Monthly Archives: April 2009

Paying Attention to Commercials

When I needed to book a flight to Dallas for the Summer National Fencing Championships, I used Expedia.com.  Today, I decided to check on the flights and found that they were substantially less expensive than what I booked, so I called up my dear friends at Expedia to ask about my refund.

No refund.  I was told that their policy was to price match 24 hours after booking.  After that, tough nuggies.  But I thought, I told the nice CSR, that they had some sort of price guarantee if the price went down.  Nope, I was informed.  That was some other website, not theirs. 

He was right.  I was wrong.  Nuts.  I knew I saw a commercial about it, and I could have sworn it was Expedia.

I used the wrong website. Had I used Orbitz, then I would have gotten a refund.  But not Expedia.  I asked my good buddy, the CSR, why Expedia wouldn’t do what the other guys did.  I can’t be sure, but I think he shrugged over the phone.  He had no answer, and it really wasn’t his job to have an answer.  He just explained the policies that somebody upstairs told him about, and he did a fine job of it.  I like him, but I still wasn’t happy that I was paying $350 more for the flight for 2 than I would have had I booked today.

It’s entirely my fault.  I used Expedia.  That won’t happen again.  I told my CSR friend as much.  I believe he rolled his eyes over the phone, but I can’t be sure.  Why would anybody use Expedia when the price are the same at Orbitz, and they will refund the difference when the price goes down?  And why would anybody make the same mistake twice?

And by the way, for all my friends in the Great Republic of Texas, I will be coming.  Please divert the attention of the police long enough that I can get away clean.

The Risk of Existing in Cyberspace

There have been numerous efforts, stories, suggestions and concerns posed over the past week alone about the preservation of reputation online.  Dan Solove wrote The Future of Reputation, a chilling book about it.  Teens who did the stupidest thing ever live with the consequences.  The CCR Symposium involved it.  A cyber-stalked lawyer is writing federal legislation to protect herself from it. Carolyn Elefant wrote about what to do about it.  And I received yet another request to delete a post that undermined a lawyer’s “carefully crafted online persona.”

To say that this is a matter of concern is an understatement.

As Dan Solove cautioned, we are not in control of our image on the internet.  Even if each of us is careful to a fault about what we post, what we reveal, the battles we pick, how we behave, we are not in control of what others post about us on the internet.  Over time, the chances are good that anyone with any connection to life online will find someone who disagrees with them, thinks ill of them, even posts misinformation about them.  There will be negative, unpleasant things to be found on the internet.

This should be distinguished from posting hard threats of harm, or malicious lies, which takes us into a different realm of concern.  As was contended in the CCR Symposium, the veil of anonymity disinhibits otherwise normal people from doing some very venal things online.  Of course, the likelihood that it will translate into real world action is small, as the veil is then lifted and the conduct subject to the same proscriptions are all other venal conduct. 

One pervasive question is where the line is drawn between acceptable and unacceptable comment.  This gets very difficult, since each of us has a line of our own and believes that our line is correct and others are absurdly wrong.  Our ideas of propriety differ, as does our sense of humor,  Some of us are tougher than others, and some are very sensitive.  Some are easily offended and others have thick skins.  Many have worked hard to craft a marketing image about themselves, and can’t stand anything that might impair their financial gain.

When Carolyn wrote about dealing with online negatives, I questioned her advice.  Not so much because it was per se wrong, or not methodologically viable, but because is assumed that negatives were unfair or wrong, and that there was a presumption that every lawyer should know how to shed their online personas of negative comments.  This struck me as equally problematic, since there are many lawyers who post things that are wrong, improper, questionable and sometimes even unethical, in their quest for self-promotion.  Should they be immune from challenge because they are lawyers obsessed with marketing themselves?  They think so.

If we put our ideas out there in cyberspace, regardless of reason, we need to accept the fact that not everyone will think as highly of our thoughts as we do.  We invite criticism, and some of it may be harsher than we would like.  We are not entitled to a pleasant internet.  We are not entitled to be like, respected and admired.  We take our chances.  Nobody forced us to jump in, and when we do, we need to be tough enough to take the heat.

While many promote the idea that the blawgosphere, for example, presents a grand opportunity to present a desirable persona to the world, they neglect to mention that there is a downside to exposure.  When the criticism comes, cyberdenizens get upset.  Some characterize this as attacks, which is one of the grave failings of Citron’s CCR claims.  There are true attacks, but this isn’t them.  This is the belief that people get to post what they want without threat of negative peer review.  The internet is not a free ride.

Given the extent of my thoughts that appear in the posts on Simple Justice and elsewhere, I believe that I can speak with some authority on this subject.  I’ve been criticized many times by people who disagree with what I’ve said, both here and elsewhere.  I’ve received threatening emails and comments.  I’ve been called names, sometimes by jerks and sometimes by law professors.  I’ve seen my work stolen by unwanted mercenaries and friends who didn’t think I would mind.  I’ve had my very own nutjob cyber-stalker.  And none of it has thrown me off my game.

When I decided to start posting my writings here, I understood that it was out there in a world over which I have no control.  I put it out there.  I’ve got no cause to complain.  If someone throws a punch at me that I believe to be unwarranted, I punch back. 

No one did any of this to me because of my race, sex, age, skin color, national origin or religion.  And since I provide virtually unfettered access to my background, they are all on display for anyone who cares to find.  I didn’t find it fun to be harassed or attacked, but I never lost sleep because of it.  No anonymous attacker ever showed up at my door with an ax.  Every morning, I sit back down at my computer and write whatever pops into my head, as if yesterday’s unpleasantness never happened.  In a very real sense, it never did. 

