November 25, 2003


Via Ernie, "Alextronic Discovery" a legal weblog focused on electronic discovery issues. (Too bad there's no RSS feed. That really sucks.)

That should come in very handy for a case I'm working on, in which I expect a LOT of electronic discovery to take place.

And I mean a lot.

Posted by wasylik at 06:59 PM | Comments (0) | TrackBack

You Will Know Them by the Trail of Spam

In other horrible news, the Senate has found a way to make the spam problem worse than ever by passing the "Can Spam Act," whose primary effect will be to sweep aside more effective state laws regarding spam.

(I must admit, "more effective" isn't much. I have for some time believed that the solution to spam will be technological rather than legislative, most likely in the form of a revised e-mail protocol that requires authentication of senders and prohibition of open relays)

This bill is "essentially the same as the one that the House of Representatives passed in a 392-5 vote last week." As noted above, the primary effect of the new law will to create a federal preemption of state laws regulating spam, wiping them all away. The new federal law, if signed by the President, will eradicate the right of private citizens to sue for spam violations that currently exist in many states, and will impose an "anti-spam" list akin to the FTC's "Do Not Call List." The FTC has already objected to this proposal, citing the obvious grounds that spammers outside the jurisdiction of the U.S. will simply use the registry as a confirmed e-mail list.

How do I know the bill is bad? The Direct Marketing Association thinks it's a great idea.

The DMA, which for many years opposed anti-spam legislation, has been eager to get a federal bill on the books to protect their members from multiple state-level laws. The DMA supported the bill but raised some concerns with the do-not-spam list, which they feared would harm "legitimate" marketers.

Anti-spam advocates, on the other hand, hate it:

Anti-spam advocates are unhappy because the legislation would invalidate several state laws that are tougher on spam. California and Washington, for example, allow people to sue spammers, whereas the federal bill does not. California's law also allows fines against spammers of up to $1,000 per e-mail message with a cap at $1 million. Two of the five House lawmakers who opposed the bill were California Reps. Mike Honda (D) and Zoe Lofgren (D), who criticized the measure for undermining California's law, the most strict in the nation.

It's been a bad week all around - the nation would have been far better off if the Senate had called it quits last Friday and taken an early start to the Thanksgiving holiday.

UPDATE: In a little bit of good news, the bill isn't yet ready to head to the White House, because the Senate tweaked it:

Minor changes made to the congressional anti-spam bill in the Senate will require the House to vote once again on the measure before it can be sent to the White House. That vote is expected to happen when Congress returns after the Thanksgiving break.

Of course, it's doubtful that the bill will lose a new vote in the House when the original margin was so wide. Got spam? File your lawsuit this week.

Posted by wasylik at 06:15 PM | Comments (0) | TrackBack

A Raw Deal for All

Funny thing. I do some of my best thinking in the shower, and this morning I wondered what Ron Paul would have to say about this weekend's huge expansion of the entitlement state. As it turns out, I didn't have to wonder long... Tom points to the Congressman's timely piece on the failures of Republicans to battle the growth of government.

I'm thinking harder and harder about gathering support for a write-in drive for Rep. Paul for President in '04.

(be sure to check out Tom's comments section, where liberal commenter Finn displays some good old fashioned left-wing ignorance...)

Two other commentaries on the prescription-drug boondoggle. First, Robert Samuelson ("Medicare as Pork Barrel") shows it wasn't really needed in the first place. Think vast numbers of seniors are going without prescriptions they can't afford? It just isn't so:

[A] government survey of Medicare recipients in 2002... asked this question: "In the last six months, how much of a problem, if any, was it to get the prescription medicine you needed?" The answers were: 86.4 percent, not a problem; 9.4 percent, a small problem; 4.2 percent, a big problem. Medicare has about 41 million beneficiaries, so even 4.2 percent represents about 1.7 million people. The survey doesn't say whether their problems reflected high drug costs, doctors' reluctance to write prescriptions or something else. But most people can somehow afford drugs.

So, for those 1.7 million people, we've created a bank-busting entitlement program, a perpetual blank check, as a bribe to 41 million people. Scratch that. The 41 million aren't the ones who wanted this bill... it was the special interests. The elder lobby, the insurance companies, the drug companies, and the corporate pension plans looking to drop drug coverage.

