shlep: the Self-Help Law ExPress

A couple days ago, the often-thoughtful Ted Frank, of the American Enterprise Institute, wrote a posting at Point of Law, “The Coase Theorem in action” (Nov. 28, 2006), that was all conclusion and no evidence.  Having read the New York Times article “Only the Strongest Survive” (Nov. 26, 2006), Ted asserts that NY courts are “very pro-tenant” and concludes that the situation has not made tenants better off.  After telling us that many landlords won’t build new housing (despite high rents), decry the six months it can take to evict a tenant, and reject outright any tenant who has a housing court history, Ted concludes:

“Tenants would be much better off ex ante if landlords could trust the court system to resolve disputes fairly and quickly ex post.”

  I’d like to point out that:

• “the court system” is applying laws passed by legislative bodies, based on a long history of landlord abuses (and on the inherent importance of housing to individuals and families, rich or poor), and are not being arbitrarily ”pro-tenant” or unfairly anti-landlord
• Neither the typical NYC landlord, nor Ted Frank, has (to my knowledge) supported raising taxes in order to create more judgeships and better courthouse systems and services, which would make the process work more quickly at Housing Court
• Any calculus of whether tenants are better off under the present system must take into account the many ways in which landlords have improved the treatment of their tenants and have been deterred from using their old abusive and neglectful tactics

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Self-Represented litigants often find it difficult to sift through the copious and confusing amounts of information on legal websites. As such, Montana and Iowa have launched a new feature called ‘LiveHelp’, where users can chat with a live trained operator to address their concerns or questions regarding legal information. The chat button is located in the upper right hand corner of both websites, Montana’s here and Iowa’s here. ProBono.net recently published an article about the feature.

Pro se litigants, practitioners and programs have been the subject of several recent articles of note:

• After winning his pro-marijuana Initiative battle against the city of Sun Valley, Ryan Davidson is asking the Idaho Supreme Court to reconsider their earlier denial of attorney fees.  The high court agreed with Davidson that Sun City did not have the authority to decide whether the Initiative was constitutional.  Davidson is asking for $50,000 in compensation after his two-year battle to get the Initiative on the ballot in Sun City.  He says it is discriminatory not to allow attorneys fees to pro se litigants.  According to the Idaho Mountain Express (”Pro-Marijuana Petitioner Seeks Compensation,” Nov. 29, 2006), Davidson makes the intesting policy point that: “not awarding attorney fees to pro se (non-attorney) litigants can expose them to frivolous litigation from government entities, which would not run the risk of having to pay attorney fees even if they lose a case.”
• The Salt Lake Tribune helped spread the word about the plight of pro se litigants in Utah, in an article ”More people choosing to skip lawyers: Self-representation on the rise, courts want litigants to be more informed” (Nov. 27, 2006).  The article describes the findings of a report by the Utah judiciary.  The report told of the high numbers of pro se litigants, gave demographic information, noted that most self-represented “seemed satisfied” with their court experience, and made several recommendations.  Unfortunately, the newspaper could not resist the temptation to bring out an old cliche, and began the article with the sentence: “If it is true, as the saying goes, that a person ‘who is his own lawyer has a fool for a client,’ then Utah’s courts see plenty of fools.”
• California superior courts provide Family Law Facilitators to assist persons in family matters who do not have attorneys.  The program at the Santa Maria facilities of the Santa Barbara County Superior Court recently hired experienced attorney Denise Motter as its Family Court Facilitator, and The Lompoc Record gave excellent coverage in an article on Nov. 27, 2006, highlighting Ms. Motter’s background and the many services she offers.

 There are more news blurbs under the fold.

