Hacking, Coughing Monday Link Sausages

It's Monday. Ignore the calendar; that's what it's like after a three-day weekend on the first "business day." As you can imagine, it's even worse after the US Thanksgiving holiday... but at least then I'm not suffering from my annual pollen/allergy attack.

• The world doesn't always write left-to-right in Roman characters. And neither would aliens/fantasy creatures and cultures/etc.... but e-book publishers want to skip past the Betamax-v.-VHS wars (or, more recently, HD-DVD v. BluRay) and establish a standard format for e-books. What they're missing, though, is this: VHS — the "technically inferior" format — won primarily because it was cheaper and easier for end-users to record (8hr v. 5hr limits, among other things) and time-shift. That is precisely what Sony (the proprietor of Betamax) proclaimed was the non-infringing purpose of VCRs in the notorious Betamax case... but it lost the format war. It's unclear to me whether Bluray or HD-DVD is "technically inferior," but transcoding non-NTSC formats to BluRay is reportedly easier than for HD-DVD — again, the "loser" appears to have been the one that championed end-user usage but made it less flexible. (Sony "won" this war.)
• Soviet-era Russian poet Andrei Vozhnesensky has died. Vozhnesensky was perhaps best known to Americans — if at all — for championing translations of Eastern European works (poetry and prose) into English in the 1970s and 1980s as a way to open up communication. His allegiance to an almost Germanic individualismus approach caused him some trouble with the Soviet authorities — perhaps not quite as much as Boris Pasternak or Natalia Gorbanevskaia, but it couldn't have been entirely comfortable.
• It's the first day of the business week in June, so the Supreme Court of the US must have been busy this morning — and it was, issuing five opinions in argued cases and two sets of orders. Most of the opinions are fairly technical and/or "routine"/"lawyerly" matters; the only one with real public awareness was the 5–4 decision in Berghuis v. Thompkins, No. .08–1470 (01 Jun 2010), holding that just being silent does not count as an invocation of Miranda rights: Instead, an individual detained for questioning has to say the magic words "I invoke my Miranda rights" or "I want a lawyer". On the one hand, this is a pretty clear bright-line test that will be easy to administer in practice (if, that is, nobody fails to make a record of the suspect requesting his/her rights...); on the other hand, it assumes an English-speaking, American-raised suspect, because that's not what is required in those civil-law countries that have an equivalent right. In other words, this ruling denigrates the rights of precisely those who are most likely to need the protection of Miranda. Interestingly, the only former prosecutor currently on the Court (Justice Sotomayór) dissented...

  One of those lawyerly matters, though, could well have much more profound implications than just another technical barrier to invoking Miranda (it's not like Berghuis is the first — or even most significant — one!). The Court found in a unanimous decision that the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., does not bar U.S. courts from hearing cases filed not against foreign states, but against former officials of foreign states, for human rights violations. Samantar v. Yousuf, No. .08–1555 (01 Jun 2010). It's more a crack in the courthouse door than a wide welcoming of suits, though; as Justice Stevens notes,

  Even if a suit is not governed by the Act, it may still be barred by foreign sovereign immunity under the common law. And not every suit can successfully be pleaded against an individual official alone. Even when a plaintiff names only a foreign official, it may be the case that the foreign state itself, its political subdivision, or an agency or instrumentality is a required party, because that party has “an interest relating to the subject of the action” and “disposing of the action in the person’s absence may … as a practical matter impair or impede the person’s ability to protect the interest." If this is the case, and the entity is immune from suit under the FSIA, the district court may have to dismiss the suit, regardless of whether the official is immune or not under the common law. Or it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest.

  Slip op. at 18–19 (citations and footnotes omitted). This is entirely consistent with — indeed, logically (almost) compelled by — the distinction in US law between the official and the state... that results in captions like Berghuis v. Thompkins, as Thompkins was the warden in a habeas proceeding (and not the state agency/instrumentality).

  Yes, lawyers do indeed enjoy their technicalities...

• From the department of weird potential alternate history triggers, consider this piece arguing that changing the US railroad gauge to the 4'9" standard took the states out of regulating economic development... and, one might infer, led to the loss by the CSA a few years later...
• On an even more amusing note, consider being asked to take your pants off at a football match... because your pants are inconsistent with a trademark holder's advertising rights. This was ridiculous when it occurred, and it's even more ridiculous now, given South Africa's relatively recent accession to the WTO regime. In the end, it's merely a bizarre corollary of trademark's "must defend" meme, perhaps even more than it is a consequence of "overbreadth."