Many argue that my views trivialize “the very real harm” that others suffer.  Perhaps they do, as I have no doubt that some have had a knock on their door by some ax-wielding psychopath.  But we can’t craft out world around that most oddball fears coming to fruition, not to mention we already have legal mechanisms in place to deal with ax murderers.

Short of that, it’s all words and letters and ideas, floating in the mist.  So what?  If you want a guarantee that no one will ever disagree with you, dislike you, say mean things about you, this isn’t the place to be.  There is no guarantee.  And contrary to those who promote a Utopian view of a “safe haven” online, where one can enjoy all the positives and benefits without fear of negatives, I cannot agree.  The price of having a public place to air our ideas is disagreement. 

I have never been a fan of anonymous posting, though I understand why some prefer it and that good reasons exist to protect those who would suffer real life retaliation for it.  Bennett calls nasty anonymous commenter’s the car-k eyers of the internet.  They are easily ignored, if you chose to do so.  If you chose to take them to heart, then you empower them to hurt your feelings.  I posted a question on a website recently and received some idiotic and nasty replies.  I didn’t cower in the corner, feelings hurt and afraid of the attacks.  I clicked on the little “x” in the corner and they magically disappeared.  What happened after that is of absolutely no consequence to me.  Don’t tell me it isn’t that simple. It is exactly that simple.

Note that this does not extend to real life attacks and harms that begin online but manifest in reality.  Note that this does not apply to children, who act without thought of consequences.  Note that this does not apply to people who are engrafted into the cyberworld without their knowledge, consent or involvement. 

But for the rest of us, as competent adults who are fully capable of real
izing that we have made a decision to be part of the cyberworld, blawgosphere, whatever, for fun or profit, there will be no assurance that everyone who comes across us will love and admire us.  We can and will invite critics to take their best shot at us.  If this upsets you to the point that you demand criminalization, the end of anonymity, legislation and compensation, then you have no business being here. 

Frank Pasquale asked:


Is cyberspace a “wild west“? Should “anything go” online? Are statements and behavior sharply distinguishable? Are the former “only words” that change the world through the unforced force of persuasion, and the latter the kind of action we rightfully fear and regulate?

We could do far worse, if we let each interest group impose its will and delicate sensibilities on the rest of us, no matter how highly they think of their own value judgments.  When the desperados rode into town to make trouble, the townspeople formed a posse to go after them.  It wasn’t easy, and it had some risks.  But we survived.

Maybe the day will come when a guy with an ax appears at my door and changes my view of thing, but for now, I’ll keeping writing whatever I please and anyone else in the blawgosphere (or anywhere else in cyberspace) can write what they please, even if it is something nasty and false about me.  Just remember, I punch back.

The Wake of a Wake

Long time readers (do I have any of those?) will recall this post about a bunch of kids in Bushwick, Brooklyn, going to the wake of a friend.


Wearing white t-shirts with a picture of the deceased teen and the letters RIP on them, a group went to pay respect.  On the way, the cops swooped down on them.  They were hauled away to the 83 Precinct, searched and held.  It’s not entirely clear why, except “unlawful assembly” was mentioned.  The kids didn’t know what that was (a separate indictment of the NYC school system).

Bob Herbert wondered why things like this only seem to happen to black kids in Bushwick. I explained that it was because nice white suburban parents would never allow this to happen to our kids.


This is a big mountain to climb, and those of us who live in the cushy, protected and (dare I say it) white neighborhoods pretend not to see it or, more likely, just ignore it because it isn’t our fight.  It’s not our kids being hassled.  They better not do that to our kids.  If they do…Well, they’re gonna have to deal with me!  But they’re not our kids.  They are the children of the powerless, the uneducated, the poor.  And they have no champion to protect them.

In the two years that elapsed, there was one guy who decided that he could be bothered with a bunch of black kids from Bushwick, and as first reported by Eric Turkewitz at New York Personal Injury law, a settlement has been reached for 16 of the youths.


According to Michael Scolnick, a civil rights attorney that represented 16 settling plaintiffs, an agreement was reached recently in federal court to dispose of those cases. The settlements ranged from $9,000 to $20,000. Scolnick said:


The settlement was on two levels: the 6 boys and girls (under 16 years of age) who either were not charged or were given desk appearance tickets and later dismissed without appearing, but were in custody from two to six hours, cuffed to a pipe or a Snapple machine, each settled for $9,000. The older ones who had formal charges issued against them for unlawful assembly and disorderly conduct settled for $20K.

Whether these are the right numbers for the frivolous, baseless, obviously racist arrests of black kids on their way to a wake, I can’t say.  Frankly, it seems to be a little light if we want to make the city think twice before allowing its cops to engage in mass arrests to show how that they are more powerful than a bunch of kids on their way to a wake.  But I can’t second guess based on my limited knowledge.

On the other hand, that these kids came out of it without rap sheets is something of a victory as well.  The cases against all the kids were thankfully dismissed.  The kids got at least something in return for being harassed, arrested and/or held in custody.  As for Michael Scolnick, who fought for 16 settling plaintiffs, the fee will likely be scarcely worth the time and effort required by the case.  But he did a good thing for some kids from Bushwick who needed someone who cared enough to help.

The Risky Number 5

When New York Governor David Paterson threw caution to the wind by his vigorous support of legislative approval of same-sex marriage, it caused a bit of a storm.  Was Paterson being bold?  Were the opponents being bold?  Or is this just about the stupidest waste of time anyone could imagine?  I vote for stupid.

