22 January 2011

Schadenfreude Pie

No link sausages today. Instead, I'm serving up slices of schadenfreude pie.

I'll start out with the settlement of a malicious prosecution lawsuit... against the law firm, to the tune of $25 million. This pleases me on both a general and a personal level. On the general level, it's pleasant because a frivolous lawsuit got slapped down... and it was the major corporate/pseudocharitable "foundation" that filed that lawsuit. Not all frivolous lawsuits are filed by solo-practitioner ambulance-chasers seeking a big payday for a member of the Great Unwashed from a well-insured corporate defendant! And, as a bonus, it was a strike against a frivolous celebrity claim. More personally (but still generally), the law firm in question has long made the mistake of thinking that its transactional skill translates well to litigation, and has too frequently (in my limited experience with the firm) done a poor job of looking at context before filing its pleadings and motions. Admittedly, some of this perspective is a result of past direct experience; some, however, is more objective, in that I reached that conclusion in examining lawsuits in which I was not involved. The darkest, bitterest, tastiest forkful of pie, though, results from the particular MPP partner involved, as my unsatisfactory dealings with him in the past demonstrated some confusion between what law and custom actually are, on the one hand, and what they would be if his client(s)' interests were/are determinative. It's not an uncommon problem with litigators; I'll nibble this slice of pie with that in mind.

Next up, the UK Prime Minister's communications director resigned under pressure from a wiretapping scandal that occurred when he was the editor at News of the World. No, not the US's supermarket-checkout-line "companion" to the National Enquirer — the NewsCorp tabloid in the UK, and long among the worst of them. (Trying to determine which UK tabloid is "worst" at any one moment is like choosing the form of one's own execution: No matter which one seems least inhumane, the result is that one is dead.) My schadenfreude for this one extends to both the Conservative Party — which objected vociferously during last year's election to increased post-9/11 surveillance activity by the Labour government as being inconsistent with civil rights — and to NewsCorp for getting caught trying to simultaneously be "media" and "spy agency" (again).

But I'm not taking Scalzi's advice: I'm going for a third slice of pie. During an oral argument earlier this week in the Supreme Court, it rapidly became apparent that AT&T's position that data it discloses to regulators is inherently not subject to Freedom of Information Act requests due to the corporation's personal privacy at best grossly overstates the issue... and more probably reflects a "right" that corporations — unlike "natural persons" — either do not have at all or have in only an extremely limited sense (such as retaining privacy control over such data that also implicates a "natural person"'s privacy interests). My schadenfreude here springs from three aspects. First, of course, it was AT&T — one of the biggest supporters of and cooperators with increased warrantless wiretapping after 9/11; privacy for me, and not for thee, eh? Second, this distinction undercuts much of Justice Kennedy's reasoning in Citizens United (the case that essentially allows unlimited corporate financing in elections, continuing the Court's indefensible "money is speech" meme from Buckley v. Valeo). Our Constitution — particularly through the Thirteenth, Fourteenth, and Fifteenth Amendments — does not allow "second-class citizens." However, the logical extension of rejecting a personal privacy right for corporations (and it's not a very significant reach) is that Frankenstein's monster — the corporation — does not have every right and privilege and immunity accorded "natural persons," which in turn calls into question the assumed conclusion in Justice Kennedy's Citizens United opinion... and the application of the Thirteenth, Fourteenth, and Fifteenth Amendments to corporations. (And the less said about an overly literal treatment of the Thirteenth Amendment's prohibition on ownership of persons, the better. Or maybe not.) Third, it was amusing to see an advocate forced to partially retract a position taken in his brief because it was, in the end, counterfactual.

Just desserts all around, served with cardamom-laced Turkish coffee.