Meet Jane Roe

I may be a month late to this party, but at first I dismissed it as an insignificant piece of bizarro non-news, the opposite of a human interest story. More of a human freakshow.

A single mother of six, undergoes in vitro and has octuplets. The public reaction ran the gamut, the full spectrum of human emotions.

At least the range between outrage and disgust.

In the wake of this story there have been editorials, investigations, calls to regulate the fertility industry, and now death threats. The criticism seems to be universal - left and right; religious and secular; feminist and chauvinist.

Then a thought occurred to me - why is any of this our business? If, as the left claims, that the abortion debate is really about "choice," then shouldn't we celebrate this woman's choices? Isn't this the ultimate expression of Roe? If there were calls to regulate abortions clinics en masse following a single doc's display of poor ethical judgment, wouldn't NARAL be up in arms? "Get your laws off my body!" and all that?

This woman exercised her choice, and is being villified for it. The hypocrisy is stunning.

How to have a college football playoff system in four easy steps

The infrequent blawgger returns to post about college football? Yeah - it's my blog. Deal.

As it currently stands, and I am intentionally oversimplifying here, the college football championship is currently decided by consensus. The BCS is a system that is supposed to pit the two best teams against each other in a single championship game. Using a complex formula that takes the average of two human polls and six computer rankings, the BCS puts their top two teams on the field against each other.

Except when it doesn't work. In 2003, USC was ranked number one in the AP poll, which doesn't participate in the BCS system. This is not insignificant – the AP poll is historically the most significant football poll, and before the BCS was the most influential poll in the game; to end the season ranked atop the AP poll meant a championship. It is still the poll that rules the roost in the regular season; if the AP and coaches polls split on the number one spot, most media (at least the ones who don't have a stake in the BCS system) use the AP poll as the definitive rank.

When the bowl season came around, USC remained atop the AP poll but was number three in the BCS – meaning that Southern Cal was shut out of the national championship game. USC handled Michigan in the Rose Bowl, a 10-2 team and ranked number four in all polls and who had beaten five ranked teams, to remain number one in the AP poll. However, because USC was not invited to the BCS national championship game the BCS title went to LSU, who beat Oklahoma in the Sugar Bowl.

While this season will not produce a split championship, the system again showed its flaws. The so-called power conferences produced six one-loss teams. Utah finished an undefeated season out of the supposedly second-tier Mountain West Conference.

I intentionally used words like "so-called" and "supposedly" to demostrate that a lot of the BCS still depends on perception. The perception was that this year the Pac-10 was soft; therefore 11-1 USC got shut out of the national champisonship again. The perception was that Utah's 12-0 regular season should be discounted, because the Mountain West isn't at the same caliber as the SEC or the Big 12. Perception has its place – consider the alchemy that NCAA basketball tournament selection committee must do to determine which schools make the cut, and whether to seed a particular team as a two or a three.

Perception shouldn't be the overriding factor, however. The overriding factor should be how good the team plays on the field. This year, both USC and Utah played very well, Penn State and Alabama respectively (both 11-1 teams from "power" conferences). Determining a championship should depend solely on the play on the field.

In other words, we need a playoff.

How to have a college football playoff in four easy steps: The current system has survived because of parties that are deeply committed to the status quo: the conferences, the media, the bowl committees, the sponsors. Creating a playoff would require taking on (and taking down) these purveyors of stasis. Here's how to do it.

Step One: Form a Committee. That's it, that's all. Just call yourself the National Championship Committee and incorporate. What many people don't unsderstand about the bowl system is that the bowl games have no official connection to the rest of the college sports establishment. The NCAA doesn't actually award the championship in its highest profile sport. Instead, the completely private and utterly secretive bowl committees do it.

Step Two: Get $300 Million. Okay, that step may not be so easy, but the current system throws money around like a sailor on liberty. The BCS pays the five power conferences $18.5 million per year, and the five "lesser" conferences $9.5 million a year. That's $140 million to the conferences alone. To get the conferences into a playoff system, you're simply going to have to outbid the existing system. Sure, the SEC may love to talk about history and tradition on the football field, but when push comes to shove it's about the Benjamins.

Step Three: Spend the Money. Dangle $20 million in front of all eleven conferences. The conferences lacking an automatic bid to the BCS will jump at the substantial increase in their money. The other conferences, which do very well under the current system, will not see an additional $1.5 million as much of an inducement, and the BCS could easily match it for the power conferences, who hold a good number of the cards.