The deal is done.  It’s been done for a while already, just as I predicted here

Across the country (and across New York), politicians will put on a show of opposition to appease the moral outrage of their constituents at this assault of their religion’s commandments.  After the rhetoric, New York will legalize gay marriage.  There’s no choice.  There was no possibility that a marriage recognized as such in one state could not be recognized in all.

Consider, what if a gay couple married in Vermont and moved to Kansas?  The implications of unsorting the bundle of rights would be beyond imagination.  What a disaster it would be, for everyone.  Who owned the car they drove there in?  Who was the mommy (daddy?) of the dog?  Don’t even ponder the bank account.  The scenario is just ridiculous.  Gay marriage is here, it queer, get used to it.

When the Iowa Supreme Court broke the middle America ice, the only thing it changed was the timing.  Rather than the slow crawl from right to left, Iowa embarrassed the dustbowl refugees who settled in California and votes in accordance with Mormon advertising.  Seriously, if the good people of Iowa can figure this out, just how long is it going to take before the rest come along?

So David Paterson, unelected leader of the cutting edge State of New York, has finally found a cause worthy of strong support.  A cause that’s a forgone conclusion.  While the upstate dairy farmers, courted by his rifle-toting replacement Senator, will mutter some vague complaints, the largest swathe of New Yorkers will applaud his strength, foresight and boldness.  New York has its fair share of gay citizens, you know.  And a bunch of social liberals as well.

So New York might be the 5th State of the Union to legalize gay marriage (if Nebraska doesn’t jump our bones while the Times is composing its favorable editorial).  Big deal.  It’s not bold.  It’s not cutting edge,  It’s not risky.  It’s a given.  Can we move on already, and let all our gay fellow-citizens learn about the joys of marriage that us heteros have endured for years? 

And if Paterson wants to do something bold, he’ll have to do better than being number 5, long after the deal is done.

I Swear, Officer, That Wasn’t My Twit

It really shouldn’t come as any surprise at all that twitter, the techno flavor of the day for those with a taste for brevity and collecting vast numbers of pointless followers, would eventually find itself on the police blotter. And it has.

From Techdirt,


[N]ow we’re seeing stories about some police departments that are actively using Twitter either to send out emergency alerts to people, or to better connect with the community they’re supposed to be protecting. Of course, that story worries about “impostors,” but there are ways to deal with that issue. For police looking to make use of the technology, it can be quite useful, and it’s great to see some actually realizing that and embracing the technology.

That’s how it starts.  Twitter is obviously a great delivery mechanism for bursts of information, provided that anyone is following.  It’s not merely a benign use of twitter, but a positive one.  Imagine that we all follow our local gendarmes to learn of emergencies in our area, like the tickers crossing the bottom of the TV screen.  It really is a great use.

But it won’t take long for the police to figure out that this form of communication, like all others, is a two way street.  Just as they can talk to us, it will dawn on someone that we are talking to each other.  By we, I mean persons of interest, targets, suspects and ordinary people who may be twitting about stuff that may be of interest to them. 

This is an invitation to entirely new forms of mischief.  How long before we have “secret followers,” with police intercepting twits of identified individuals in whom they have a particular interest?  What about general monitoring, with key words or algorithms that make a light go off on some spaceship-like panel in the bowels of some government building? 

And the nature of twitter, which has now gone from the refuge of middle-aged, balding, overweight men to more general acceptance, lends itself to far greater problems.  Because twits are a mere 140 characters, users tend to abbreviate, making their twits often appear somewhat coded.  Twitterers often send messages that make perfect sense to their intended recipients, but can hold very different meanings to others.  That twits seem to hold hidden meanings means that they are subject to facile post hoc interpretation.  Uh oh.

To any lawyer who has enjoyed leisurely reading the transcripts of intercepted telephone calls, including the parenthetical interpretation by special agents of what the parties “really” mean, the potential for misinterpretation of wholly innocent twits is obvious.  I remember once being caught on a wire, calling my mother from a client’s cellphone because it was her birthday and I had forgotten to call earlier (sorry, Mom), and reading a year later that the call was interpreted as a coded request for narcotics.  Once the judge scoffed at the interpretation, I laughed and laughed about it.  The other interpretations of conversations on the same phone weren’t nearly as funny.

Since twits are essentially a shout out to anyone who cares to follow, with the limited proviso that the reader isn’t blocked, it seems doubtful that there is any reasonable expectation of privacy involved.  Thus, twits are fair game for law enforcement.  They are a ripe source of information.  They are there for the picking.

It’s not that I’m trying to throw cold water on the thrill of twitting, the freedom and joy of expressing your every short thought whenever you want.  But when we twit we tend to forget that there are eyes and ears that may be following us more closely than others, and reading our more fascinating twits with an eye toward a purpose that may not be consistent with all the fun and joy of the twittersphere.  Just be keep it in mind.

Membership in the Club Denied

Marc John Randazza teaches law school.  He is an adjunct professor at Barry University Law School in Florida, and knows his stuff when it comes to First Amendment, Trademark, Copyright, Entertainment and Sports Law.  He believes in law students.  He believes in teaching them to become first rate lawyers.  And yet the other lawprofs won’t play with him.

Randazza was one of the original participants in the discussion about Danielle Citron’s Cyber Civil Rights, the online symposium that brought about some great, and some less than great, discussion on her controversial proposition that by turning cyberbullying into a sexist thing, it would justify suppression of free speech and anonymity.  Yet Randazza was excluded as a “symposiast”.  Worse still, when a crack developed in the closed circle of “open-source academics” and Randazza had a chance to get a word in, he was either ignored or berated by other lawprofs. 

When Paul Caron at TaxProf Blog listed the top 35 law professor blogs, Randazza’s very popular blog, The Legal Satyricon, which would certainly have deserved a spot based on its visitors and page views, was nowhere to be found. 

