Author Archives: SHG

Krugman’s Fuzzy Typo

The subject is as political as it gets for Paul Krugman in his New York Times column, but that changes nothing about the fact that he is, legally, as wrong as he could possibly be.  Worse still, he uses his soapbox to make readers stupid, which is inexcusable.

Once upon a time, this lawsuit would have been literally laughed out of court. Instead, however, it has actually been upheld in some lower courts, on straight party-line votes — and the willingness of the Supremes to hear it is a bad omen.

Krugman chalks it all up to partisan politics. Obamacare. What could be more partisan, and indeed, it will remain a partisan battleground. But not for the reasons Krugman thinks.  The suit deals with what appears to be a gross error in how the law was written, bearing on the availability of subsidies only to purchasers in state exchanges.  Somebody screwed up.

It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim.

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But For Video: “Doesn’t Look Good” Edition (Update)

The officer’s calm explanation, when confronted with the video of his conduct, was straightforward.

“I was concerned. It was a public safety issue,” he continued. “If I had to do it all over again, I’d probably do the same thing”

But only if there was no video, so no one, including his superiors at the Saratoga sheriff’s office could see Sgt. Shawn R. Glans’ professionalism in action.

From the Albany Times-Union: Continue reading

Women, Too Delicate For Prison

What were the chances?  In retrospect, pretty darned good. I should have seen this coming a mile away, but I didn’t, and so it struck me as so utterly absurd at first.  As the gender-based approach to law, shifting from equity if not equality to flagrant gender preference, this is merely a natural step in the progression.

From the Washington Post, via Doug Berman, comes this “provocative” proposal by associate professor Patricia O’Brien of the Jane Addams College of Social Work at University of Illinois at Chicago:

It sounds like a radical idea: Stop incarcerating women, and close down women’s prisons. But in Britain, there is a growing movement, sponsored by a peer in the House of Lords, to do just that.

The argument is actually quite straightforward: There are far fewer women in prison than men to start with — women make up just 7 percent of the prison population. This means that these women are disproportionately affected by a system designed for men.

Are prisons a system designed for men?  One might have thought them to be designed for criminals, regardless of gender.  Granted, women are given disproportionately lighter sentences for the same offenses of conviction as men, an example of rank sexism in the courts, but we’re not inclined to beef about it as the notion is to bring men’s sentences down, not women’s up.  Perhaps we’re being too kind? Continue reading

But For Video: What Tech Giveth

A twit from Rick Horowitz alerted me to a post by Anonymous on Apple’s new patent application.  No, this one’s not shiny, and there will be no circus announcing it to all the cool kids.

Apple Inc. has patented a technology that would allow the user – businesses, governments or law enforcement officers – remotely disable features of wireless devices, such as taking or sending photographs or video footage.

The patented technology utilizes WiFi, mobile base stations or GPS to send an encoded signal to all wireless devices within a so-called sensitive area, disabling recording functions. The patent lists potential “sensitive areas” as theaters, concert venues or religious ceremonies, but proponents of free speech worry this technology could be used by police who do not wish to be filmed in acts of brutality, for example.

Really, this shouldn’t come as a surprise.  Just as those magic beams make the toys full of awesome, other magic beams remind us that we’re only allowed as much awesome as Apple, of the government licensee, decides we deserve. Continue reading

Who’s Driving The Future Train At The ABA?

Ever wonder why the ABA never seems to reflect the thought, interests or approach of actual lawyers?  Carolyn Elefant, who wastes her time trying to be involved in such nonsense, explains:

Four years on the heels of its Ethics 20/20 Initiative, the ABA is once again trying to make itself relevant. This time around, the ABA has established a Commission on the Future of Legal Services , with a goal of inspiring innovation and leveraging technology to expand access to justice.  And guess who’s expected to bear the brunt of providing access to justice? None other than solo and small firm practitioners who already do more than nearly any other sector to make legal services available to ordinary folks.

You think I’m kidding? Would that it were so. But one of the issues on which the Commission is seeking comment is:

How can small law practices (e.g., solo practitioners, lawyers in rural communities, small firm lawyers, etc.) sustainably represent those who do not have access to legal services?

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In Defense of Deceit

Jim Comey, seventh director of the FBI, took his case to the public in a letter to the editor of the New York Times.

We do use deception at times to catch crooks, but we are acting responsibly and legally.

That technique was proper and appropriate under Justice Department and F.B.I. guidelines at the time. Today, the use of such an unusual technique would probably require higher level approvals than in 2007, but it would still be lawful and, in a rare case, appropriate.

By Comey’s hand, he defines lawful as approved by the Department of Justice and FBI.  To put this less tactfully, it’s lawful if he says it’s lawful.  It’s the executive branch Nixon answer, that the president can commit no crime because he’s the president.

Every undercover operation involves “deception,” which has long been a critical tool in fighting crime. The F.B.I.’s use of such techniques is subject to close oversight, both internally and by the courts that review our work.