So move out to the second tier – the BCS currently pays any conference that places multiple schools in the BCS an additional $4.5 million per team. This year, the SEC, Big 12, and Big 10 all placed two teams. Under a sixteen team playoff system, with automatic bids to the eleven conference champs, five at-large spots are available. Here is where the Playoff Committee can separate itself – pony up $10 million per additional school. Since four conference champs this year finished out of the BCS top 16 – Virginia Tech (ACC), Troy (Sun Belt), East Carolina (C-USA), and Buffalo (MAC) – that leaves space for the five highest ranked non-champs: Texas (Big 12), Alabama (SEC), Texas Tech (Big 12), Ohio State (Big 10), and Texas Christian (Mountain West). Under my proposal, the SEC, Big 10 and Mountain West would get $30 million each, the Big 12 $40 million.

This is big money and would greatly encourage the conferences to maintain high quality from top to bottom. It would also undo the inherent unfairness in the current situation – the Big East, for example, has an automatic bid into the BCS, even though they haven't had a BCS quality squad since Miami left to join the ACC.

Step Four: Seed the Teams and Watch the Game Become Relevant Again. This is the fun part, what all this talk is all about. It's the reason the basketball tourney is so enjoyable for the fans. Lots of games, all meaningful. Do you think people would tune in to watch #1 Oklahoma take on #16 Troy? Well, do people watch the 1-vs-16 games in March? Damn right we do! Take a look at what some potential first round matchups would have been this year:

• #3 Texas vs. #14 Virginia Tech
• #7 TCU vs. #10 Ohio St.
  
• #8 Penn St. vs. #9 Boise St.
• #4 Alabama vs. #13 Cinncinnatti

Those would have been some really good games, particularly when you consider just how badly some of the so-called power schools folded in the bowls. Win or go home, then do it again. That's how champions do it.

Why law school sucks, part I

Imagine you are a medical student. What if you were allowed to ignore an entire system of the body in order to study something cool and very difficult to get into, like plastic surgery? You wouldn't be much of a doctor - even plastic surgeons need to know about the digestive system.

Imagine now that you are a law student. Your first year was prescribed to you with required courses - civil procedure, contracts, torts, criminal, constitutional, and property. After that, you are on your own to decide what you will study. Your schedule permits you to choose between family law and international human rights.

Not only would likely choose the latter, law schools more or less encourage you to do so - despite that fact that the most common legal matters people face are probably in family court. That's right - you don't actually have to study an entire field of law, even though it impacts arguably the greatest number of people. I ask you - would you be much of a lawyer?

It would seem that this is a problem - but the law schools don't think so. In fact, most law schools would probably encourage their students to choose human rights over family law. I do not have statistics readily available, but I suspect that most law schools only offer a single course on family law.

How can the legal education system possibly justify this? Failing to require study in family law, even though everyone is virtually impacted by this seems completely untenable. So why do they do it?

To hold out the false hope of the mega payday. And it is a false hope - Biglaw represents a very small slice of the hires for newly graduated lawyers, yet the law schools do their damndest to push the students toward the mega firms, because it pushes up their median starting salaries, which is one of the metrics that potential students consider. Biglaw doesn't do family - supposed bottom feeders do.

This is kind of rambly and incoherent, but I think this is the beginning of a bigger idea. Stay tuned.

Worst. CLE. Ever.

I am at a CLE, Internet Law Update.

This is the worst waste of time I have ever had the displeasure of sitting through. The speaker on Web 2.0 and the law clearly did not use or understand Web 2.0 technology. In fact, he only spoke about Second Life, which he admitted he doesn't get. The legal issues in discussion are also a couple of years behind the times.

Memo to PBI: let me teach it next year. I know and understand internet life and culture, I actually use a whole host of internet technologies, and I am much more up to date about these issues than any of these speakers. Really. I promise not to speak about things like sweepstakes and contests, or talk about internet gambling, even thought internet gambling was effectively barred by Congress in 2006. I won't get dragged down into a long talk about copyright, because the coming issues will all revolve around Creative Commons.

I even look good in a suit. Seriously.

Does this mean we can have real forks again?

