and brutal undertaking that imposed an extremely high cost on both the North and the South. As PG has previously written, the Civil War, a war killed more Americans than were killed all the other wars in which the nation had engaged during its existence combined up to part-way through the Vietnam War, when, after over a hundred years, the death toll of American soldiers in all those other wars finally exceeded the death toll in the Civil War.

This coming November, over 50 years since the Bakke decision was handed down, the Supreme Court is scheduled to hear challenges to the consideration of race in the admissions process at Harvard and the University of North Carolina in two separate cases. More than a few court watchers think the Court will decide that what is now called affirmative action and/or diversity in college in the selection of applicants who are admitted to a college or university is unconstitutional if it is a lightly disguised version of racial discrimination against students of one or more races to favor students of another race.

One of the changes that has occurred over the past couple of decades is that affirmative action places a greater burden on applicants of Asian descent than it does on applicants who are white. To the best of PG’s recollection, admission of Asian students was not a factor considered by the Supreme Court in any of its previous major decisions on the topic of race and college admissions.

From Slate:

A Virginia state court judge dismissed the petitions against two books Tuesday, ending for now an attempt by local Republicans to rule the books obscene.

“I agree with the defense that the statute is facially invalid,” said retired judge Pamela S. Baskervill, who was assigned the case after all the local circuit court judges recused themselves. She was referring to the obscure Virginia state law that a Republican state legislator had used in his attempt to declare Maia Kobabe’s graphic memoir Gender Queer and Sarah Maas’ fantasy romance A Court of Mist and Fury “obscene for minors.”

Tim Anderson, a lawyer and Republican Virginia state delegate whose district includes Virginia Beach, argued in court that the statute, though inartfully worded, allowed a judge to rule on the books’ obscenity for a specific class of reader. (Another Republican, Tommy Altman, filed the petition; Altman recently lost his primary for a House seat in Virginia’s 2nd district.) “Even if one part of the law is deficient, it doesn’t make the entire law unconstitutional,” he argued. “Look, the General Assembly is a citizen legislature. We’re not lawmakers. Things like this happen and a law get written a confusing way.”

“But I have to interpret it!” Baskervill said from the bench. In her orders, she declared the law “unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia.”

. . . .

The case—part stunt, part trial balloon—had drawn attention as a worrying salvo in the right wing’s continuing attempts to redefine obscenity to mean, as PEN’s Jonathan Friedman told me, “any mention of sexuality or other topics they find distasteful.” More than 10 lawyers appeared in court Tuesday opposing the petition—representing Maas, Kobabe, their publishers, Barnes and Noble, the ACLU, and a coalition of Virginia bookstores and literary nonprofits. In arguments, Barnes and Noble’s attorney, Bob Corn-Revere, rejected Anderson’s claims that he wasn’t trying to ban the books. “When you’re asking a court to make a ruling in criminal law that has the result of restricting the sale of a book—that’s censorship,” he said.

After Baskervill dismissed the case, I asked Eden Heilman, the legal director of the Virginia ACLU, if it didn’t seem annoying that the ruling found fault with the law, not with the operatives trying to use a bad law for bad ends. “No, we’re pleased she focused on the law,” Heilman said. “The law is the problem.” While this court decision won’t invalidate the statute—it would take the legislature, the Virginia Supreme Court, or the U.S. Supreme Court to do that—Heilman said she thought this decision would prevent other would-be litigants from attempting to use the law in the same way.

Link to the rest at Slate

PG says that any elected representative in a state legislature who says citizens who run for seats in that legislature are “not lawmakers” is a complete idiot.

They are running in such elections to become lawmakers. Voters choose them to become lawmakers. A majority of the legislators make laws, zillions of them, in every state in the US plus the federal government.

The judge who complains, “But I have to interpret it!” is also sounding a bit idiotic. That’s one of the things judges do on a regular basis – “Did Johnnie Outlaw violate Section 237 of the laws of the State of Schock?” If the answer is affirmative, the judge decides what punishment is appropriate. If the answer is negative, Johnnie goes free.

From ABC News:

The California state Senate passed a bill that would limit the use of rap lyrics as evidence in criminal proceedings — a controversial and common practice by prosecutors that has garnered national attention amid the indictment in Georgia against rappers Young Thug and Gunna.

Bill AB 2799, which is expected to be signed by Gov. Gavin Newsom after clearing the state assembly, would be the first legislation of its kind to be signed into law.