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Under “Bill 14“, a statute passed on Oct. 19, 2006, the Law Society of Upper Canada (”LSUC”) now has a Paralegal Standing Committee in place to set policy and administer a regulatory scheme that will go into effect on May 1, 2007.  Five of the 13 members are paralegals and three others are lay members of the Society.  (Law Times, “LSUC sets up paralegal committee,” Nov. 27, 2006; LSUC News Release) According to the Ontario Attorney General, Michael Bryant:   

“The Access to Justice Act will provide for paralegal regulation in order to give consumers a choice in qualified legal services while protecting people who get legal advice from non-lawyers. For the first time in Canada’s history, paralegals will be required to receive training, carry liability insurance and report to a public body that can investigate complaints.”

A Nov. 17, 2006 press release from the Ontario AG also asserts that ”Ontario consumers looking for legal services are closer to having more choice and better protection, as the provincial government moves to solidify a new system for authorizing, empowering and regulating paralegals,” and goes on to explain (”New Era Begins with Pathbreaking Paralegal Regulation”):

“Under the act, the Law Society of Upper Canada, which regulates lawyers, will now also regulate paralegals.  If authorized by the Law Society, paralegals will continue to provide the services they are currently authorized to provide including representation in small claims court matters, traffic infractions and other provincial offences, and tribunals.”  

 The Ontario Bar is, apparently, quite pleased with its new role as regulator of legal services provided by paralegals.  (see LSUC Paralegal Information Page)  However, it’s difficult for consumer advocates who have watched the regulatory style of lawyers (and most other professions), and the Bar’s broad dislike of independent paralegals, to be universally sanguine about the regulatory scheme that is being established as a model in Ontario.    Many questions come to mind, but the most prominent are:

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Everybody handling a lawsuit needs to work within the court rules — for instance, the Federal Rules of Civil Procedure. Alas, court rules are sometimes written in a rather dense style. But there’s hope! For over a decade a group within the Civil Rules Advisory Committee has been working on a revision of the Federal Rules of Civil Procedure to make them clearer and easier to understand.

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Hello, all, my name is Orijit and this is my first post on the site. I am currently working as an Americorps VISTA volunteer with Montana Legal Services Association (MLSA) on self-help law in Montana. As the only provider of civil legal services statewide, MLSA must turn down many clients that are income-eligible for services because of resources and other constraints. Therefore, MLSA has made an effort to promote self-help law practices such as pro se clinics, self-help workstations and a comprehensive website to provide assistance to those who cannot be directly represented.

On page 11 of this month’s ‘Montana Lawyer’, you will find an article I authored which summarizes the state of pro se activities in Montana, along with a rough outline of what we hope to provide in the future. Please check back for updates on new resources and legislative activity that I hope to provide as soon as they are available.

If you don’t mind learning legal basics that have been filtered through a bit of poetic license, you might want to check out Yehuda Berlinger’s Board Games and Gaming Blog.  Yehuda occasionally presents verse versions of major statutory schemes.  So far, he’s covered:

• the U.S. Copyright Code in verse
• the U.S. Patent Code in verse
• the U.S. Trademark Code in verse 
• the U.S. Armed Forces Code in verse, Chapters 1 and 2,  Chapters 3-5, Chapters 6 - 9, Chapters 13, 15, 17, 18, 20, 21, Chapters 22, 23 & 31, and Chapter 32, 33, 33A, 35

Despite our love of haiku, shlep does not advise that you rely solely on Yehuda’s verse for your study of major statutory schemes, or parts thereof.  For example, here is his treatment of Sec. 107 of the Copyright Act:

107

Despite all of these rights
All people can reproduce
To report, criticise, or teach
Because that is fair use

While that is a reasonable summary, go here for a few extra resources on the complex topic of Fair Use and Copyright. [via Blawg Review #85, by Peter Black at Freedom to Differ, who also graciously pointed to two of our postings from last week.]

  No Santa Symbol, St. Nicholas Defense Action Committees, Netherlands

Notice:  This time each year, the Editor of this weblog suffers from HAH! [Holiday Agita & Heartburn], as well as BHS [Bah Humbug Syndrome], due to the excessive commercialization of Christmas and related holidays. See f/k/a, St. Nicholas v. Santa Claus, Dec. 12, 2005.  Nonetheless, in the true spirit of the Season, he offers this self-help advice to those caught up — intentionally or not — in the Christmas shopping frenzy and other schmoliday customs.