Hat tip to the brilliant (no exaggeration) John Wesley Hall for this. He writes in his Fourth Amendment blog that Homeland Security is considering requiring all airline passengers to wear an electronic ID bracelet with a - wait for it - built in taser. Sarcastic post title aside, this has me seriously ticked off.

This might reveal my September 10 way of thinking, but why should I trust an airline employee with the power to incapacitate an entire flight? Wouldn't this only force the "terrorists" - whoever they may be - to pose as a members of a flight crew? We already put up with airline security measures that range from the sensible (like scanning electronics) to the completely ridiculous (like taking off our shoes). Now, they expect to wear little ID bracelets with the power to injure us?

I try not to get political in this space, but there are clearly legal ramifications about this. It is almost inevitable that these bracelets will malfunction at some point - who will be liable for that? The airline? DHS? The manufacturer? What kind of training will these people have? And how can we trust that these things will only be used to deal with real security issues, and not on some drunk guy who wants an another Tom Collins?

And there are some real constitutional issues here as well. Take it out of the air travel context - could the government force its citizens to wear a portable taser generally? Of course not - so why is air travel that much different? Because it is seems to be the only answer.

This is a slightly ranty post, but I am angry.

Some thoughts on marriage, and the nature of rights

I had a thought earlier, and it was on the nature of rights- the right to act automatically includes the right not to act. In certain contexts, it is easy to conceptualize: the right to free speech includes the right not to speak; the right to privacy includes the right to be open (ever more relevant in this age of internet oversharing).

And then I thought about the right to marry. Same-sex marriage advocates argue (convincingly, in my estimation) that marriage is first and foremost a legal status that conveys rights and responsibilities upon the parties to the marriage. In a very real property law context, only married spouses can own property as tenants by the entirety, a status that allows the couple to own property as if they were a single (as in unitary) person.

If marriage is a fundamental right, as SCOTUS held in Loving v. Virginia, then it stands to reason that there is also a fundamental right not to marry, just as the freedom of speech carries with it the freedom not to speak. Couple who, for whatever reason, choose to remain unmarried are being discriminated against by the restricting entireties property to married couples only.

This distinction is ultimately just as arbitrary and artificical as the anti-miscegenation law at issue in Loving (and the laws barring same-sex marriage now at issue everywhere). Some committed but intentionally and happily unmarried couples will try to buy a home and demand the same benefits as married couples. I can think of no reason why they should not receive them.

Everything I hate about schools all wrapped into one.

I hate the stupid decisions made by [EDIT: corrected typos] school administrators, but this is egregious- to teach the kids of El Camino High in Oceanside, California that driving drunk has consequences, the school had police interrupt 20 classes and announce that 26 classmates had been killed in a massive DUI car wreck. The kids, understandably, became very upset, some becoming inconsolable.

Then they learned it was all a hoax, and the kids became, understandably, furious.

The school actually WANTED to make the kids upset. "They were traumatised, but we wanted them to be traumatised," guidance counsellor Lori Tauber reportedly said. "That's how they get the message."

No, Ms. Tauber, the lesson the kids got was that you (and the people of your ilk) lying sacks of shit. That teachers and cops will lie when it suits them. That their feelings do not matter. That teachers are petty and cruel.

To get the message across, the school basically (and admittedly) intentionally inflicted sever emotional distress on its students. I say sue the bastards, and make them think twice before doing it again.

You know...

Probably the biggest case ever on the limits of Presidential power comes down this week, and the blawgosphere is agog about what might have been on Judge Kozinski's personal web site.

Better minds than mine are writing about the former, and the latter isn't worth writing about.

So there.

Don't we have better things to do?

More outrage, which seems to be all I have these days. Osama bin Laden is still at large; the economy is in a handbasket on its way to hell; our energy "policy" is to consume as much as possible; and the Air Force haphazardly mishandles the US nuclear arsenal, by flying warheads across the country in an unguarded C-5.

Your government is hard at work protecting you, my fellow Americans. Max Hardcore has been convicted.

For those who don't know, Max Hardcore is nom de pr0n of Paul Little, and his work is generally upsetting to me. His videos are generally male-dominant, and strike me as angry to outright misogynistic. Not my cup of tea, but legal.

Apparently, it is not Justice's cup of tea either. Even though Max Hardcore never actually set foot in Florida (professionally, at least), DoJ chose to prosecute him there because the servers for his website were located in Florida, and because he sold some of his videos were sold there via the mail.

