When Does One Become a Criminal by Obeying the Law?

Henry David Thoreau presented several radical ideas in his mid-nineteenth century writing “Civil Disobedience”. The work, published under the title “Resistance to Civil Government” puts forth several profound assertions and questions concerning the law, man and the government. One key subject that Thoreau focused on was whether just men should continue to support the government by complacency with no regard to moral reason? Should laws that are unjust be adhered to, or should they be viewed as moot? His ideas seem like common sense to me, yet his clear and practical ideas would be considered a capital offense in some oppressive nations. I believe that Henry David Thoreau’s ideas are sound in theory. Society has been conditioned to accept ever-increasing taxation without contest except for superficial discourse—how far can we, as a society, be pushed, pulled, punched and sucked while remaining complacent? At what point does one become a co-conspirator of oppression by passive acceptance?

Thoreau gave three general responses one may choose from when faced with the question of whether or not to follow unjust laws. He asks if we should blindly follow all that the government asks of us without question, should voice contempt for the law yet still remain within its bounds, or “Shall we transgress them at once” (Thoreau, 144). I believe it is always within the rights of the individual to subvert authority on the matter of adherence to unjust laws. While I do not share Thoreau’s contempt for those who passively oppose, I find that once the scope of injustices instilled by a government as law becomes brutal, all-encompassing, and deaf to reason and redress, by following the law, one becomes a criminal of the higher laws of morality, reason, and nature.

Thoreau holds contempt for those who voice concern for unjust laws yet comply with them. Thoreau reasons that these people view law violators as hurting their cause resulting in their motivation for adherence (Thoreau, 144). When the severity of the injustice merely extends to the fringes of our freedoms and prosperity, I find that it is the fear of repercussions for breaking the law that causes compliance with moderates.

Unjust laws with far-reaching encroachments should be actively challenged. I share a source of inspiration that Thoreau experienced—spending the night in jail. Few things can so rapidly and thoroughly change one’s pace and train of thought. Also sharing in this experience and views concerning laws against reason and parity is Dr. Martin Luther King. In his renowned writing “Letter from a Birmingham Jail,” Dr. King elaborates on the philosophy of compliance to unjust laws. King holds that freedoms are never voluntarily surrendered by the ruling and will only come by insistence. Relating to the horrors that oppressed African-Americans suffered, King proclaims, “There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair” (King). Dr. King lends support to Thoreau’s frustration with the resenting conformer; the practice seems to clearly strike a nerve in both men. On this matter King says,

“I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Councilor or the Ku Klux Klanner, but the white moderate, who is more devoted to ‘order’ than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: ‘I agree with you in the goal you seek, but I cannot agree with your methods of direct action’; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a ‘more convenient season.’ Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will”. (King)

It has been incorporated into American law for the ability of the people to invalidate unjust laws through the process of jury nullification. This philosophy is deep-rooted in American policy and by its practice has done more to arrest the development of tyranny than any other American policy. The United States Supreme Court’s first Chief Justice said, “The Jury has a right to judge both the law as well as the fact in controversy” (Jay). The power of the people to void unjust laws is suppressed by the government in its struggle for control.

In the infamous case, U.S. v Dougherty, 473 F.2d 1113, 1139 (1972), the United States Court of Appeals for the District of Columbia Circuit upheld the district court’s ruling forbidding the mentioning to the jury that “moral compulsion” or “choice of the lesser evil” “constituted a legal defense” (US v. Dougherty). In Vin Suprynowicz’s “The Undisputed Power of the Jury to Acquit” he quotes AP writer David Kravets who says that under a 1998 California “snitch” policy “judges routinely order jurors to inform the court if a juror is not applying the law during deliberations” (Suprynowicz). Jurors found by the court not to be basing their opinions on the literal interpretation of the law are often replaced by alternates. If this policy becomes suppressed to a level that completely prevents jury nullification then the final barrier to stop unjust laws with ordered legal procedure is lost. The less one has to lose, the less one has to fear. And when one is stepped on, to the point of breaking, along the way, most will come to point where compliance’s benefits yield less than resistance’s.

