This week’s NYTimes Magazine economics column is all about timesheets. While the whole thing is worth a read, I found the history of timesheets especially interesting:
The notion of charging by units of time was popularized in the 1950s, when the American Bar Association was becoming alarmed that the income of lawyers was falling precipitously behind that of doctors (and, worse, dentists). The A.B.A. published an influential pamphlet, “The 1958 Lawyer and His 1938 Dollar,” which suggested that the industry should eschew fixed-rate fees and replicate the profitable efficiencies of mass-production manufacturing. Factories sold widgets, the idea went, and so lawyers should sell their services in simple, easy-to-manage units. The A.B.A. suggested a unit of time — the hour — which would allow a well-run firm to oversee its staff’s productivity as mechanically as a conveyor belt managed its throughput. This led to generations of junior associates working through the night in hopes of making partner and abusing the next crop. It was adopted by countless other service professionals, including accountants.
[Editor’s Note: This turned a bit rambly and I’m definitely out of my zone talking about the law, so feel free to skip if you’re not up for a non-lawyers opinion on the law after reading two articles about it.]
Sorry, but I’ve got some time this morning and, like many of you I’m sure, I’m spending it reading as much as I can about yesterday’s situation in Boston. If you were watching TV while the second suspect, Dzhokhar Tsarnaev, was found or listening later during the press conference, the question of whether he would be/was read his Miranda rights came up. In the moments after the capture there was some confusion, which was eventually cleared up during the press conference when the US Attorney Carmen Ortiz confirmed that he had not been read his Miranda rights under the “public safety” exception. I, like most I’d imagine, had never heard of the public safety exception before yesterday (or spent much time thinking about Miranda rights, to be honest).
Slate had an excellent explanation of what happened and why it’s a dangerous precedent:
And so the FBI will surely ask 19-year-old Tsarnaev anything it sees fit. Not just what law enforcement needs to know to prevent a terrorist threat and keep the public safe but anything else it deemed related to “valuable and timely intelligence.” Couldn’t that be just about anything about Tsarnaev’s life, or his family, given that his alleged accomplice was his older brother (killed in a shootout with police)? There won’t be a public uproar. Whatever the FBI learns will be secret: We won’t know how far the interrogation went. And besides, no one is crying over the rights of the young man who is accused of killing innocent people, helping his brother set off bombs that were loaded to maim, and terrorizing Boston Thursday night and Friday. But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.
This is one of those things where I don’t know quite how to feel. The FBI has a pretty extensive article on the subject that shed some additional light (I know the FBI is probably not the most balanced outlet for this sort of stuff, but the article is a pretty good and comprehensible look at the history of the law and, also, the FBI is very incentivized to get this stuff right since if they don’t any questions could be thrown out). The public safety exception was apparently introduced in a case where the police were chasing a rapist who, the victim informed them, had a gun. When they cornered him in a grocery he had an empty holster and the police asked where the gun was. The man, Benjamin Quarles, told the police where he hid the gun and they retrieved it. The court excluded the gun because the police had not read Quarles his rights. The ruling was appealed and eventually reached the supreme court, who decided that in situations where public safety was endangered suspects could be questioned without being read their Miranda rights. (I’m not entirely sure why I’m summarizing all this and I’d suggest reading the whole article.)
Anyway, the more interesting case, also mentioned in the FBI piece, seems like a case where the police raided an apartment in Brooklyn where two suspected bombers lived. “During the raid, both men were shot and wounded as one of them grabbed the gun of a police officer and the other crawled toward a black bag believed to contain a bomb. When the officers looked inside the black bag, they saw pipe bombs and observed that a switch on one bomb was flipped.” From there, the police used the public safety exception to question one of the bombers who had not yet been read his rights:
Officers went to the hospital to question Abu Mezer about the bombs. They asked Abu Mezer “how many bombs there were, how many switches were on each bomb, which wires should be cut to disarm the bombs, and whether there were any timers.” Abu Mezer answered each question and also was asked whether he planned to kill himself in the explosion. He responded by saying, “Poof.”
This case seems, at least to me, to be much closer to the root of the question. I don’t really understand how a gun hidden in a supermarket presents a public safety concern since presumably the police could search the market for the gun after arresting the suspect. However, this latter situation, where there was a big bag of bombs, some of them ready to explode, seems like a pretty reasonable time to question someone prior to their rights being read.
What’s interesting about this, though, is the question isn’t really whether you can question someone before their rights are read, since it’s obviously possible (and likely a frequent occurrence). But rather, in what situations can those questions be used in court against the suspect. Here, again, I agree with Slate: If the questions they asked Tsarnaev were about whether he had planted more bombs around Boston, then that’s fair game, but as soon as they move outside that things start to feel a lot less right.
Interesting, the FBI article goes on to explain that Abu Mezer, from the bag of bombs, felt the same way and eventually tried to get his last statement, about whether he intended to kill himself, thrown out:
Abu Mezer sought to suppress each of his statements, but the trial court permitted them, ruling that they fell within the public safety exception. On appeal, Abu Mezer only challenged the admissibility of the last question, whether he intended to kill himself when detonating the bombs. He claimed the question was unrelated to public safety. The circuit court disagreed and noted “Abu Mezer’s vision as to whether or not he would survive his attempt to detonate the bomb had the potential for shedding light on the bomb’s stability.”
Here, without reading the full decision or being a lawyer or knowing anything else about the case, I think I disagree with the court. Seems pretty thin to suggest that the police were given valuable information about the “stability” of the bomb by asking whether he intended to kill himself.
The New Yorker has a really interesting blog post about how the 2nd amendment came to mean what many now believe it to mean. Turns out we didn’t always see things the way we do:
Enter the modern National Rifle Association. Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup d’état at the group’s annual convention in 1977 brought a group of committed political conservatives to power—as part of the leading edge of the new, more rightward-leaning Republican Party. (Jill Lepore recounted this history in a recent piece for The New Yorker.) The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as “a fraud.”
The article goes on to explain how interesting it is that this represents a “living” constitution that adapts with the times, something conservatives generally fight against:
But the N.R.A. kept pushing—and there’s a lesson here. Conservatives often embrace “originalism,” the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a “living” constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. (Reva Siegel, of Yale Law School, elaborates on this point in a brilliant article.)
Slate has a relatively interesting article about a trademark dispute over the Emeco Navy Chair, but what I liked more is the word “genericide”:
Let’s turn to the dispute itself. First, Emeco’s claim to a trademark on the term “Navy chair” is weak. Why? Because over the years that has become a generic label for this type of all-metal, 1940s-style chair, rather than a name that immediately conjures up a Pennsylvania company named Emeco. And in American law, if a product’s name becomes generic—such as aspirin, linoleum, thermos, or zipper—it can no longer be trademarked. Lawyers call this “genericide,” and the fear of becoming generic is one reason Kleenex is always reminding you that they sell “Kleenex-brand tissues.” The makers of Kleenex are trying to save their brand from genericide by reminding you that Kleenex is a particular brand of tissues, not a generic name for tissues.
Douglas Rushkoff asks some interesting questions about the lengths we’re going in the patent battle between Apple and the rest of the industry:
But when it comes to gestures, such as the now ubiquitous “pinch and zoom” technology through which users stretch or shrink pictures and text, well, that no longer feels quite the same. They are gestures that may have begun on the device, but which have become internalized, human movements. When my daughter was three I used to watch her attempt to enact those same swipes and stretches on the television screen – a phenomenon so prevalent that many television dealers now keep a supply of Windex handy to clean their giant flat screens of children’s fingerprints on a regular basis.