Blawg Review #268

"In my many years I have come to a conclusion that one useless man is a shame, two is a law firm, and three or more is a congress." — John Adams*

Welcome to the Flag Day 2010 edition of Blawg Review, the weekly law blog carnival.  If you need to get your bearings, feel free to peruse previous HealthBlawg-hosted editions of Blawg Review: #88, #129, #154 and #211.

John Adams is a person of interest for this edition, because he made his home in Quincy, MA.

Quincy is a point of interest because not only did Adams give it to his son as a middle name, it also happens to be the home of the longest-running Flag Day parade and celebration in these United States.  (It was rained out this year, but check out the, um, boring video of last year's parade.)

Quincy is also the home of the granite quarries that produced the Bunker Hill Monument, and that lay empty and then full of rainwater for years, inviting foolhardy divers — many of whom died — until the quarries were filled with dirt dug up from the Big Dig … but I digress.  The quarries also bring to mind The Quarrymen, but hey, that's probably grist for a whole 'nother post.

Back to Quincy and John Adams.

One of Adams' notable achievements for the Commonwealth of Massachusetts — setting aside his many achievements on behalf of the US of A — was drafting its Constitution, a document which predates the US Constitution, and served as its model in many respects.  Dating from 1780, it is the world's oldest functioning constitution.

Given the recent doings of the Supremes, he may well be turning in his grave.  Before penning the Massachusetts constitution, Adams put some patriots' noses out of joint by representing the redcoats implicated in the Boston Massacre.  He had a strong belief in the right to counsel, a right (together with the right to avoid self-incrimination) that has recently taken a giant step backwards, courtesy of Justice Kennedy and, yes, Elena Kagan.  Check out Scott Greenfield's post on Berghuis v. Thompkins at Simple Justice, and the Huffington Post piece that explicates the role of "The Tenth Justice" in significantly rolling back Miranda protections in this case.  Once he got A Round Tuit at Infamy or Praise, Colin Samuels deftly compared the Court's logic to a couple of classic Monty Python sketches.

Adams once wrote, "National defense is one of the cardinal duties of a statesman."  We haven't heard of any 18th-century waterboarding incidents under the watchful eye of the Continental Army, or on Adams' watch.  They managed quite well without resorting to such tactics.  This week, though, word has come out alleging secret human subject research at the hands of the CIA.  More precisely, Steve Vladeck writes at PrawfsBlog, a report recently issued by Physicians for Human Rights calls for a US government investigation, because most of the information that could prove or disprove such an allegation is classified.  (Unlike another recently reported claim against the CIA, the human subject research issue is far from frivolous.) Adams would be concerned.  As he wrote, "a Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever."

A great deal of virtual ink is spilled these days in examining the doings of Apple, Facebook and Twitter.  Brad Burnham, a VC at Union Square Ventures, writes this week that he finds it helpful to think of these global web platforms as governments, rather than ecosystems — and they aren't democracies.  Adams found participation in democracy to be personally ruinous; upon accepting a seat in the Massachusetts legislature, he wrote to his wife Abigail the he had thereby "consented to my own ruin, to your ruin, and the ruin of our children. I give you this warning, that you may prepare your mind for your fate."  One would think he would despair at the rise of the global corporations that are, in effect, an oligarchy — at least within certain spheres of influence.  (As I write this, my son is working on a school paper about Globalization: Promise or Peril.)

Over at Popehat, great gnashing of teeth is going on due to Rep. James ("Tex") Sensenbrenner's (R-WI) apparent conflict of interest in dealing with the BP oil spill.  Late in life, John Adams was also fed up with what he saw played out on the public stage:  "Public affairs go on pretty much as usual: perpetual chicane

ry and rather more personal abuse than there used to be… Our American Chivalry is the worst in the world. It has no Laws, no bounds, no definitions; it seems to be all a Caprice."  While back in the day Adams probably had more to say about tea than about coffee, I thought I'd share this cautionary tale about a BP coffee spill.

Some would prefer to see Tex muzzled on this issue.  And some physicians would like to see their patients muzzled.  New information on the innards of the Medical Justice approach to stifling negative feedback by patients on internet ratings sites (patient assigns copyright in comment to doc, so doc can send DMCA takedown notice to review site) motivated Evan Falchuck to add to the discussion on this practice at See First.