E.J. Dionne accuses the Dems of rolling over and spreading their legs for the bill in "The Democrats Take a Dive":

The battle over a Medicare prescription drug benefit proves that Republicans are ruthless and determined and that Democrats are divided and hapless. Republicans have changed the rules in Washington, but some Democrats still pretend to be living in the good old days.... If Democrats wanted to give Bush a political victory, they could have insisted on a much better deal. Instead, their negotiators sold out for a bill full of subsidies to the HMOs that will make it harder to control drug costs. The moral, yet again, is that Republicans are much tougher than Democrats and fight much harder to win.

It's not the first time the Democrats have turned jellyfish, and it won't be the last.

Posted by wasylik at 05:57 PM | Comments (0) | TrackBack

November 23, 2003


Thanks to Kevin, I bagged myself a free copy of "Barman," a thinly-fictionalized account of Alex Wellen's journey from law student to fully licensed attorney.

The only catch to getting a free book was that I actually had to write about it. ("But, Kevin, what if I hate it?" "Then you hate it. Say what you think.")

So I didn't hate it. Not exactly the Second Coming of Grisham, but a cute, engaging story nonetheless.

Taking the bar exam is the ultimate drama for many attorneys-to-be. Most people find it enormously stressful, and Wellen was no exception. Almost anyone who has taken a bar exam in the last ten years will smile at the details that Wellen nails dead-on - even to the point where, when he describes the teachers of his bar-prep class, I knew which ones he meant.

I had to wonder, how in the world did he remember all this stuff if he was studying as diligently as he claimed? Did he take notes? Did he go back and take the bar exam a second time just to get it right? Or does he just have freakishly good memory for irrelevant details? Only Wellen knows. But I can tell you, the vast majority of this book is a dead ringer for reality. I suspect the only parts he really made up were the ones about his success with women. Of course, he's married now, so he may not have found a need to pad his record.

Lawyers and anyone who knows lawyers will find this book a familiar journey, more fun than taking the test, but not as intellectually challenging. After reading it, I thought that I might have quite a bit in common with the author, and I regret that I missed him when he was in my neck of the woods.

Posted by wasylik at 05:58 PM | Comments (0) | TrackBack


Yesterday Dineen and I attended (with Alex) the bat mitzvah of the daughter of one of her colleagues.

One of the major themes to this particular celebration was the passing down of tradition. We heard the stories of Abraham and his wife Sarah, and were asked to comtemplate how the decisions they made thousands of years ago had a lasting impact even today. We can see that impact as the Jewish tradition, and the Christian tradition that sprung from it. All of us are makiing decisions that may have consequences decades, centuries, or even millenia from now.

The most obivious of those is the choice to have or not have children, and the potential for decendants many years later. Another, less obvious choice is the way in which we raise the children we have. The nurture or neglect of a single child usually passes on in a cycle, so those of us who are parents have an awesome responsibility placed upon us.

I'm sure as I go through my daily life over the next few weeks I'll think of more ways in which my actions now can have a lasting impact. What about you?

Posted by wasylik at 04:59 PM | Comments (0) | TrackBack

November 19, 2003

Four More Years

Four years is a long time. It's a presidential administration. It's enough time to earn a college degree or a high school diploma (with time to spare, if you take out summer vacations). It's enough time to go to law school, take and pass TWO bar exams, and begin a legal career in earnest.

Time enough for major life changes.

Four years ago today, this weblog said "Hello, world!" Most of the links from those first few days are broken, in a testament to the impermanence of the web. This blog is 28 in dog years, but virtual millennia in Internet years. (Ha! Virtual! Get it?)

Last year I pondered some about how I've changed and I won't repeat that here, other than to note that the big event of this year - the one that blows all the others away - is that I became a dad to the most amazing little man I've ever met. I never imagined how much joy he would bring, but if you look at the pictures, you'll see it on my face and his. (And Dineen's face as well.)

Where will I be in four years? I cannot begin to say, since four years ago I never could have guessed where I would be today. (Although two years ago I made some good guesses.)

In celebration of WOIFM's four years on the web, I've created a new skin: lime. Enjoy.

Posted by wasylik at 06:36 PM | Comments (0) | TrackBack

November 14, 2003

For Krempasky

Why are lawyers like the French?

Posted by Dineen at 10:08 AM | Comments (0) | TrackBack

November 08, 2003

For Geeks

MacSlash reports that you can download MacGIMP for free this week.

Posted by wasylik at 02:01 PM | Comments (0) | TrackBack

November 04, 2003

I Voted

(Just not for this goofball.)

Did you?

Posted by wasylik at 08:33 PM | Comments (0) | TrackBack

November 03, 2003

Basic Cryptanalysis

Posted at the University of Michigan, Army Field Manual No. 34-40-2, Basic Cryptanalysis.

