Among the many things we take for granted as we travel through life is that the places we travel through actually exist. Obviously, they exist physically, land, trees, road, but that they exist legally. After all, every tiny inch of dirt from sea to shining see has to be governed by someone, right?

Years ago, I awoke to find that someone had parked a backhoe on the corner of my property. When I mention something about it in a very loud voice, the explanation was that they didn’t realize it was anyone’s property.  I responded, in an even louder voice, by asking if they really thought there was free-floating land in New York that wasn’t owned by somebody, still waiting to be claimed.

There is a ribbon of highway, a part of Route 301 in Florida, consisting of a grand total of 1,260 feet, that is owned by the city of Hampton.  That 1,260 feet of highway is Hampton’s ATM, Continue reading →

The opening line of the Daily Californian editorial was shocking:

The prevalence of sexual assault on college campuses across the country has reached the point where the need for sweeping institutional reform is undeniable.

If it’s undeniable, then it must be so, and yet the evidence of it appears to be largely relegated to baseless statistical claims of vague and undefined offenses.  I’ve looked. I’ve asked.  There is empty rhetoric up the ying-yang, but no substance behind it.  And from that, it’s now so prevalent that it’s undeniable? Continue reading →

The post by Jonathan Adler at the WaPo Conspiracy did little more than point to another WaPo post.  Under other circumstances, that wouldn’t be surprising, as newspapers internally cross-promote all the time. But this was the remnants of the once vaunted Volokh Conspiracy, and while pointing at the writing of others was nothing new, this one was special:

Prosecutorial misconduct is a serious problem. Because prosecutors are largely immune from suit for their actions, some prosecutors take liberties, tolerate false testimony, suppress exculpatory evidence, and engage in selective prosecutions. Fortunately, we have writers like Radley Balko, who focus on these issues. His latest discusses the disturbing reaction of prosecutors to judges who criticize their conduct.

Did Adler just discover prosecutorial misconduct?  Did he just decide to take ownership of Balko (note the “we” in there)?  Does he think the readers of VC were oblivious to Brady violations, or oblivious to the writings of non-lawyers like Radley? Continue reading →

Not that it’s more than a bit self-interested, but the New York Times has an editorial celebrating the 50th Anniversary of the watershed decision in New York Times v. Sullivan. It’s entitled. It was a huge win, both for the Times and for the freedom of the press, which endures today:

The ruling was revolutionary, because the court for the first time rejected virtually any attempt to squelch criticism of public officials — even if false — as antithetical to “the central meaning of the First Amendment.” Today, our understanding of freedom of the press comes in large part from the Sullivan case. Its core observations and principles remain unchallenged, even as the Internet has turned everyone into a worldwide publisher — capable of calling public officials instantly to account for their actions, and also of ruining reputations with the click of a mouse.

From the mainstream media to the wackiest person with a keyboard, the right to criticize public officials endures, much to their consternation, unless done with malice.  Since the courts haven’t been particularly cooperative in silencing those who reveal, real or imagined, government excess and malfeasance, government has used its fiat to accomplish what the court won’t. Continue reading →

I may be off a bit on the timing, but it was soon after the Supreme Court held the federal Sentencing Guidelines constitutional that I argued in the Southern District of New York that the crack/powder cocaine sentencing disparity — then 100 to 1 — was arbitrary and capricious.  Back then, crack was the stuff of myths, a super powerful, incredibly addictive drug that made people go crazy and violent. Powdered coke, on the other hand, made people attractive at Studio 54.

When I first learned of crack, I had no clue what it was. I had a client explain it to me, and then run me through the way it was made.  In essence, it was the cocaine version of a red wine reduction sauce, coke mixed with a filler like baby laxative, then cooked down to a more concentrated rock, which could be smoked. The delivery method was different, but it was still just coke.

So I challenged the crack guidelines, believing they made no sense at all and were just the by-product of media hysteria surrounding the drug. Continue reading →

In a comment to my recent post about the cellphone/smartphone cases coming before the Supreme Court, Wurie and Riley, which I believe are huge and potentially paradigm shifting cases that the Supremes are ill-prepared to handle (and notably, moved the goal posts when they recast the issue presented), Pvine raised a very troubling point:

In light of recent Supreme Court decisions (see Fernandez for a very recent example), I don’t believe that the majority of the Court still adheres to the Warrant Preference Rule. As has been stated time and time again (especially in the last decade), the ultimate requirement of the 4A is reasonableness. The break hasn’t been definitively made between the Warrant Clause & the Reasonableness Clause, but I believe the Court is really close to severing those ties.

Scary as his (he could be a she) observations may be, he has a good point. Continue reading →

The irony is that those who are passionate have great difficulty in understanding why it’s not good enough because they don’t go the next step and apply critical thinking to the efficacy of raw passion.  After all, they keep hearing important people tell them that all they need to be a raving success is to be passionate. And they are. Even Apple says so:

Apple’s Your Verse ad campaign poses an odd and maybe cynical offer to us. Don’t pay attention to the call of law, business, or medicine. Be a poet. Be a creator. Contribute your verse. What are we on American Idol? Or as Monty Python put it maybe all we want to do is sing. Apple panders to the look at me right now world. The film is about free thinkers. Maybe that is the same as being a poet.