Once the law becomes brutal and barbaric in its policy or enforcement, enforcers, and those who live within its bounds, become criminals in the eyes of God, moral reason, natural law, and international treaty. “The Justice Trial”, United States of America v. Alstötter et al, one of “The Nuremberg Trials”, highlights this point in the prosecution of judges who issued orders of murderous oppressions in compliance with directives of law issued by Adolph Hitler. The majority of the Nazi judges were found guilty at this trial including Franz Schlegelberger who provided lengthy rationalizations at his trial for his continued service as a Nazi judge even after it became apparent to him the abhorrent reality of Nazi law. Despite Schlegelberger’s somewhat rational pleas, the Military Tribunal found that by deciding his rulings in accordance to Nazi law, despite his preference against Nazi atrocities against humanity, these favorable rulings for the Nazi party in prior court rulings lent credence and support to the resulting depravity that lead the torture and deaths of political dissidents. Consequently, Schlegelberger was found guilty of war crimes and crimes against humanity (Nuremberg).

Henry David Thoreau chose to separate himself from the state. He reasoned that it was improper for him to wait for change and to patiently pay homage to unjust laws. He found breaking the most unjust laws were necessary endeavors, resulting in his refusing to comply with the law forbidding assisting fugitive slaves and in his refusal to pay a mandatory tax used to support what he viewed as an unjust war against Mexico. When an unjust law’s effects lead to tyranny and wanton treatment of human rights, it is the duty of just people to actively resist all efforts of such tyranny. The more atrocious a regime, the less compliance it takes for one to become criminal by adhering to the law of such a regime.

© 2005 – David Oppenheimer –Performance Impressions

Works Cited

Jay, John. Jury Rights. 1789. Fully Informed Jury Association of South Carolina. 6 Nov. 2005
Jury Rights – PatriotNetwork.info

King Jr., Dr. Martin Luther. Letter from a Birmingham Jail. 16 Apr. 1963. University of Pennslyvania. 6 Nov. 2005 www.africa.upen.edu

The Nuremberg Trials: The Justice Trial. Ed. Doug
Linder. 1948. University of Missouri-Kansas City
School of Law. 6 Nov. 2005

Suprynowicz, Vin. The Undisputed Power of the Jury to Acquit. 2002. Loompanics. 6 Nov. 2005

[http://www.law.umkc.edu/faculty/projects/ftrials/Nuremberg/Alstoetter.htm#U.S.A.%20v.%20ALSTOETTER%20ET%20AL%20
(The%20Justice%20Cases):]Suprynowicz,http://www.loompanics.com

Thoreau, Henry David. “Civil Disobedience” Resistance to Civil Government . 1849. A World of Ideas. Ed. Lee A. Jacobus. Boston:Bedford/St. Martins, 2006.

United States v. Dougherty. 1972. Maxwell School of
Syracuse University. 6 Nov. 2005.
U.S. v. Dougherty

Supporting Education Through Mid-Day Meals

Many children in India (belonging to low-income families) find themselves thrown into the real-world battles quite early in life. In a country where Right to Education is a law, as many as 126,66,377 children work in various sectors only to earn their meal for the day. Yet, a change has been brewing steadily where children today are opting education over work.

Every Child Must be Educated

Earlier, many families considered a child to be an additional resource to fetch income to feed the family and to feed the children. This has considerably changed over the years. Thanks to the initiatives and schemes by the Government of India, many children are now encouraged to attend school. Additionally, when the children started to benefit from mid-day meal schemes in schools, they started bringing along their siblings which solved the problem of most parents.

The Changes over the Years

The 1998 National Census of India estimated the total number of children workers, aged 4-15, to be at 12.6 million, out of a total child population of 253 million in 5-14 age group. The 2011 National Census of India found the total number of working children, aged 5-14, to be at 4.35 million, and the total child population to be 259.64 million in that age group. So yes, the numbers have declined but the problem of putting children to school remains to be solved.