In the normal course of the English Language, the term Black Friday would refer to a Friday infamous for financial market disaster (viz. Sept. 24, 1869) or for other forms of social calamity.  In the United States, as you surely know, it has also come to signify the Day After Thanksgiving.  It is deemed either the “official” or “unofficial” start of the Christmas-Holiday Shopping Season, and designated “Black” to refer to the day that retailers can (hopefully) stop recording losses in red ink in their account books, and can instead start to show profits in black ink. (see CBCNews/AP, “U.S. Shoppers Hit Stores on ‘Black Friday’,” Nov. 24, 2006)

Some shoppers are up early for Black Friday, or never go to bed, envigorated by the thrill of the chase for bargains. (e.g., AZCentral.com, “In Search of a Deal,” Nov. 25, 2006) Yet, Black Friday can also be a day filled with stress and confrontation (New York Times, “Attention Holiday Shoppers: We Have Fisticuffs in Aisle 2,” Nov. 25, 2006), and begin a season of true financial disaster for millions of American consumers. 

orig.  

shlep may not be able to keep you from busting your budget, or mistaking massive gift-giving for the manifestation of love and affection, but we hope to help you avoid getting scammed or suffering other shopping and holiday pitfalls, and to help you find solutions or legal remedies, if you’re victimized by the dishonest or unscrupulous.  As the wise self-helper knows: the best way to “solve” a legal problem is to prevent it in the first place; and, prevention often means knowing your rights and/or acting with common sense.  The follow links and resources should assist you in those goals (if only by keeping you and your credit card occupied instead of shopping).

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 If your Thanksgiving was as tastey and relaxing as mine, you’ll understand why I never quite got around to posting here yesterday.  If I had, I surely would have joined in the annual obsession with things turkey.   Here, a day late, is a little gravy for your leftovers:

  1)  Turkeys Teaching Law: Does your self-help legal issue involve the Law of Contracts?  Professor Meredith R. Miller of ContractsProfBlog has opined once again this year that “nearly all contract law concepts can be learned with turkey cases (and one chicken case … and maybe one cow case).”  Prof. Miller stuck her neck out last year, and described two leading turkey cases: in “Turkeys, Oral Contracts and Mr. Gouge (Nov. 18, 2005), she serves up the decision in H&H Poultry Co. v. Whaley, 408 A.2d 289 (Del. 1979); and in “Turkeys, Damages and Alternative Obligations” (Nov. 17, 2005), she thoroughly digests Jacobsen-Reimers Co. v. Tozai Co., 42 Cal. App. 178 (Cal. App. 3d Dist. 1919).” (via Robert Ambrogi at Legal Blog Watch, in “Turkeys Teaching Law,” Nov. 22, 2006)

2) Talking Turkey: A quotation from the trial court judge in Prof. Miller’s posting on the H&H Poultry Case, is a good reminder that the judge’s role quite often is to get “a feeling for a close case, where I believe people may sincerely feel they are telling the story as it is.”  From my personal experience watching judges, lawyers, litigants and witnesses (and dealing with adolescents at home and in my office), I firmly believe that the most believable evidence (and pleading) consists in “talking turkey” — speaking plainly and to the point.  The pro se party should not, in my opinion, attempt to emulate lawyers who seem to be hiding the ball with arcane jargon, weasel words, rhetorical flourishes, or other verbal dodges meant to obscure the weaknesses in his or her client’s case and to distort the opponent’s arguments and evidence.   Speak plainly and honestly to the judge, if you want to increase your credibility.