The point was made most effectively in a humor magazine article, I believe Cracked (but can’t find it, so if you know what I’m referring to, please help me out with the link. Edit: this is it, thanks to Aaron Williamson) where a person comes to the aid of someone badly injured, announcing that they are there to save the day.  The injured person asks, “so you’re a doctor?”  The good Samaritan responds, “no, but I’m deeply passionate about medicine.” Continue reading →

Jacob Gershman at the WSJ LawBlog provides the timeline for Dewey & LeBoeuf’s slide into the toilet of financial ruin, which started shortly after the 2007 merger of the two firms, Dewey Ballantine and LeBoeuf, Lamb, Greene & MacRae.  As the indictment suggests, it was doomed from the start.  That can happen. Biglaw is no more immune from the vicissitudes of finance and profitability than anyone else, as much as that may shock some young bucks who are absolutely certain that it’s where God would go for representation.

That it didn’t turn out as well as some thought isn’t a big deal. That the management of Dewey was no less arrogant about it than any two-bit swindler who thinks he’s smarter than everyone else, on the other hand, is quite an indictment.  From the New York Times:

Four men, who were charged by New York prosecutors on Thursday with orchestrating a nearly four-year scheme to manipulate the firm’s books to keep it afloat during the financial crisis, talked openly in emails about “fake income,” “accounting tricks” and their ability to fool the firm’s “clueless auditor,” the prosecutors said. Continue reading →

When Jamie Casino’s Superbowl ad went viral, everyone said it was the most awesome lawyer commercial ever. Sure, anyone with half a brain realized how awful it was, throwing criminal defendants under the bus, trading on his brother’s death for a buck, but those were the details. It was AWESOME!!!

There are any number of funny, disgusting, abhorrent, awesome things posted on Youtube everyday. What made this different was that it was by and about a lawyer, so we took notice. Lawyers aren’t usually the cool kids, and nobody pays us much attention, so this was a major shift. Everyone was watching.  Enough so that it got Casino a reality show gig.

According to Deadline, Warner Horizon Television signed Casino to create Casino’s Law. One of the producers from The Bachelor will develop the show, which doesn’t have a concept yet, but hey, that’s not important right now. Hopefully, it will feature more flaming sledgehammers. Continue reading →

Two cases whose names may well be connected to one of the most important rulings the Supreme Court will make in our lifetime are United States v. Wurie and Riley v. California.  On the surface, the issue is whether the police have the authority to conduct a nonconsensual, non-exigent, warrantless search of a cell phone upon arrest.

While the issue could be disposed of easily with a basic search incident to arrest analysis, where a cell phone  (read smart phone, for those who want to think a step ahead) was deemed just another container that happened to hold digital stuff rather than physical stuff, the ramifications are devastating.

The real issue of these two cases is set forth in Jeff Fisher’s merits brief in Riley (courtesy of Orin Kerr at WaPo Conspiracy), Continue reading →

On the bright side, when Eugene Volokh made the decision to take his big win in the 9th Circuit in Obsidian Finance v, Cox and move the court to tweak the opinion around the edges because a sentence hurt his pro bono client’s feelings, it gave rise to a number of interesting discussions about the duties and obligations of counsel.

Cox had good reason to be unhappy with a sentence in the opinion that was unflattering toward her, to say the least:

Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1.

Still, Eugene beat back a $2.5 million judgment for his client (at least for now) Continue reading →

Thomson Reuters, the venerable marketeer legal publisher, has joined hands with the International Centre for Missing and Exploited Children, and not too small a smattering of federal alphabet law enforcement agencies, to produce a report on the future safety of the digital world.  It’s called The Digital Economy: Potential, Perils and Promises, a report of the Digital Economy Task Force.

Curiously, news of the report was broken by David Lat at Above The Law, under the heading “The Dark Side of the Web.”  After all, it’s not like ATL isn’t all about serious legal issues confronting the safety of children, right?  Lat begins by offering his position:

I am on record as an optimist when it comes to the internet. The free flow of information on the web, including but not limited to websites like Above the Law, helps people make better decisions about their lives and careers (and also entertains, a value that shouldn’t be ignored). Continue reading →

While courts have taken little issue with law enforcement lying (or, in the parlance of the judiciacy, “pretext”) to the public, they assume they’re being told the truth. After all, they’re the judges, and judges are, of course, special.  It’s not like law enforcement can’t trust them, or worse still, think so poorly of their benefactors that they would treat them the way they treat the public.

But then, there was Stingray.  For those who don’t keep up with the law enforcement technology, it’s a device that mimics a cell tower and captures phone data.  A few years back, the WSJ stumbled upon it, and it turns out that the cops were having a field day with it, but for one detail.  They had neither sought nor obtained judicial approval to use it. Heck, they didn’t even tell the courts it existed. But, oh boy, did it exist.