Posted by wasylik at 11:13 PM | Comments (0) | TrackBack

November 02, 2003

Framing the Debate

Meg points to an interview with UC Berkeley professor George Lakoff about how conservatives dominate modern political debate through skillfully defining the terms in their favor. An exceprt:

The phrase "Tax relief" began coming out of the White House starting on the very day of Bush's inauguration. It got picked up by the newspapers as if it were a neutral term, which it is not. First, you have the frame for "relief." For there to be relief, there has to be an affliction, an afflicted party, somebody who administers the relief, and an act in which you are relieved of the affliction. The reliever is the hero, and anybody who tries to stop them is the bad guy intent on keeping the affliction going. So, add "tax" to "relief" and you get a metaphor that taxation is an affliction, and anybody against relieving this affliction is a villain.
"Tax relief" has even been picked up by the Democrats. I was asked by the Democratic Caucus in their tax meetings to talk to them, and I told them about the problems of using tax relief. The candidates were on the road. Soon after, Joe Lieberman still used the phrase tax relief in a press conference. You see the Democrats shooting themselves in the foot.

Democrats and the liberal left are killing themselves in another, more sweeping way that's not at all isolated to tax relief. One thing all Democrats can agree on as part of their message: Bush is bad because he's mishandling the war, the economy, civil rights, you name it. What's the underlying frame there?

Government is bad and cannot be trusted.

Yes, they're trying to tar and feather this particualr President, and to some extent, it's taking hold. But they cannot do it without doing fundmental damage to their ultimate message, namely, that government can and should do good for its people. Because people don't just get the message that "Bush is bad." They get the message that "Government is bad." And the party that embraces - or at least pretends to embrace - the idea of reducing government interference in the lives of its citizens is the party that will ultimately benefit from that.

Posted by wasylik at 05:07 PM | Comments (0) | TrackBack

November 01, 2003


We now resume our normal stylesheets:


Posted by wasylik at 04:00 PM | Comments (0) | TrackBack

GPL Unconstituional?

It's all over the news right now that SCO has responded to IBM's Amended Counterclaims in the Great Linux Kernel Copyright Battle, and that SCO's answer includes a claim that the GPL somehow violates the U.S. Constitution.

Most lawyers - and most non-lawyers as well - are scratching their heads, wondering what possible constitutional violation they could be alleging. Since none of the news reports appeared to have been written by anyone who knew a whit about the law, and most of them merely paraphrased the claim without anything more, I decided to find the court papers and try to figure out what was up. Fortunately, GrokLaw put a copy online for public review. The actual paper is both more and less illuminating than I had hoped.

First, here's the entire claim regarding constitutionality:

EIGHTH AFFIRMATIVE DEFENSE: The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws, and IBM’s claims based thereon, or related thereto, are barred.

SCO's answer does not go into the reasons for their claim, but just makes the claim. in that respect, it is less illuminating than I had hoped. (I thought there might be a brief on the matter setting forth the claim in detail).

The significant part of the claim is the first three words: "Eighth Affirmative Defense." An affirmative defense is a claim made by a defendant, which, if true, serves as a total or partial defense to the claims made against that defendant. An important feature of an affirmative defense is that the defendant must state it in his answer to the claims, and if he fails to do so, he usually waives the defense. Rule 8(c), Federal Rules of Civil Procedure.

Because of the waiver of any affirmative defenses not raised, it is common for defendants to include everything they might possibly argue at any time during the case. That seems to be what SCO's lawyers are doing here. Even though it seems unlikely that a constitutional defense might exist, if they might argue it later, they have to raise it now. And so they have.

The constituional argument seems to be a big stretch in any event, but the fact that they lumped it in with copyright, antitrust, and export control laws seems to suggest that they might argue that the GPL violates those laws and by implication violates Congress's constittuional authority to pass those laws.

Does that sound like a reach to you? Me too. But at the outset of litigation like this, you can never tell which rabbit hole the trail will duck into, and it's best to be prepared for all.

Some other sources of information and discussion:

Look for the Comments and Trackback for others.

Posted by wasylik at 01:16 PM | Comments (0) | TrackBack


Doug Bowman has kicked the addiction he's had for the last three years. He's given up the crack Windows OS totally and now 100% back to sobriety Apple.

Reading his story reminded me of some of the reasons I first opened my mind to switching in the first place.

And another thing... someone I know who thinks she's locked into a Widnows box for work - despite losing ALL her data from time to time in the inevitable crashes - might be interested in this.

Posted by wasylik at 11:46 AM | Comments (0) | TrackBack