Or perhaps because no jury in Southern California would ever possibly convict him?

As a lawyer, I think the jurisdiction is weak at best. As society becomes increasingly decentralized, territorial jurisdiction becomes simultaneously more important and more susceptible of abuse. By choosing to indict in Tampa, the government did nothing more than forum shop for a favorable jury pool. This is as old as American justice itself, both criminal and civil.

However, by prosecuting a businessman (because that is what Max Hardcore is, a businessman) because some of his were sold via a server farm PHYSICALLY located in a district that he didn't choose, although legal in the jurisdiction where the actual production occurs shows an immense disregard for the people of California. To put it another way, the "crime" occurs wherever the government thinks they can convict someone. Tampa is well known in legal circles for being antagonistic to sexually oriented businesses. So they found a way to get the case down there.

On the other hand, the internet is also undermining the single greatest justification for territorial jurisdiction. Territorial jurisdiction gives the affronted people a chance to pass judgment on the offender. But theoretically, the whole world could be affronted by material transmitted via the 'nets. It makes little sense for a small, prudish sliver of the American people (and remember, this was a Federal case, prosecuted on behalf of every American)
be able to pass judgment on someone. Max Hardcore is a felon now, in California and New York, as much as in Florida, simply because he made a legal product in which all the participants consented, but which is not everybody's taste.

Like I said, not my cup of tea- but not a crime either.

Anger and outrage

Legal Times reports on a terrible example of how far insurance companies will go to screw plaintiffs (registration required). A hotel employee molested a young girl when her family vacationed in the US Virgin Islands. Police are notified, investigation ensues, other victims are discovered, and hotel employee gets convicted and sentenced to five years in prison.

Family sues, and based on the above it sounds like an open and shut, slam dunk, show me the money, ginormous settlement.

The insurance company assumes an aggressive posture, deposing the family, their business associates, and (because they are UK citizens) their immigration records. Family eventually gets tired of the BS, and goes to court to force an end to the abusive discovery practice. The trial court, and the 4th Circuit agree that the defense has been "harassing" the plaintiffs through discovery.

So the insurance company turns everything over to the Feds, who begin to investigate the family for money laundering and immigration violations.

The Feds eventually drop everything, but not until the family ponied up $400k to defend the criminal and/or immigration matters. The original case "settled," but the defendants never paid the money, prompting additional intervention by the court, resulting in yet another appeal, and further delay. The family has filed a second suit alleging malicious prosecution by aggressive discovery and turning materials over to prosecutors, and unlike the original suit this one is no slam dunk. I'd go so far as to say it is a long shot.

I am a criminal defense attorney, and people ask me all the time how I am able to sleep. For the record, I sleep just fine, on my right side, with my Beloved's arm wrapped around me. After reading this article, though, I have to wonder how these people - insurance defense attorneys whose only goal is to save a faceless company some money - can sleep.

So I'm a little late to this party....

The California same-sex marriage decision is fascinating on a number of fronts, but the one that stands out the most for me is that the Court held that it didn't matter whether you call it marriage, domestic partnership, or civil union, as long as the name applies to all persons across the board. The Court gave the Legislature permission to get out of the business of marriage altogether; the Legislature could abolish the legal status called "marriage" and replace it with a system called "domestic partnership" for all persons, leaving "marriage" to religious institutions alone.

In this sense, it is similar to the French marriage laws - - religious marriages are not legally recognized, as the couple must also have a civil ceremony to make the marriage legal. Furthermore, this case arose within the background of California's domestic partnership law, which (legislatively) bestowed upon same-sex couples all the rights and responsibilities of marriage, a la civil unions. What mattered for the Court was calling the system for same-sex couples by a different name was inherently discriminatory - - in other words, the term "marriage" itself bestows a legitimacy upon the relationship that the term "domestic partnership" does not.

Words really matter, after all.

Whether any state follows this is hard to say. California treats sexual orientation as a suspect classification for the purposes of its state equal protection clause. I would imagine that most other states do not treat sexual orientation the same way - - that suspect class status was the key here. If other states do not treat sexual orientation the same way, then the argument that the terms matter fall apart. It wouldn't work here in Pennsylvania, for example, where us LGBTs are routinely discriminated against.

I am still waiting for some state to step up and find that their marriage laws violate the Federal constitution, which would guaran-damn-tee that SCOTUS gets involved. I just hope it happens after President Obama gets to replace Scalia and Thomas.