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But For Video: Smashed Teeth Edition

Kaheem Tribble would have blended into the huge, amorphous group of 16-year-old black kids taken off the street after they resisted arrest, forcing the police to engage in some defensive action to prevent their imminent harm from his teeth. Except for the video.

What makes this particularly notable isn’t just that there was video to blunt the routine claim that the young man deserved to be pistol whipped in the face, despite the fact that he had his hands up (as if that ever happens, Michael Brown), but that Kings County District Attorney Kenneth Thompson (who posted the video to Youtube!) has chosen to prosecute the cops for the attack. Continue reading

WAM, Bam, Thank You, Ma’am

Few people know this, but Dan Hull is a sensitive guy.  Deeply sensitive. He cries when he watches Bambi. Every time.  Sure, he may come off as a devil-may-care aficionado of Ernest Hemingway, with images of him running from the bulls in Pamplona, but he is more likely to try to talk to the bulls, to explain his feelings, to empathize with the fact that they’re about to be slaughtered.

Dan is sensitive.  And he knows it.


Listen. I’m a man. I’m sensitive.

Men. There are 3.6 billion of us on Earth. And both studies and anecdotal evidence confirm that, every day, thousands of men are being publicly “harassed” on Twitter. This news item, a post by the Women, Action and Media (WAM!) appeared on my Zite feed this morning: “Harassment of Women on Twitter? We’re ON IT“. But who will stand up for men when Public Online Real Life Unpleasantness (a/k/a Twitter PORLU) happens?

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Cops On The Attack: The Other Side of Free Speech

Shawn Peterson was the cook at Leslie’s Family Tree restaurant in beautiful downtown Santaquin, Utah.  It’s unclear whether he was a good cook or not, though there is no indication he had any Michelin stars.  Still, it looks like a nice restaurant, and Peterson’s cooking must have been good enough to keep the joint from going under.

So they fired him.  Not for his cooking, but for his Facebook page.

“We’re just blown away by this,” said Leslie Broadhead, owner of Leslie’s Family Tree, a family-owned cafe with a Facebook page that normally focuses on daily specials and weekend entertainment.

But this week, the cafe’s Facebook rating began to plummet as negative reviews poured in. In the comments under food photos, people were posting the image of a man in uniform lying on bloody pavement with a bullet through his forehead, accompanied by the text: “This is what a good cop looks like.”

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AOL, The Snitch

First, stop the hating on AOL.  Some of us appreciate its retro feel, not to mention the fact that for many years, it was the only game in town.  Sure, today it’s frowned upon, a dinosaur, but for those of us who were early adopter, having an original AOL email address (the ones without numbers after the name) was pretty darned cool once.

Frank DiTomasso, however, might have preferred CompuServe.  His choice of AOL didn’t work out all that well.  Nailed for sending child porn via his AOL account, he learned that AOL monitors email attachments for illicit materials. From United States v. DiTomasso:

DiTomasso has an AOL email account — [email protected] When AOL users send or receive emails that contain attachments, AOL runs two background monitoring systems designed to scan for illicit material, including, but not limited to, child pornography. The programs work by assigning “hash numbers” to image and video files. In essence, hash numbers are unique number-strings that can be used to archive packets of data —“fingerprint[s]” for electronic media.

AOL employs two different hashing programs. The first—the Image Detection and Filtering Process (“IDFP”)—sweeps for one-to-one matches with known child pornography. If an attached file is a one-to-one match, the email is quarantined —i.e., diverted from the recipient’s inbox—and an automatic report is generated and sent to the National Center for Missing and Exploited Children (“NCMEC report”).

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In Which Harvard Law Students Prove They’re No Smarter Than Any Other Students

In a perverse sort of way, I have always hoped that the students at Harvard Law School were just a little smarter, a little more astute, a little deeper, than others.  It’s not that I thought there was something magical about Harvard, or some sort of negative reaction to Legally Blond, but that I hope that I respect intelligence, and hope that there will be a cadre of smarter lawyers out there than the ones who think they get solid legal advice from the Puddle.

Alas, my hopes were dashed upon reading the response of three Harvard law students to the protest of 28 of their professors to Harvard’s sexual assault policy.  In a Boston Globe essay, Anna Byers, Anna Joseph and Maggie Dunbar went public to express their disagreement, and disappointment, in their professors.

As students of Harvard Law School, we write to voice our support for survivors of sexual assault, for promoting equal access to the benefits of education, and for administrators who treated federal civil rights law as a floor rather than a ceiling.

Perspective is immediately revealed in their use of the word “survivors,” as if death was the alternative to agreement.  But the more significant fallacy appears in the phrase, “a floor rather than a ceiling.”  While a catchy phrase, it’s inapposite to the concept of a well-balanced law, which should be neither floor nor ceiling, but well-balanced. Continue reading