3) Gobbledygook v. Critical Thinking:  Let’s be frank: While gathered around their holiday tables yesterdary, many Americans engaged in and/or were subjected to all sorts of specious, misleading or otherwise faulty arguments and opinion, masquerading as truth or wisdom (or even God’s Will).  You will, of course, also encounter such gobbledygook (those poor maligned male turkeys!) in the realm of legal advocacy.  A few days ago, I discovered A Practical Guide to Critical Thinking, by Gregg R. Haskins (Aug. 2006) This 18-pp. pdf. file ”presents a concise introduction to critical thinking. It is intended as a handy tool to help anyone evaluate or develop sound reasoning and arguments.”  Here’s Haskins’ definition of Critial Thinking:

 A process by which we use our knowledge and intelligence to effectively arrive at the most reasonable and justifiable positions on issues, and which endeavors to identify and overcome the numerous hindrances to rational thinking.“

To help the reader become a critical thinker, Haskins explains a five-step process, offers an Argument Checklist for evaluating arguments, and presents four Hindrance Charts, which describe the Hindrances to critical thinking due to Human Limitations, The Use of Language, Faulty Logic or Perception, and Psychological or Sociological Pitfalls.  Within each category of Hindrance, Haskins defines numerous varieties, gives examples, and suggests critical thinking tips.   Haskins not only treats well-known ploys such as Ad Hominem Attacks, Slippery Slopes, and Red Herrings, but he also gives names and examples for many more stumbling clocks to taking “reasonable and justifiable” positions and recognizing arguments that fail to achieve those goals.   In his acknowledgement, Haskins credits two books, both by skepdic.com’s Robert Todd Carroll, PhD, The Skeptic’s Dictionary (2003) and Becoming a Critical Thinker – A Guide for the New Millennium (2000).

4) Thankful for:  There are lots of important things that we should all be thankful about in our lives.   On a more modest scale, two articles that appeared online this week brought small bits of good news that could make pro se litigants grateful: a)  In his law.com column for Nov. 27, 2006, Howard Bashman explains the effects of two new Federal Rules of Appellate Practice that will go into effect on Dec. 1, 2006.  One of them is of special interest to pro se litigants:   The change to FRAP 25(a)(2)(D), a rule that addresses electronic filing on appeal.  Bashman explains a new mandatory hardship exception to any electronic filing requirements:

The amendment authorizes federal appellate courts to require that pleadings, briefs, and other papers be filed electronically, but the amendment also states that “[a] local rule may require filing by electronic means only if reasonable exceptions are allowed.” This so-called “hardship exception” is undefined, allowing the federal appellate courts that will require electronic filing on appeal to experiment with different formulations. The most obvious form of a hardship exception will apply to pro se litigants who do not have access to the technology necessary to prepare and file documents in electronic form.

[For help appearing pro se in an appellate court, see our prior post] 

 b)  The hordes of pro se litigants who appear in the Justice Courts of the State of New York, got good news this week.  Surely spurred on by the New York Times three-part series in September, describing the oft-malfunctioning system of small town and village courts (see our prior post), the NYS Chief Judge, Judith S. Kaye, announced a set of reforms that include “plans to increase training for the justices, to improve their supervision and to better monitor whether they are protecting basic legal principles like the constitutional right to a lawyer” and the requirement “for the first time to keep a word-for-word record of their proceedings, like other courts in the state.” (New York Times, “Justice Courts for Small New York Towns to be Overhauled,” Nov. 22, 2006)  Other major issues were not addressed in the proposals, because they would need legislative changes and face considerable political opposition from local politicians. “Donna Lieberman, the executive director of the New York Civil Liberties Union, said that while the reforms suggested by Judge Kaye were welcome, ‘these are Band-Aids on a system that needs serious systemic reform’.”

A Google News Alert for “pro se” brought me to June Maxam’s North Country Gazette this morning — my first stop there since questioning, in a series of postings last month, NCG’s claim that “Fair Use is not applicable” to the copyrighted material appearing at that site.  The Nov. 21st NCG’s article is about Florida Judge Cliff Barnes, who is representing himself before the State’s Judicial Qualifications Commission.  The Barnes story is interesting, and concerns public complaints he made about the conduct of other judges, local enforcement officers, and the public defender.  (Read more here and here.)  The judge seems more than capable of presenting his own case, so the story does not particularly deserve a lot of shlep attention. 