A National Policy on Child Labour was formulated in 1987 and ever since, the government has tried to ensure children attend school. One of the more remarkable steps of the government has been the enactment of ‘The Right of Children to Free and Compulsory Education Act’ or Right to Education Act also known as RTE. It was enacted on August 4 2009, which describes the modalities of the importance of free and compulsory education for children between 6 and 14 in India under Article 21A of the Indian Constitution. In addition, the government set off to accelerate the various policies about children’s education in its existing system.

One such step was the launching of Mid-Day Meal Scheme in 2004. This scheme has seen several reforms over the years with a view to include all of government schools in the system. The primary objective of Mid-Day Meal Programme is to feed one wholesome meal to children in order to encourage them to come to school. The government has tied up with non-governmental organisations in order to implement MDMS efficiently in schools to reach out to as many children as possible.

Benefits of Mid-Day Meal Programme

Children are now encouraged to attend school and this has so far proved to be a win-win for parents belonging to economically weaker sections. The parents are now realising that they can feed the children by relying on school lunch programmes. The Mid Day Meal Scheme has benefitted the children in more ways than one. Properly-fed children feel more motivated to work hard on their academics, experience an overall physical and mental growth and understand the importance of having ambitions for future.

The impact on the lives of the children has been tremendous ever since the organisations has implemented its Mid-Day Meal Programme. There are stories of hope where children have been benefitted for real in the mission of Food for Education. You can be part of this amazing cause of encouraging children to attend school. Sponsor a child today!

Law & Technology

The legal battle over the sex.com case may be over, but it seems that there is no end to the hanky-panky when it comes to online domain names.

In Kremen v. Cohen, the 9th U.S. Circuit Court of Appeals recently rejected the latest appeal by pornography king Stephen Michael Cohen of a $65 million award to sex.com’s original registrant, Gary Kremen. Kremen alleged that Cohen misappropriated that domain name.

Kremen has settled his conversion claim — alleging that the domain name was improperly transferred to Cohen — with the one immediately available deep pocket, Network Solutions Inc.

Herndon, Va.-based NSI was the registrar of the sex.com domain. It allegedly allowed the domain name to be transferred to Cohen without Kremen’s consent. The confidential settlement reportedly was for somewhere around $15 million.

In the course of this decade long legal adventure, Kremen helped blazed new trails in the field of registrar liability and domain name law.

The sex.com case began in 1994, before the explosion of the Internet as a medium for selling goods, services and pornography. When Kremen first registered sex.com, only one company, NSI, was registering names, and it was giving them away for free.

Kremen and the courts have been forced to grapple with the thorny question of whether a domain name is capable of being converted — a legal theory normally requiring that some tangible property be misappropriated to another person without consent. The legal confusion was compounded by the fact that there was no enforceable contract between Kremen and NSI since Kremen had paid no consideration for the domain.

But the method by which control of the domain was wrested away from Kremen was quite old-fashioned. It was accomplished by simple forgery and fraud.

Cohen sent a letter to NSI purporting to have come from Kremen’s company, disclaiming any interest in sex.com — which Kremen had let sit idle — and asking Cohen to so inform NSI. The letter purportedly was signed by Kremen’s then-housemate, though the court subsequently noted her signature was misspelled.

NSI did nothing to verify the authenticity of the letter and, accepting the letter at face value, transferred the registration of sex.com to Cohen. He then built a multimillion-dollar porn empire around the domain, much to the chagrin of Kremen, who by then recognized the tremendous value of a generic, second-level domain name such as “sex” in the dot-com world.

Millions of dollars and several court battles later, Kremen succeeded in procuring the return of the sex.com domain registration. To boot, he obtained a $40 million compensatory and a $25 million punitive damages award from the U.S. District Court in San Francisco against Cohen, who apparently took all his assets and fled the United States to an undisclosed location where even bounty hunters hired by Kremen cannot find him.

Important issues remain

Whether Kremen ever collects this judgment, and whether the case is finally over, important legal issues remain.

In 2003, in Kremen v. Cohen, the 9th Circuit reversed the trial court and held that an Internet domain name is property subject to being improperly taken or converted by another. The ruling allowed tort claims to be brought when a domain name is wrongfully transferred even though no enforceable contract exists or when contract remedies may be too limited. Still, the issue remains open.