News & Updates

I have registered my own domain - www.attorneycharlesthomas.com - with the hopes of getting a real practice up and running in the foreseeable future. In the meantime, I am trying to figure out how sync up all my services over there.

Some people never learn...

Remember the DC administrative law judge who claimed $54 million in damages over a missing pair of pants? He's at it again, although this time he is only after $1 million and his job back.

Inside the mind of a juror

Trial attorneys often wonder what goes on inside the jury room. Here's a very detailed look thanks to a juror in the Uma Thurman stalking case who also happens to be a reporter for the Wall Street Journal.

How did this slip through?

Not being a patent attorney, I don't pay much attention to patent law. There are occasionally stupid patent decisions that get my ire up, but by and and large the ins and outs of patent procedure, but apparently two-thirds of the patent judges were unconstitutionally appointed. DoJ hasn't even denied it, and constitutional lawyers are all in agreement that it's not even close.

This could REALLY muck things up for the patent bar, which (unsurprisingly) didn't notice the error because patent attorneys are generally not accustomed to thinking about things constitutionally. Imagine all the patent hearings and appeals that must be redone, that are invalidated, all those millions once again at stake.

The dark side of DNA

The Times has an excellent article on "surreptitious sampling," the police practice of collecting DNA samples from suspects without their knowledge (and without a warrant). In a typical case, the cops follow a suspect who may happen to be smoking a cigarette or drinking a soda. The cigarette butt or soda can collects trace amounts of saliva, which contains the suspect's DNA. The suspect throws the butt on the ground (with his DNA on it), the cops pick it up, and then they have a sample.

Prosecutors love the practice, defense attorneys hate it. I don't know how I feel, to be honest. The ordinary rule is that if a person throws something away, they lose any expectation of privacy they may have in the item- no probable cause. The ordinary rule, however, was for objects. In these cases, what the cops want is the traces of DNA left on the object, something that the suspects may not have even realized they were leaving behind. I honestly don't know what to make of this right now, but I am damn intrigued.

A return to blawgging

I haven't been posting lately. By lately, I mean in the past 10 months. I am not really at liberty to discuss it, but I had to focus on other things. My situation is stabilizing, and I really miss writing about the law. So I am back.

This is patently offensive

The Supreme Court of Washington has affirmed a murder conviction that was based in large part by DNA evidence obtained through absolutely appalling trickery, even by cop standards. Trying to close a cold case, the police concocted a ruse to obtain the DNA- they sent the suspect a letter from a fictitious law firm, claiming that he was a class member in a (phony) class action. Naturally, he signed a few documents and licked an envelope.

They got the DNA off the envelope.

This is an outrage! The cops subverted the legal process, claiming to be his attorneys! This is an instance in which bad facts made bad law. The guy was a rapist and murderer, so why let "technicalities" like the Constitution stand in the way.

I have been uninspired recently

I tried to hard to overreach with this blog. I think I wrote some interesting things at times, but I also went for weeks without anything to say.

When you cast too wide a net, you will come up empty.

Yet, I don't particularly want to reel in my focus. I am a law geek, first and foremost. I love the law, including matters outside my immediate practice.

Which is why Scott v. Harris is so fascinating. It is a summary judgment case on the issue of whether a police officer has qualified immunity when using force to stop a high speed chase. The rule at summary judgment is to accept the non-moving party's version of events as true, and then decide if there any issue of fact worthy to reach a jury.

Here, the plaintiff alleged that he was moving slowly and carefully, and that force was unnecessary. The defendant argued that the plaintiff was, essentially, a bat out of hell. Had the Court followed the usual rule, and summary judgment denied. Instead, the Court did something truly unique- they found their own facts, based on a video of the chase, then made the video part of the public record in the case, including it as part of the opinion (92Mb RealPlayer file).

Because of the video, the Court found that qualified immunity existed, 8 to 1. This is a first- the Court is usually deferential to the formalities of the law. Here, the formalities were just thrown out the window. Good- formalities run the risk of becoming meaningless lawyer's tricks when used to thwart the obvious (and just) outcome.

Open Source- Who is the "designer" for product liability purposes?