What has Marc John Randazza done to deserve this treatment?  He refused to behave like a good member of the club.

It all spilled over yesterday in his scathing attack on legal academia, The Worthlessness of American Legal Education.  Every sacred cow, every inside secret, all the things that lawprofs are supposed to hold dear, came under scrutiny.  And Randazza told it exactly as he saw it, no holds barred.  This is academic blasphemy. 

The issue is not with Randazza’s qualifications, or thoughts, or scholarship, as far as I can tell.  It’s that he says what he means. He says it clearly and in bold language.  He uses colloquialisms, and truth be told, epithets.  He curses like a drunken sailor, and if he thinks someone is a liar or a idiot, he calls them a liar or an idiot.  What he does not do is employ the multisyllabic, obfuscating jargon of the academy to maintain the level of decorum and collegiality demanded of members of the club.  For this, he is shunned by the rest of the law professors. 

It’s not that scholars are forbidden to disagree, but that there is a rigid manner imposed on the language of disagreement, where it must begin with a statement of positive affirmation and then, coupled with a tenuous claim of potential error, the weak assertion of a counterpoint framed in nonthreatening jargon is marginally included.  Much of the time, one is left clueless as to the points, both for and against, and where and why disagreement exists. 

Indeed, the framework often fails to leave the reader with the notion that there is any disagreement at all, but merely some extraordinarily minor variation on a theme, even when the positions are polar.  It gets that obtuse because no one wants to speak ill of someone else’s idea, no matter how wrong or absurd.  That’s how club members are supposed to treat each other.

As a result of my time in the blawgosphere, I’ve come to gain great respect for many lawprofs. Not all, but many.  Not many respect me, I’m afraid.  Most hate it when I tread on their turf, because I do so in a way that causes them vapors.  Like Randazza, I speak like a lawyer, using course, occasionally vulgar, often snarky and sometimes even brutish language.  My thoughts aren’t wrapped up in pretty paper and tied in a pristine white ribbon.  When I write in disagreement, they attack me.  Ironically, it’s about the only time they find it acceptable to use clear language, but then I’m not a member of the club, so I’m fair game. 

It may be that members of the club have delicate sensibilities, though it’s hard to imagine that they were so soft when they worked for the Department of Justice for that year or two before joining up.  It may be that wrapping themselves in the trappings of academia, a warm cocoon where they are protected from the animals who inhabit the trenches, has insulated them from the harsh world where lawyers scrape and fight with each for intellectual crumbs and dirty fees.  They can be unbearably thin-skinned about disagreement, feeling that it’s unfair and unduly harsh because we don’t used the veiled jargon of the Academy to conceal our real meaning. 

For example, one of my favorite quotes, when Dan Markel at PrawfsBlawg chastised me for using the phrase “circle jerk” to describe the internal goals of law review articles: impress their tenure committee.

The other day, I shared some of Jeff Lipshaw’s advice for beginning law professors. It triggered this  conniption from Scott Greenfield at Simple Justice. Apparently Greenfield was so blinded by rage  over the fact that law profs don’t always care about whether their scholarship had practical utility to practicing lawyers that he couldn’t even accurately read that the advice actually came largely from Jeff (instead of me). In any event, I’d be happy to take credit for Jeff’s pearls [and Scott has since tried to clarify it with an update].

To my mind, Greenfield’s rant is misdirected.  Putting aside the juvenile tone —  is a description of academia as a big “circle-jerk” really all that illuminating? — let me just make a few quick points on the merits.

The phrase “circle-jerk” was not merely a great descriptor, but one that has often been used to describe the insularity of lawprofs agreeing amongst themselves and within themselves.  That may make us (me?) juvenile, but it really is a great illuminator because to clearly conveys the point, something anathema to the members of the club.

These issues have reared their ugly head again with the CCR symposium comments, Straightforward criticism is called “abusive” and “harsh” because it can be easily identified as disagreement.  No one, but no one, openly says that another member of the club is wrong.  Well, actually one person, but that’s only because she is such a bully that she can say whatever pops into her head and anyone who challenges her is immediately labeled sexist and tossed from the wood-paneled clubhouse.  There is no greater crime.  All the other members cower in fear of her. 

The lawprofs really hate the fact that a trench lawyer like me writes about their world.  They send me emails asking, imploring, demanding that I lay off and stay away from them.  Some tell me that they agree with me, but that they could never openly admit it and beg me to keep their emails private.  I respect their requests, because I know that they have to live amongst their own.  But they consider what I do here to be a threat to the carefully crafted image they’ve developed, especially the ones who have yet to obtain tenure.  I can shoot nasty, brutish arrows at them, and they feel that they can do nothing to defend themselves without getting down in the mud with a trench lawyer like me. 

My self-references here are used merely as a courtesy to Randazza.  It’s better to make the point by self-example than to bring the lawprof, Randazza, into the mud, mostly because he doesn’t belong there.  Whereas law schools would never touch a lawyer like me, not just because I have experience in the things that their lawprofs teach, but because I might cause “conniptions” in their faculty meeting when I neglect to use the word “pedagogical” and cause tenured professors to faint.  If I taught, my students might learn how to be lawyers, but could I possibly produce the scholarship that distinguishes a member of the club from the pedestrian lawyer-trainer?

But as easily as the lawprofs can blow off a fellow like me, it’s much harder for them to explain and justify their rejection of Randazza from the secret society.  After all, he’s already got the job, though the tenure track sneers at the lowly adjunct.  But Randazza isn’t some legal research and writing cog, the typical throwaway post, but teaches real courses.  He just won’t play their game.