The 9th Circuit based its ruling on its self-described “grudging reading” of California law as to whether a domain name fell within an exception allowing intangible property not merged into some document — like a stock certificate — to be the subject of a conversion claim. The question of whether something is property subject to conversion is not a federal legal question, but one of state law.

The federal appellate court in this case had offered the opportunity to clarify California law, by means of certified question, to the California Supreme Court. But that high court demurred. When forced to make the determination of California law itself, the 9th Circuit interpreted California case law from the late 1800s to permit such a claim despite the argument that the domain name was no more than a routing protocol and thus not tangible property.

The 9th Circuit held that the domain name system was in fact a document or collection of documents stored in electronic form. The court found that the domain name is similar to a stock certificate, which is associated with the intangible property, and that the intangible value of a domain name is associated with the domain name system records. Such records associate word-based domain names with particular computers networked on the Internet.

But the 9th Circuit went further. It noted that if it were necessary for it to do so, it would hold all property, tangible or intangible, as being capable of conversion — and would reject the approach set forth in “Restatement (Second) of the Law of Torts” permitting conversion only where there is a merger of intangible property in some document.

However, because this decision is based on a federal court’s interpretation of one state’s law, it does not set strong precedent for other courts applying the property laws of different states. In fact, other federal decisions, most notably from the Eastern District of Virginia where NSI was based, hold to the contrary. It remains to be seen where the other circuits or states will come down on this debate.

Dilemma remains

The Kremen victory and the eventual settlement by NSI have not deterred continued shenanigans or carelessness with domain names, as was recently experienced by one of New York’s oldest commercial Internet service providers, Panix.com.

In mid-January of this year, ownership of the Panix.com domain name was moved to Australia, the company’s domain name server records were moved to the United Kingdom, and the company’s e-mail was redirected to a company in Canada, all without Panix.com’s knowledge or consent.

The fiasco resulted in Panix.com’s customers, many of whom are in New York City, Long Island and New Jersey, being deprived of Internet and e-mail access for a few days, and in the potential compromise of customers’ private e-mail and passwords.

Two well-known domain registrars were involved in the Panix.com incident, but proper verification of the transfer request was not obtained. The receiving registrar in Australia, responsible for obtaining the validation, had delegated the responsibility to its reseller, which failed to obtain the validation.

In its investigation of the Panix.com incident, the Internet Corporation for Assigned Names and Numbers (ICANN, a private, nonprofit corporation that currently governs the domain name system), expressed concern that the recipient registrar had delegated the verification to a third-party reseller. But a proposed rule that would have required the recipient registrar to have sole responsibility for verification of the transfer request was rejected when ICANN recently adopted new procedures to regulate transfers of domain names from one registrar to another.

Panix.com was able to regain its domain name rather quickly. It took a determined Kremen a number of years and a lot of legal fees to do so. Others may not fare as well. Owners of domain names must exercise vigilance and diligence. The courts will have to continue to address the inevitable claims and disputes.

We will see where other courts wind up in determining whether a domain name is property and how they will deal with the continuing, thorny legal issues in this area.

Jose I. Rojas is a partner at the Rojas Law Firm in Miami. He is a past chair of The Florida Bar’s computer law committee and is a member of the International Trademark Association’s Internet Committee.

Breathing New Life Into A Law Firm’s Aging Receivables

When it comes to managing their receivables, many firms tend to regard this as an aspect of financial management. It is, after all, about money; you can touch and feel the dollars.

However, receivables management is just as much a function of practice management. It is not just about numbers. Behind most receivables more than 90 days past due is a story about why the account has not been paid – cash flow problems, complicated transactions, and many more. Understand those stories, get to the bottom of them – and you will have a better understanding of how to get paid.