Engadget reported yesterday that the c,mm,n (pronounced "common") was unveiled at a Dutch auto show. c,mm,n is the world's first open source car, and the technology and plans are available for hacking and tweaking. Another open source car in the offing (but nowhere near a rolling prototype) is OScar. This is a day that I have been waiting for, when open source churns out major consumer products in meatspace. Given the recent financial and crappiness quality control issues that have plagued the auto industry, open source development promises to reduce R&D costs dramatically.

A legal issue exists, however, over defective design liability. Defective design is a products liability claim that exposes the designer of a product (as well as in addition to separate claims against the manufacturer and the seller NOTE: edited for clarity) to strict liability for injuries that result from the design flaw. An obvious example would be an iron that burns the house down because it doesn't shut off automatically- the designer should have foreseen that somebody somewhere would forget to turn the iron off.

So suppose that GM jumps on the c,mm,n bandwagon and produces it using the plans for version 1.0, and several years later a number of accidents reveal a design flaw that cause the vehicle to explode in rear-end collisions when both the left turn signal and license plate frame lamp are activated. So who is liable as the designer?

The open source development model has proven to be outstanding for developing software. However, since software generally doesn't kill people (at least not yet), these issues have yet to be resolved. I can see courts resolving the issue one of three ways:

1) Adoptive design. This is a kind of due diligence argument- if the General wants to slap their name on the car, then they should have made sure the plans work. This is a fairly common sense resolution- since the car is open, GM is the designer of the car if they have the opportunity to alter the design but do not do so. Clearly, if they had modified the design there would be no question as to liability; but by building the car as is, they have endorsed the design and adopted it as their own.

This is the best solution, as it encourages manufacturers to do their homework before releasing the product, and it allocates the risk to the party best able to bear it- i.e. the party who will actually profit from the design.

2) All designers are liable. This would be the worst possible solution, in my estimation, but there will be pressure coming from proprietary industries to persuade courts to embrace this approach. Imagine the onslaught of amicus briefs from Microsoft, Apple, and the patent bar arguing that "fundamental fairness" requires open source designers to be subject to the same liabilities that they are. Couple it with the lobbying and PR advantages that these industries enjoy, and I can picture the endless commercials on CNN or the Sunday morning talking head shows touting this line.

If a court were to adopt this line, and each designer were potentially on the hook, the litigation would be virtually endless. Before we even get to the ultimate issue of liability, there will be years of collateral litigation- is this kind of suit covered under a designer's homeowner's insurance? How does a court allocate the damages? If the defective component was 99% designed by one person, but 1000 other people contributes the remaining 1%, would all designers be jointly and severally liable equally or only liable for their actual contribution? If the community is jointly and severally liable, then the designers fight amongst each other in a separate trial over what their respective contribution should vis a vis each other, which would itself require a trial on who designed what. I could go on, but I am still only in my pajamas, and thus my brain is only running at 80%.

If courts adopt this rule, it would really sound the death knell of the open source movement, which is what proprietary industries really want anyway.

3) No design defect liability. A court could simply hold that an open source product is not subject to design defect liability. This option has the benefit of simplicity, but it seems unfair to plaintiffs. Design defect and manufacturer defect claims are different tort theories, not two different ways to go after somebody's pocketbook. Theoretically, a defectively designed car could be perfectly manufactured- thus no manufacturer's liability. The plaintiff's remedy is to go after the designer.

If open source products are immune from design defect, then the driver of a perfectly built but defectively designed Chevy has a remedy available to him/her that the driver of a perfectly built but defectively designed c,mm,n lacks. A market solution exists for the driver- if the driver can't bear the risk that she might not be able to recover on a design claim for the c,mm,n, then she can buy the Chevy. But what of injuries to third parties? A passenger in the defective car would be just as injured by the explosion, but would not have an opportunity to account for the risk through market action. Should that person only hitch rides from drivers of proprietary cars? What of the other vehicle in the accident?

This rule would also encourage the manufacturers of open source products NOT to perform due diligence, because taking the time to ensure that the car is well designed puts them at risk if they miss something. Obviously, we want safe products on the market, and any rule that encourages blindness to safety ought to be avoided.

I think my first option, adoptive design, works best for all concerned. It is fair to plaintiffs and defendants; it encourages manufacturers to check the work of the community; and it guarantees that open source development will continue and expand into real world consumer products. I also think I stumbled blindly and half asleepedly into a law review article. I will keep thinking about this and maybe develop it.