During an appellate argument in a sexual battery case in Tallahassee, some previously unknown details came out. From Wired via Mike Masnick Tim Cushing at Techdirt: Continue reading →

It was the couple quick glances at a wristwatch that derailed the re-election campaign of George Herbert Walker Bush during a presidential debate with Bill Clinton. But for a watch, we wouldn’t have had Monica Lewinsky to talk about. How could you live with yourself?

I’m a watch nerd. That means I love watches. Wrist watches. Dash timers. Pocket watches. Not clocks, so much, but watches.  It’s not that they’re fancy, but that they’re tools reflecting the artistry of the watchmaker’s craft.  Telling time is easy. Watches can be a thing of beauty. If you can’t appreciate beauty, ingenuity and craftsmanship, then your life is empty. I’m sad for you.

In a post the other day, a tangential piece dealt with a lawyer whose watch of choice was a Patek Phillipe Calatrava.  This gave rise to no small issue, Continue reading →

When the Supreme Court considered whether to grant cert in Susan B. Anthony List v. Driehaus, the Cato Institute brief nailed the free speech issue, from the critical question of how one determines “fact” in a political context, as well as the inherent chilling effect of criminalizing speech if one guessed wrong.  It was never a question of adoring political lies, but the price to be paid for robust political speech.

Now that cert has been granted, Cato’s Ilya Shapiro has filed its amicus curiae brief on the merits, and it may be the best amicus brief ever filed.  To wet your whistle, here’s the opening:

“I am not a crook.” Continue reading →

One of my complaints about journalists is that no matter how well they write, they aren’t inherently endowed with expertise on the subject of their reporting. The same goes for lawyers, and particularly judges, who sometimes confuse the majesty of their robes for subject matter expertise.

It’s not that we can’t become reasonably well-versed in a very narrow subject with some effort, but that we should never confuse ourselves with real experts. The Supreme Court heard argument in Hall v. Florida, the follow-up case to Atkins v. Virginia which held it unconstitutional to execute a mentally retarded person.

Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Continue reading →

While most altlaw businesses try to dodge and weave around the fact that they’re committing the crime of Unauthorized Practice of Law, one not only admits the obvious, but is proud of it. Via Carolyn Elefant at My Shingle:

Tandem is structured differently from traditional law firms as well.  D.C. Ethics Rule 5.4(b)  allows for non-lawyer partners, provided that they are also firm employees (as opposed to passive investors) and provide services that “assist the organization in providing legal services.” Capitalizing on this rule, one of Tandem’s co-founders, Michael McDevitt is non-lawyer and former CEO of a successful weight-loss company while the other co-founder, Randy Price brings six years experience as a big law associate. The remaining firm members are comprised of a mix of big firm expatriates and management types, including two with deep roots in e-discovery.

As much as my view toward the ownership of law firms by non-lawyers is negative, one of the key ingredients is that it is also unlawful.  Tandem Legal Group is a law firm. It’s half-owned by a non-lawyer, who brings his experience in running a weight-loss company to the firm, and it comports with the District of Columbia’s ethical requirements. Continue reading →

The side of a NYPD police cruiser bears the letters CPR, for Courtesy, Professionalism, Respect.  It’s aspirational at best, and a cynical marketing ploy at worst. In any event, it is not something to point out when an interaction with police doesn’t go as well as one would hope.

But Mayor Bill de Blasio has decided that his new (and Giuliani’s old) police commissioner should commence a new initiative to make New York’s Finest more user-friendly. Via Newsday:

The NYPD’s encounters with the public will soon begin with a polite introduction and end “on a positive note” under a new “Seven Steps to Positive Community Interactions” curriculum announced Thursday by Mayor Bill de Blasio and Commissioner William J. Bratton. Continue reading →

Willie King took the full ride after recording the Indianapolis police arresting a guy.  From the Indiana Lawyer (via a twit by Radley Balko):

Indianapolis resident Willie King who was arrested in February, 2011 after he used his cellphone to videotape police officers arresting another man. King was charged with resisting arrest, disorderly conduct and public intoxication.

He was acquitted after a bench trial, but didn’t stop there.

Following a bench trial that found him not guilty, King filed a federal civil rights case against the city of Indianapolis and the police officers involved in the incident. The lawsuit, Willie E. King v. The City of Indianapolis, Jonathan M. Lawlis, Robert K. McCauley, Brad Alford, Michael B. Wright and David Miller, 1:11-cv-01727, was filed in U.S. District Court for the Southern District of Indiana, Indianapolis Division. Continue reading →

I twit. When Twitter first came on the scene, I was certain I wouldn’t. I was wrong. Before going any further, I call what I do on Twitter a “twit.” I’ve called it that since the beginning, because the place is called twitter. This makes some people furious, because, they tell me, it’s a “tweet.” Is it called “Tweeter”? You can call it whatever you like. I will call it what I like. Get over it.

Over the years since I first wrongly decided Twitter was worthless, I’ve written about it numerous times, as it plays a role in digital life whether I like it or not. It is a poor medium for many purposes: arguments on Twitter are terrible and a waste of time, as it’s impossible to engage in any depth of thought within the constraint of 140 characters.

Serial twitterers are annoying.  Any jerk can @me and expect me to twit with them, as if I’m obliged to engage with anyone with a computer keyboard. Continue reading →