Firms find themselves facing a dilemma. On one hand, they truly want to embrace institutional thinking and run as a business, putting structures and procedures in place and holding people accountable. On the other, they are reluctant to hold the individual attorneys accountable and deprive them of their autonomy because of the different circumstances that may exist that impact payment from clients.The two attitudes create an uneasy balance. It is hard to have clear-cut procedures while poking holes in them with plenty of exceptions.The truth, though, is that your firm must. Everything is not black and white.You need to make it clear to your attorneys and staff – as well as your clients! – what your policies and your expectations are.Yet, there needs to be a fair amount of latitude for decisions based on individual client relationships.

It will be important to layer your firmwide efforts, to take into account both formal collection procedures and practices and the informal, individual efforts that exist in practice to service clients. Mid-year is an appropriate time to focus on these issues, before getting into the mad rush of year-end.

To ensure that your receivables are not enjoying a ripe old age, take these steps:

1. Step back and start dissecting the older, harder-to-collect backlog of receivables. It may be necessary to dig deep to understand just how old they are. Many firms do not differentiate between receivables that are 90 days past due and those that are much older. Understand the dates on the aging report to discover how old the receivables really are. Look to see if there is any recent billing activity on the account, when the last payment was received and for how much. It is surprising to us how firms continue to do work for clients without considering whether they are paying their bills.

2. When managing the backlog of receivables, look first at your oldest receivables and work your way back to those that are newer. It may seem harder, but it will be productive to spend time first with the oldest receivables, moving forward to determine their collectibility.

3. Ask all attorneys to review their clients with outstanding balances. Tell them up front that you are looking for the truth from them.The point is for them to take decisive action: make the collection themselves, get help from the firm’s accounts receivable management team or clear the books. The attorneys are in the best position to assess whether a receivable should be kept on the active list or written off. However, they are often reluctant to follow through with the write-off process.

Evaluate each account and determine the likelihood of payment if the firm invests more time and effort to collect. Don’t kid yourself about the reality of collecting an account. When a receivable exceeds 180 days past due, there is only a 50% chance that it will be collected, and the likelihood drops off dramatically after that point.There may be a logical reason why it has not been paid. Perhaps the client does not have the ability to pay. Maybe the attorney has worked out an arrangement with the client whereby he can pay after the matter has been completed. Make sure the responsible attorney communicates to the firm what arrangements have been made with each client.

4. Urge firm leadership to be decisive and step in to take action. Management must work through receivable issues and not just accept attorney statements like: “I’m working on it” or “I’m in contact with my client about this.” For firms that are mid-size or larger, if you don’t yet have a committee, give serious thought to forming one. If yours is a smaller firm, this responsibility will rest squarely with firm leadership. Collections typically can’t be handled adequately by one person. Get your arms around the problem by creating – and empowering – a committee.

5. Evaluate the firm’s overall collection efforts. Ask yourselves: Did we do the job right, or did our processes and procedures allow receivables to age far longer than they should have? Review the firm’s policies and procedures concerning receivables that go beyond 90 days. Determine if policies exist only on paper. Implementation is the key. Do you have the right people in place to move the ball forward, and are they empowered to do so? Many firms review their older receivables with the goal of determining why accounts have not paid and if they have collection problems.When doing this, they frequently learn they have long had problems, but did not detect them earlier in the aging process.

6. Make the most of your dedicated collections staff, those whose job is to focus exclusively on receivables. Evaluate the ability of your staff to help in accounts receivable management. Ensure they have the skills and talents that can help attorneys reduce the backlog of receivables. Also, measure the staff ‘s performance to ensure progress is being made and sufficient time is being devoted to working directly with accounts receivable, as opposed to other administrative duties.At the same time, recognize when attorney involvement is essential.

7. Make the decision to write off the account after all efforts have been exhausted. Admittedly, that is far easier said than done. Nevertheless, if efforts have been made to collect that do not bear fruit, accept the fact that there is little chance of getting paid and write it off. If the attorney continues to hold up the write-off process, firm leadership needs to step in and get the account written off.

8. Consider enlisting the services of experts in managing law firm receivables, like Client Connection, to help you tackle difficult receivables In many cases, the more time you take to deal with your receivables, the more they age, and the harder it becomes to collect. Not only can consultants deal with problem situations, but they can help give collection efforts the focus they require, as well as recommendations for preventing these problems from happening again.