Neither Randazza nor I think ill of the many lawprofs who post their ideas and thoughts on legal subjects across the blawgosphere.  Indeed, I believe that we both have great respect for them, and I know I’ve learned a great deal from reading their many posts.  But this fear of scrutiny, hiding behind big words to obfuscate their point, and the compulsion to reject clarity because it’s too vulgar for their delicate sensibilities, diminishes their worth. 

It’s fine to ridicule me as a dumb trench lawyer, unworthy of your scholarly attention, but you can only stand on your pedestal if there are trench lawyers like me to look up to you.  It seemed for a while that we were getting past this scholar/lawyer dichotomy, but the CCR symposium made clear that the division remains as deep as ever.  Despite some hearty dissenters, the knives were as dull as ever, except when it came to Randazza.  Suddenly, the soft grew firm and clear.  Like magic.

Marc John Randazza is a lawprof.  He just sounds like one of us trench lawyers.  If you think he’s wrong, stand up to his ideas rather than dismiss him because of his word choice.  If you’re half the scholars you think you are, this shouldn’t be a problem.  Toughen up and deal with the challenge.  Like it or not, he’s one of you as far as the rest of us are concerned, and we can see quite clearly that you’re trying to keep him out of the club.  If you want our respect, let Randazza be a member.

Yes! But That’s Not the Whole Story

The New York Law Journal highlights the report of the The Constitution Project’s National Right to Counsel Committee, which has taken a bold stand, and one that I’ve promoted numerous times, in urging public defenders to refuse to compromise their professional responsibilities by acquiescing to taking on more cases than they can competently handle.


Defense attorneys and defender programs should refuse to compromise their ethical duties and, therefore, should refuse to continue representation or accept new cases for representation when faced with excessive workloads that will lead to a breach of their professional obligations.

When indigent defense systems require attorneys to represent more clients than they can competently represent or otherwise fail to assure legal representation in compliance with the Sixth Amendment, litigation to remedy such deficiencies should be instituted. This litigation should be instituted pretrial on behalf of all or a large class of indigent defendants. And, whenever possible, litigation should be brought by disinterested third parties, such as private law firms or public interest legal organizations willing to serve as pro bono counsel, who are experienced in litigating major, complex lawsuits and accustomed to gathering and presenting detailed factual information.

You betcha!  The promise of Gideon v, Wainwright  doesn’t fall solely on the shoulders of the defense bar, which unfortunately lacks any voice in the legislative halls because our associations are unduly focused on which potential recipient of some “champion of justice award” will bring in the most cash and carry tables to remember why they exist.

In a terrific and very thorough post, Gideon at A Public Defender provides far more depth on the report, which covers far more than just the limited portion I discuss here.

But as much time as I’ve spent promoting the elevation of duty over numbers, the Blind Guy pointed out to me this morning that there remains a bit of a gap that shouldn’t be forgotten. 

The right to have counsel appointed has one very real, very serious condition: That the defendant cannot afford counsel.  In many places, this condition is so ridiculously low that anyone with a 1987 Pinto is considered too rich for a lawyer.  But in other places, say like New York, a person with a house and a job paying $75,000 a year can have a public defender for the asking.  Essentially, there are no qualifications (or review of qualifications) at all.

I support Gideon with all my heart and soul.  I appreciate the working poor, and their need for a free defense, particularly in light of the cost of a private defense.  I’m with you, my brothers.

But you, who can very well afford to retain private counsel but choose not to?  Sorry, pal, but society doesn’t owe you a free ride. 

To the extent that the edge of need is subject to debate, it’s a debate the should be had and the line determined.  But while public defenders are overworked, overburdened, underfunded and at the cusp of professional irresponsibility, the people who take a free lawyer when they have the capability to hire their own are not only stealing from the mouths of every taxpayer, but from the mouths of those truly deserving of Gideon’s aid.  When a poor defendant is denied counsel because a sufficiently well-to-do defendant has taken up the last spot, Gideon has been turned on its head.  This isn’t right.

Some may challenge this assertion by contending that the cost of a private defense will place a hardship on many defendants who, by the numbers, can afford counsel on their own.  This is where the rubber meets the road.  Indeed it will, but who promised every member of this society that they can have a defense in court without suffering any hardship? 

There are financial burdens that are inherent in our criminal justice system, and somebody has to suffer them.  At one point, they were solely on the shoulders of defendants, who could hire counsel at their own expense or suffer the consequences.  That wasn’t an adequate solution.  But the alternative, that society finance defendants who can afford counsel at the expense of the taxpayer and those who truly cannot, is similarly unacceptable.

So let me add one caveat to the call to arms by the Right to Counsel Committee: Before you starting turning away the indigent, be sure you’ve weeded out the free-riders who have the ability to pay for their own defense, even if it means they have to do without cable TV or a mocha latte at Starbucks.  The Constitution promises a right to counsel, but not a pain free ride.

Troy Davis: Bowing to the Streamlined Apple

Via Doug Berman, the 11th Circuit has rejected Troy Davis’ attempt to raise the issue of actual innocence in a second habeas.  While the lengthy per curiam decision mentions the usual suspects, Davis’ prior state appeals and efforts to avoid the executioner, the core of the decision clearly presents the most troubling aspect of the court’s love of procedure as an end in itself.