When patients are steamed due to a potential medical error, a clear-thinking physician or hospital administrator will initiate a medical apology.  In this context, as in others, the perceived sincerity of the apology is key.  On that front, Matt McCusker writes at Deliberations that BP and Toyota have a lot to learn … from a baseball umpire.

While we're in the health care arena, let's visit a moment with Dr. Rob, who offers a practicing physician's view of the HITECH Act – that part of the Recovery Act that promises to inject tens of billions of dollars into the health IT economy for "meaningful use" of "certified" electronic health records systems – at his blog, Musings of a Distractible Mind.  He illustrates his issues with meaningful use by taking a look at the effects of the No Child Left Behind law.

Oh, and don't get sick or injured in July.  (Thanks to Alan Crede for that reminder.)

The TV show Glee, co-created by Evan Falchuk's brother, Brad, provides fodder for two posts on copyright law this week.  Check out Peter Black's post at Freedom to Differ, which considers and responds to Christina Mulligan's post at Balkinization: Copyright: The Elephant in the Middle of the Glee Club.  Writes Mulligan:

You might be tempted to assume that [the] tension [between intellectual property rights on the one hand and self-discovery through hommage and reinterpretation on the other] isn’t a big deal because copyright holders won’t go after creative kids or amateurs. But they do: In the 1990s, the American Society of Composers, Authors and Publishers (ASCAP) asked members of the American Camping Association, including Girl Scout troops,to pay royalties for singing copyrighted songs at camp. In 2004, the Beatles’ copyright holders tried to prevent the release of The Grey Album – a mash-up of Jay-Z’s Black Album and the Beatles’ White Album — and only gave up after massive civil disobedience resulted in the album’s widespread distribution.

Ah, the Beatles.  The Fab Four bring us back to Quincy, as an early incarnation of that fabled quartet was first let loose upon the world as … the Quarrymen.

Keene Trial Consulting let us know that a court in Fresno, California is taking voire dire to a whole new level, where prospective jurors in a gang tattoo case involving a minor were recently asked if they have tattoos.  This case leads my musical memory down two divergent paths: It brings to mind Greg Allman's I'm No Angel ("Let me show you my tattoo") and also Kermit the Frog channeling a member of a performing quartet that predated the Quarrymen (Groucho Marx, for you young 'uns) singing Lydia, The Tattooed Lady (featuring, appropriately enough for Flag Day, the Stars and Stripes … look for it.)

But is it art?  Brian Cuban handicaps a future 9th Circuit First Amendment appeal on zoning vs. tattoo. 

Also in the realm of voire dire, Bob Coffield points us to a West Virginia case where a juror's undisclosed MySpace friending of a defendant led to a reversal of a conviction.

US District Court Judge John Kane spoke at his law school class' 50th reunion about the broken social contract between young lawyers and many large law firms, but also managed to cite St. Francis, Buddha, Mohammed, Maimonides, Aristotle ("the only way to assure yourself happiness is to give happiness") and the CEO of The Onion.  Maxwell Kennerly offered his observations on the speech, which had been previously posted at Idealawg.

For the inside baseball post of the week, Norm Pattis pulls back the curtain on an IRL blawger get-together, and essentially concludes that, well, nostalgia isn't what it used to be, and then retreats behind metaphorical wax in the ears, resisting the siren song (squeal?) of a new cadre of blawgers.

To end this edition on an uplifting note, I will leave you with John Adams' view on the coming decline and fall:  "Remember democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide."  Nah, scratch that; better get a little more uplifting….  Adams wrote the following to Abigail, in 1780 — something to think about on this Flag Day 2010:

I must study politics and war that my sons may have liberty to study mathematics and philosophy. My sons ought to study mathematics and philosophy, geography, natural history and naval architecture, navigation, commerce and agriculture, in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry, and porcelain.  

Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

* Don't believe everything you read on the internet ….  The "useless man" quote at the top of this post was said, not by the historical John Adams, but by the character John Adams in the Broadway musical, 1776.  The other Adams quotes are courtesy of a variety of easily located online quotation sites.  And don't forget that Wednesday June 16th is Bloomsday.