According to the bill, the legislation seeks to “ensure that the use of an accused person’s creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence.”

Referencing the lyrics of hip-hop artists in criminal charges is not new and is a practice that has drawn criticism from both freedom-of-speech advocates and the musicians themselves, who argue that lyrics — often with no factual connection to a case — are not a true reflection of reality or the artists’ state of mind and serve to prejudice a jury against a defendant.

The bill, which was sponsored by assembly member Reggie Jones-Sawyer, would require a judge to determine the admissibility of the lyrics in question as evidence, and whether they are directly linked to an alleged crime.

. . . .

“It would also recognize that the use of rap lyrics and other creative line expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice,” according to the text of the bill.

Similar legislation limiting the use of rap lyrics in court passed the New York state Senate earlier this year, but stalled in the state assembly. Lawmakers in Congress last month introduced the first federal legislation addressing this practice, garnering widespread support from the music industry.

. . . .

The Restoring Artistic Protection Act — the RAP Act — which was co-sponsored by Reps. Hank Johnson (D-Ga.) and Jamaal Bowman (D-N.Y.), seeks to amend the federal rules of evidence “to limit the admissibility of…a defendant’s creative or artistic expression” in a criminal proceeding, according to the text of the bill.

Supporters of the RAP Act include the Recording Academy, the Recording Industry Association of America, Universal Music Group, Sony Music Group, Warner Records, Atlantic Records, Warner Music Group and the Black Music Action Coalition.

“Evidence shows when juries believe lyrics to be rap lyrics, there’s a tendency to presume it’s a confession, whereas lyrics for other genres of music are understood to be art, not factual reporting,” Johnson said in a statement. “This act would ensure that our evidentiary standards protect the First Amendment right to freedom of expression.”

Link to the rest at ABC News

From FIRE:

Book bans seek to enlist the power of the state to dictate what each of us and our families may or may not read — and thus are sharply at odds with the First Amendment and our pluralist democracy.

That’s the message delivered by FIRE and the Woodhull Freedom Foundation in an amici curiae brief filed today with a Virginia state court tasked with determining whether two award-winning books, Maia Kobabe’s “Gender Queer” and Sarah J. Maas’ “A Court of Mist and Fury,” are legally obscene.

In May, two Virginia politicians filed a petition against the books in Virginia Beach Circuit Court, seeking declarations of obscenity that, pursuant to state law, would prohibit bookstores from selling either work. Their request invoked a rarely-used state law that allows Virginians to sue books and to compel their publishers and authors to defend them in court. After a retired state judge found “probable cause” that the works are “obscene for unrestricted viewing by minors,” the petitioners sought temporary restraining orders to bar commercial distribution of the book.

In today’s brief, FIRE and the Woodhull Freedom Foundation argue that neither book comes close to constituting obscenity as defined for minors under longstanding state and federal precedent. The books “will not appeal to or have value to every audience,” we recognize, but the First Amendment only requires that the books have “value to an audience” — and both plainly do.

Moreover, FIRE and Woodhull argue, book bans are antithetical to the First Amendment and the pluralist values it protects:

Some readers will choose not to purchase or read the books at issue in this case. Some retailers and some librarians will decline to place them on the shelves. Our Constitution reserves these choices for individuals and forbids them from the state. In our pluralist democracy, the First Amendment prescribes a remedy for audiences offended by protected speech: those who seek to avoid “bombardment of their sensibilities” may do so “simply by averting their eyes.” Cohen v. California, 403 U.S. 15, 21 (1971). Declaring books obscene because they include discussions or depictions of sex would reprise a discredited era of censorship repudiated by decades of Supreme Court precedent.

Drawing a link between the “current national push to ban books discussing sexuality, identity, and other controversial topics” and the “increasing comfort with censorship that amicus FIRE has fought against for over twenty years on campuses nationwide,” our brief makes the case for freedom of thought.

Link to the rest at FIRE and here’s a link to a page where you can read the FIRE Brief.

FIRE stands for the Foundation for Individual Rights in Education. FIRE summarizes its mission as follows:

FIRE’s mission is to defend and sustain the individual rights of all Americans to free speech and free thought—the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

PG hasn’t agreed with 100% of FIRE’s positions, but he does agree with a great deal of what FIRE advocates and the causes it takes to court.