 What is worth noting, to update our readers and the record, is the current copyright notice at the end of the North Country Gazette article.   The broad claim of rights now ends with the words “This article is copyright protected” and no longer has the erroneous statement “Fair Use is not applicable.”  In addition, the Home Page Sidebar no longer contains the wrongheaded prohibition against all reproduction “in accordance with Fair Use.”  

I’m not sure when the changes were made, but the oldest piece linked to today’s front page, dated Nov. 14th, does have the corrected version.   (I checked only one article, dated Oct. 19, 2006, to see if older NCG pieces had also been amended.  That article, which was a verbatim copy of a NYS court press release, continues to say ”This article is copyright protected and Fair Use is not applicable.”)  This result – ending the incorrect Fair Use Disclaimer — was my modest goal when I first approached the publisher of NCG and raised the topic at this weblog.   I’m thankful the misleading statement about the Fair Use doctrine is gone, as it did a disservice to readers of the Gazette.  I’m also hopeful that my mentioning this good outcome won’t lead to its reversal, as happened after only one day last month.   We should applaud The North Country Gazette for changing its policy.

This information may be too late for Daniel Wallace (see our prior post).  But, shlep wants to help the nonlawyer understand antitrust law, so that decisions about suing (or seeking legal assistance) will be better-informed and, more generally, so that members of the public can better evaluate the action (or inaction) of prosecutors and private litigants.   Last week’s news that Connecticut Attorney General Richard Blumenthal has opened an investigation into ”whether the Infectious Diseases Society of America has violated antitrust laws in setting new guidelines for diagnosing and treating Lyme disease” (Hartford Courant, Nov. 17, 2006; via Antitrust Review), suggests both that antitrust will often be clumsily used as a political panacea and that even prosectors should be brushing up on antitrust basics.  

  Our task is made much easier by a project that I put together for the American Antitrust Institute [AAI] a few years ago.  It is a Guide to Antitrust Resources on the Web, that has annotated links to hundreds of online materials, searchable and presented in numerous categories, including: 

• antitrust Primers and Overviews from a variety of sources and points of view
• federal (U.S.A.) antitrust statutes and regulations – Sherman, Clayton, Robinson-Patman, and more
• U.S. enforcement agencies and guidelines
• state antitrust resources
• antitrust exemptions: Parker/State-Action, Noerr-Pennington (seeking government aciton), Baseball, Business of Insurance, and more
• International Competition Resources, including: a) Competition Links Worldwide: links to National Competition Authorities, compiled by UNCTAD; National Competition Legislation: Compiled by UNCTAD, this is a growing list of links to English versions of laws for the protection of competition in various nations, including Bulgaria, Chile, Indonesia, Israel, Jamaica, Kenya, Lithuania, Malawi, Mexico, New Zealand, Thailand, Turkey, Ukraine, Zambia, Zimbabwe; and c) materials on specific Regions and Countries 

To keep up on antitrust issues in the news, we suggest: a) The daily posting on antitrust news, scholarship and opinion by Crane, Fischer, Kaiser & Gabriel at the Antitrust Review Weblog, and by Prof. Ghosh at his AntitrustProf Blog (update: Prof. Ghosh has been joined by Prof. D. Daniel Sokol and renamed the site Antitrust & Competition Policy Blog).   b) Quarterly expert analysis on current issues from The Antitrust Source, an online publication from the American Bar Association’s Section on Antitrust.   c) Sheppard Mullin’s monthly newsletter editions at its Antitrust Law Blog.  And, d) the AAI homepage, where you can keep abreast of its many advocacy initiatives and educational projects and publications.