Indeed, a common theme found throughout the congressional debates was the desire to prevent habeas petitioners from having successive “bites at the apple.” See 141 Cong. Rec. S7803, S7877 (1995) (statement of Sen. Dole) (“By imposing filing deadlines on all death row inmates, and by limiting condemned killers convicted in State or Federal court to one Federal habeas petition — one bite of the apple — these landmark reforms will go a long, long way to streamline the lengthy appeals process . . . .”); 141 Cong. Rec. S16892, S16913 (1995) (statement of Sen. Feinstein) (“[T]his bill provides habeas petitioners with ‘one bite at the apple.’ It assures that no one convicted of a capital crime will be barred from seeking habeas relief in Federal court[.]”); 141 Cong. Rec. S7803, S7809 (1995) (statement of Sen. Kennedy) (“The proposal to limit inmates to one bite at the apple is sound in principle.”); 141 Cong. Rec. S7803, S7832 (1995) (statement of Sen. Biden) (“The vast majority of us . . . want to and have been trying for years to change the old system to limit the time in which a petition can be filed and to limit the number of petitions that can be filed. So essentially you get one bite out of the apple.”).

In other words, we just weren’t putting people to death fast enough to please the politicians.  Streamlining the process became more important than certainty of guilt.  Note the use of the words “certainty of guilt,” rather than certainty of innocence, which is the prerequisite enjoyed by the court in considering the merit of a defendant’s petition. 

Once convicted and sentenced to death, it’s not enough to show that there is a good chance that a verdict of guilt was wrong.  After the word “guilty” is uttered, the world turns on its head and the defendant is guilty.  Why?  Because juries are presumed infallible, and only the heaviest of burdens met can overcome that presumption in a criminal case.  Oddly, civil juries are far dumber than criminal, as they are reversed all the time, not to mention widely ridiculed for their silly and erroneous decisions.  If only civil jurors were as smart as criminal jurors.  But I digress.

The problem isn’t whether Troy Davis’ indictment should be tossed, freed from bondage and given a heartfelt apology.  The problem is that Troy Davis is going to be executed.  Death is different. 

It would be one thing if the court has concluded that upon a full review of the submissions and arguments, it could conclusively state that Troy Davis was guilty and that nothing raised, nothing argued, gave anyone pause to question that conclusion.  But that wasn’t what happened.  Instead, the court concluded that Davis had failed to conclusively prove his innocence.  This leaves a huge gap between the certainty of guilt and the uncertainty of innocence.  Absent that certainty of guilt, death is not the solution.

While I, as opposed to others, am not of the view that capital punishment is the answer to anything, it remains the cure for those jurisdictions that just like a good killing.  I can’t change that, at least not here or now.  But when the best answer we can get out of a court is that a death row inmate hasn’t conclusively proven his actual innocence before letting the executioner earn his paycheck, it’s just not nearly good enough.

One bite of the apple is a favorite expression, a rhetorical device for those who take comfort in clichés when hard thought seems too painful.  “Streamlining” is a positive buzzword, enjoyed by politicians and businessfolk alike, as it suggests doing things quicker and more efficiently.  It puts a smiley face on the death penalty, surrounding it in the language of positives that makes it more palatable for the masses.  This rush to execute stemmed from the perception that it took just too darned long to put someone to death.

When it comes to executions, what’s wrong with being so absolutely certain, so definitively clear, that the person being killed is the killer?  What’s the rush?  Death is different.  There are no do-overs.

Wrap-Up on CCR Symposium: The Horse Won the Race (Citron Update)

After the first day of backslapping Danielle Citron’s “thought provoking” article, Cyber Civil Rights, about turning cyber bullying into a civil rights issue and thereby imposing duties and liability on everyone she could get her hand to safeguard the genteel sensibilities of delicate flowers, the Cyber Civil Rights Symposium at Concurring Opinions turned out to be a far more robust discussion of issues than anticipated.

“Robust”, for those of you who don’t know the secret handshake of the Academy, is the nice way of saying that a few bold lawprofs stepped forward to challenge the chorus of the faithful who, by the mere mention of sexist roots of cyber bullying, could not bend over far enough to support Citron’s proposed remedies that would fundamentally alter freedom of speech online to protect the assumptively female victims.  Let me tell you, it isn’t easy keeping to the sweet, collegial tone demanded by the lawprofs, as the simple yet comprehensible language employed by, oh, say litigators for example, is far too brutish for their intellectual eyeballs.  It made some cry, I think.

A few standout points were made during the three days of whine, women and closed comments.  In a triad of posts, David Robinson addressed the technological infirmities of Citron’s proposed “easy” solutions, including IP logging, screening software (filtering) and differentiated expectations for different internet entities.  Robinson points out how the proposed technologies to solve the problem follow “a long and unfortunate tradition of wishful thinkers” who believe that magic software can do anything. 

Orin Kerr and Devan Desai square off over the use of rhetoric to push this agenda, with Desai arguing:


Civil rights has a certain logic and power. So does free speech. As Nathaniel noted, one can nonetheless find aspects of each position that map to the other. Yet, let me be clear, rhetoric is not and cannot be about adopting a frame. That idea makes little sense. Framing reveals some, but it cannot by itself control thoughtful engagement. Put differently, the power of Danielle’s paper is that it challenges. It forces one to ask the questions that have arisen throughout the symposium. It presents a view of the world that for some is quite accurate, but for others seems unfounded. That is the beauty of the endeavor; it makes one think.

But Kerr opens a window and clears the air:


Deven is surely right that rhetoric isn’t necessarily a bad thing. After all, we’re all lawyers here, and every lawyer uses rhetoric to frame arguments. It’s a basic tool of persuasion.

At the same time, rhetoric can be highly audience-dependent.

In this case, I wonder if the”civil rights” rhetoric has a narrower audience than some of us think. The rhetoric may have a great deal of power to some audiences, be more or less neutral to other audiences, and even perhaps have a negative connotation to others.