  For intellectual and historical background, you might want to read about The Factions of Antitrust.  There are four major schools of thought in the United States concerning the relationship between government and economic markets, resulting in four corresponding approaches to the role of antitrust and competition policy. From political “right” to “left”, they are: Libertarian, Neoclassical (”Chicago”), Post-Chicago, and Populist.  As is suggested in recent postings at the Antitrust Review weblog and Truth on the Market, the “Chicago School” has won most of the important debates in antitrust law — in academia and the courts – over the past couple of decades.

update (Nov. 25, 2006): A listing at ConsumerWorld’s Legal Resources page reminded us that Prof. Anthony D. Becker of St. Olaf College has put together the The Antitrust Case Browser, which has links to case summaries for all U.S. Supreme Court antitrust cases, arranged alphabetically, chronologically and by subject and industry.  It also has links to statutes and other antitrust resources.

update (Feb. 14, 2007): Prof. D. Daniel Sokol at the Antitrust & Competition Policy weblog has posted today on What are the Best Souces for Antitrust/Competition Policy News?

   One that Oscar Forgot (update, Feb. 26, 2007): Last night’s Academy Awards ceremony apparently overlooked a real contender in the Short-form documentary category.  Russel Mokhibor wrote a glowing review of Fair Fight in the Marketplace in the Feb. 21, 2007 edition of Corporate Crime Reporter.  Mokhibor is impressed (and surprised) that a 30-minute primer on antitrust could be so interesting and informative. The review notes that “The movie, narrated by National Public Radio’s Mara Liasson, traces the history of the antitrust laws – and keeps it interesting for young people with cartoon depictions of price fixing and television clips of kids competing.”  The English-language film will have Spanish and Mandarin subtitles (the review has an interesting explanation for the Mandarin). There’s even a special edition with commentary for high schoolers. The reviewer also gushes that:

“[T]he film actually becomes gripping educational television – am I losing my bearings here? – when it profiles the Mylan Labs, ADM and Microsoft cases.” 

Perhaps the film, which is the brainchild of Bert Foer, president of the American Antitrust Institute, will be eligible for an Oscar next year, as it will have its broadcast premiere on PBS in April.   You can see it online at any time here.

The Boston Globe unbundling article we discussed earlier today included an On the Net link worth checking out and keeping in mind — it’s for a Pro Se Statistics Memorandum found at the National Center for State Courts website.  Put together by Madelynn Herman for the NSCS Knowledge and Information Services group, the September 2006 Memo lists reports from around the nation on the numbers of self-represented litigants in the studied jurisdictions (selected state trial and appellate courts, as well as federal courts).  The listed studies are annotated with a “snapshot of statistics”.  The numbers are eye-openers.

 Ms. Herman notes:

Courts are continuing to see an increase in the numbers of litigants who represent themselves. Self-represented litigants are most likely to appear without counsel in domestic-relations matters, such as divorce, custody and child support, small claims, landlord/tenant, probate, protective orders, and other civil matters. While national statistics on the numbers of self-represented litigants are not available, several states and many jurisdictions keep track of the numbers of self-represented litigants in their courts.

Here are a few notable items for the self-help law community:

• We need many more mass-media articles like the one in the Sunday Boston Globe, on unbundling advances in New Hampshire and Vermont. See “New rules let N.H. lawyers handle part of a case,” Nov. 19, 2006.  Such press coverage helps the public learn about the discrete-task lawyering option, and lets lawyers know that other lawyers are doing it and gaining more business.
• Thanks to Jen Burke at the weblog Transcending Gender for linking to our posting on Living-Together & Pre-Marital Agreements as part of Blawg Review #84.  Her posting for BR #84 contains a lot of links to resources on transgender law, rights, legislation and policy (which greatly expand on our Nov. 7th post about gender and name changes), as well as a moving section on the Annual Day of Remembrance for those who have lost their lives due to gender-based hatred and violence, Nov. 20th.”
• Michael Jefferson, “a New Haven criminal defense lawyer, former radio talk show host and civil rights activist,” is the focus of the article “‘Whites must take lead against racism’,” in today’s New Haven Register(Nov. 20, 2006).  As an example of institutional racism that he has experienced in courthouses, the article states: “Jefferson recalled sitting outside a judge’s chambers in federal court waiting for his case to be called, when a clerk walked up and said ‘you must be pro se,’ assuming he was representing himself. Again, not believing he could be an attorney.”  This editor has also seen racism in courthouses (usually the result of the ignorance or prejudice of an individual, rather than the system) and concurs it must indeed be eliminated.  However, I would like to believe that Mr. Jefferson was mistakenly considered to be there in a pro se capacity because he looked more prepared, engaged and focused on justice than many of his professional colleagues.
• Last week, at MyShingle, Carolyn Elefant discussed an article in the Harvard Law Bulletin for Fall 2006, called “The Coming Wave.”  The article focused on the growing number of law students — and Baby Boomer alumni from the 1970s — who are turning to public interest/service jobs, and the programs at Harvard that are helping in that process.  One such program, the focus of Carolyn’s piece, helps young lawyers and law students learn the nuts and bolts of starting a solo law practice (especially those aimed at underprivileged or vulnerable communities).   Such programs and law practices can be an important part in the profession’s efforts to help assure justice for all.  As the NLADA news letter recently pointed out, state Access to Justice commissions have much to gain from expanding on partnerships with law schools, and creating new ones. 
• The Equal Justice Works and Newsweek.com E-GUIDE TO PUBLIC SERVICE AT AMERICA’S LAW SCHOOLS  (see the EJW Press Release, Aug. 14, 2006) is an excellent source of free online resources for anyone (from judges, court administrators, and law firms to prospective law students) seeking a broad range of information about public interest programs and curricula at law schools.  Naturally, shlep hopes that such programs increasingly help the growth of self-help law resources and the spread of unbundled lawyering services. 

Frankly, I’ve known quite a few antitrust lawyers who don’t fully understand antitrust law — especially its treatment of concepts such as injury, conspiracy, price-fixing and predatory pricing. It’s no surprise at all, then, that yet another court has rejected pro se plaintiff Daniel Wallace’s faulty antitrust allegations against the GNU free operating system and the General Public License (GPL) for its copyrighted software. (see Wallace v. IBM, et al, 7th Circuit, No. 06-2454, issued Nov. 9, 2006; Enterprise Open Source Magazine, “Wallace Loses Appeal - GPL is Legal,” Nov. 18, 2006; Antitrust Review weblog, Nov. 9, 2006)

In his district court loss against the Free Software Foundation in March of this year, Wallace was allowed to amend his complaint four times, in the hope that he might come up with an allegation that (if proven) amounted to an antitrust violation. He failed and Judge John Daniel Tinder correctly dismissed the suit and ordered Wallace to pay FSF’s costs.

Wallace wanted to compete against the Linux system but complained that he could not, because the General Public License allowed the software to be distributed for free. Judge Tinder pointed out that injury to Wallace was not the same as injury to the marketplace and consumers:

“[T]he GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers. These benefits include lower prices, better access and more innovation.”

Last week, writing for a unanimous three-judge panel of the federal 7th Circuit appellate court, the often-acerbic Judge Frank H. Easterbrook confirmed the dismissal of Wallace’s claims. Easterbrook took Wallace’s misinterpretations of antitrust law apart issue by issue. The 6-page opinion ends with the sentence: “The GPL and open-source software have nothing to fear from the antitrust laws.”

In May 2005, the Groklaw weblog speculated that Wallace might himself be part of a conspiracy — acting as a stand-in for companies that would like to see Linux and GPL fail. That seems a bit farfetched to me, however, because such companies surely would have made sure that Wallace got competent antitrust advice (and maybe ghostwriting assistance) when drafting his complaints. For me, the case is a reminder that — despite what many members of the general public and the legal profession appear to believe — weaving fanciful theories of liability by ignoring the special definitions that words and concepts are given in a particular body of law, is not good lawyering and not good advocacy. When a pro se litigant does it, he or she deserves to be politely told to get it together or get lost.