In other words, the language of sexist victimhood may not play as well in Peoria as it does in the Academy, where lawprofs will trample each other to get to the head of the line of the faithful.

One of my favorite posts in the series was by David Fagundes, which spoke to the far more fundamental separation of approaches argued way back in 1996:


Easterbrook’s essay, “Cyberspace and the Law of the Horse”, came out in 1996, and as the title suggests, the judge took issue with the idea that cyberspace should be treated by lawyers and academics as a sui generis field. Easterbrook argued that regulating cyberspace with extant legal mechanisms was sufficient, and that there was no more need to offer “the law of the internet” course in law school than there was to offer “the law of the horse”.

Lessig’s 1998 response, “The Law of the Horse: What Cyberspace Might Teach”, unsurprisingly took a more sanguine view of the internet as a distinct subject for legal study. While Lessig did not call for an entirely separate and distinct body of regulations to govern cyberspace (as some scholars at the time did), he did argue that studying the internet could impart distinct lessons about separation of powers, transparency, and the tailoring of law that any other subject matter (e.g., horses) could not.

This struck a nerve with me given my view that search and seizure law in the cyber age would do better with a sui generis approach, though the horse clearly won the race here.  But Fagundes’ point provides a great paradigm for consideration of issues arising from our beloved new technologies from minds that were way ahead of mine.

Surprisingly, one of the most controversial aspects of the Symp turned out to be the decision of the organizers to close comments, the default for every post requiring individual participants to make the active choice to open comments on their individual posts if that’s what they wanted.  It all turned sour with Michael Froomkin turning his comments on and letting the Philistines have their say.  And “say” they did.  Surprisingly, it turns out that not all lawprofs were afraid to express reservations and disagreements, though they did so in that peculiarly pedagogical way that makes a skunk smell sweet and makes litigators shake their heads. 

Of course, Randazza was front and center, writing with his typical robust clarity, which threw some into a tizzy.  The proposed “better practice” was to cease the rhetoric of “lies and distortions” in preference of “differences of interpretation.”  This generated a retort from Seth Finkelstein :


Well, the problem there is that “differences of interpretation” can cover much rhetorical mischief – in the limit, doesn’t this converge to the absurd, that if someone “feels” a certain way, that’s their interpretation, and hence indisputable? Then isn’t it just making ideologues unfalsifiable?

I too don’t understand why so many people are gushing over warmed-over Mackinnon-Dworkin with “cyber” tacked on to it. And let’s put it this way – inasmuch as someone might grant there is such a thing as objective reality, the paper has disturbing variances from it (if you don’t believe such a thing exists, then it’s kind of pointless to talk about scholarship in the first place).

But even lawprofs outside the selected participants found the closed circle on such a controversial subject disturbing. At PrawfsBlawg, Paul Horwitz called the closed circle out:


Of course, much commentary can be unhelpful and unduly emotional.  But that has not usually been a particular problem on CoOp, and I don’t think the comments on the posts that have left the comment option enabled have suggested otherwise.  And of course the fact that some skeptical writers have been included in the symposium means some contrary points of view are aired even if no commenters are invited to the party.  But the whole thing leaves me feeling quite odd, for few reasons.  First, I think it weakens the quality of the public discussion of the symposium, in a way that’s at odds with the usual norms of CoOp.  One of the original posts in the symposium argues that the editors thought that, “for this topic in particular,” the costs of allowing comments would outweigh the benefits.  I don’t think the results have borne that out; whether or not it was intended, the posts that don’t allow comments have an air of ipse dixit, and a kind of “shut up, he explained” attitude toward readers who might disagree, while the posts that allow comments have provided for a more thorough and sensitive airing of the issues.

So what were they so afraid of?


Those people who are most worried about the potential for “abusive” disagreement have also been, in my view, the symposiasts who have made the most sweeping, tendentious, and unsupported claims, both empirical and normative, in support of their arguments.  That makes their “arguments” more like assertions.  It not only prevents their arguments from being as strong as they could be — for, in saying they are making the most tendentious and unsupported arguments, I am not saying they are necessarily making bad arguments — but it also suggests, ironically enough given the topic, that those individuals who are making the claims that most demand heated disagreement are the same people who, on the one hand, fear being openly and heatedly (or “abusively”) contradicted, and on the other would enforce this fear through legal means.  

The easiest way to protect “sweeping, tendentious and unsupported” assertions is to preclude anyone from challenging them.  Ironically, in the comments to Horwitz’s post some of the participants who chose to close comments wrote in their own defense:

James Gimmelman explained that he kept comments closed because of “a small but significant chance that the trolls will descend.”  Trolls on Concurring Opinions?  It’s like someone from Iowa in the 80s refusing to go to New York because of all the muggings he heard about on TV. 

Bruce Boyden explained:


We’re talking about the AutoAdmit crowd here. I think it’s pretty easy to say that someone else should subject themselves to such abuse. If they want to, fine, but I don’t think there’s any obligation.

No obligation indeed, but that does little to either explain why the feared “Auto-Admit” crowd would know about or could care about what the symposium.  Like the bogeyman trolls, this bizarrely far-fetched fear of attack offered more rationalization than rationale, particularly when it devolved into the strawman “obligation” argument.  No one claimed a duty to allow comments, but rather the refusal to do so demonstrated that the sound of the chorus couldn’t survive Simon Cowell.

Former Feral Child cum Popehatter Patrick then spoke the obvious, when he noted that moderation of comments was always available, should things get out of hand.  But Dave Hoffman jumped in with both feet to save the day:


It’s not clear to me why I ought to waste my time responding to such childish, insecure, nonsense. But I guess that some people (Paul?) would find all commentators to be constructive & useful dissenters, and the symposium poorer for not universally welcoming them. My view is that it’s a large internet. We invited a cross-spectrum of voices to post, but we didn’t – and never have – opened our blog up as a public forum. I’ve always moderated my comment threads, pruning them of fools.

Perhaps it has something to do with the possibility, even greater than a horde of trolls, that some comments might be constructive and informative? So much for lawprofs avoiding ad hominems at all costs.  While I am painfully aware of my inability to employ the tactful language of the Academy, falling into the wasteland of practitioners who clumsily struggles to find words to express my simplistic pedestrian thoughts, I still would like to pretend that I have something to add to the intellectual oligarchy that has resigned itself to curing all ills by converting them into sacred cows and thereby justifying their placing the burden of their favorite values on my back.  But I’m just a Luddite lawyer (with a love of alliteration), so what could I possibly add?

In the end, the symposium was quite enlightening, with a handful of “mild dissenters” doing yeoman’s work in countering the arguments that would largely have flown unsupported had there been no skeptical voices.  In the post where comments were permitted, some vigorous and well-justified challenges were raised that would never have been heard otherwise, and those who had no fear of scrutiny demonstrated why a full public vetting of such controversial proposals as Citron’s is necessary.

There was, alas, one huge disappointment.  As readers will recall, Ann Bartow promised on day 1 that she would explain “in her next post” why “the Internet is setting back the cause of women’s equality.”  Bartow was never heard from again.  I hope she wasn’t kidnapped by some sexist Auto-Admit troll.  That would be horrible.  But it may be the case, since I otherwise couldn’t imagine that wild horses would drag her away.

Update:  Danielle Citron, erstwhile proprietor of Cyber Civil Rights, has emerged from an undisclosed location to express her thoughts on the symosium.


In the late 1970s, society made a judgment that threats of sexual violence and comments reducing women to sexual objects in the workplace constituted a pernicious form of sex discrimination, one that unacceptably interfered with women’s employment opportunities in a manner that the First Amendment does not privilege. That normative and doctrinal judgment remains true today and it has much to teach us about the harassment of vulnerable individuals online, especially women. Just as the harassment of female employees with pornographic images in the workplace and sexual taunts inflicts serious economic and social costs, so, too, does the flooding of a female blogger’s income-generating site with pornography (and/or rape threats) and shutting the site down with denial of service attacks. This, I believe, must be part of our thinking about the problem of cyber harassment of individuals from traditionally subordinated groups.

Flooding a female blogger’s income generating site with pornography?  Say what?  Glad she doesn’t just make stuff up.  And as for the process:


The probing discussion of website operators’ standard of care and anonymity were illuminating and important as were the critiques of the expressive value that law can play in combating cyber gender harassment, the subject of my current work. These insights will no doubt have an indelible mark on my future endeavors. And I also wanted to thank those who gave me feedback via email and comments: it was open-source academics at its best.

I am thankful I have no clue what she would mean by closed-source academics.  And there you have it, straight from the horse’s mouth.

Learned in the Law; An Alternative Route

Howard O. Kieffer did some federal time between 1989 and 1992 for theft and filing false tax returns.  By my calculations, that’s three years, say about the same amount of time some of us spent in law school.  From the Duluth News Tribune :



Howard O. Kieffer never attended law school, a federal prosecutor says. But three attorneys testified Tuesday that they thought Kieffer was a lawyer because of his expertise in federal court matters and because they saw him at attorney training seminars.


Kieffer, 54, of Duluth is charged with mail fraud and making false statements in impersonating a lawyer. Authorities say he worked on federal cases in at least 10 states, but North Dakota is the first state to prosecute him.


Not only did Kieffer practice law in the federal courts, but he managed to get some interesting clients and make himself available for speaking engagements.


Authorities said Kieffer lied on his application to practice law in federal court and worked on federal cases in at least 10 states. His clients include a former St. Louis Blues hockey player who pleaded guilty to plotting to kill his agent and a Colorado woman who was convicted of soliciting the killing of her former husband.

Kieffer also led an Internet discussion group on federal prison issues and appeared at seminars throughout the U.S. to speak about federal sentencing, authorities said.

Now I really hate to draw any overbroad comparisons (just because that’s the kinda guy I am), but do any of you see an issue with the many kind and pleasant folks who are busily promoting themselves over the internet, in blawgs and websites, and as consultants available for speaking engagements, who just may not be all they claim to be?

Here’s the rub: It’s not all that hard for someone of reasonable intelligence, who has spent a bit of time carefully observing life in and around the trenches, to demonstrate sufficient proficiency to lay claim to professional qualifications.  If a scammer like Kieffer can do it to federal judges in no less than 10 states, what makes you think they can’t do it under the controlled and easily manipulated environment of the internet?

There’s really nothing funny about what Kieffer did, considering that real people’s lives were on the line when he impersonated a lawyer before a wide swathe of courts.  Who knows what he screwed up, while putting on a sufficiently good show to get away with it.  Of course, there are many real lawyers who don’t do much, so the bar isn’t set particularly high.  But still…

The point remains that everyone online needs to remove the rose-colored glasses, parse the sweet-sounding vagaries that so many pass off as substance, and start looking skeptically at the magical mystery claims of many self-annointed saviors of the law.  Are you sure you know who you are listening to?  Are you sure it’s not a pile of dog poop wrapped up in a pretty bow?  Are you sure?

And if there was ever a secondary means of learning how to be a lawyer in federal court, a few years in federal custody would be it.  So it would behoove you to consider, if the online Svengalis aren’t who they say they are, did they at least do something meaningful and verifiable, like federal time?