Author Archives: SHG

Fear and Stress Are The Lesson

Law students are “among the most dissatisfied, demoralized, and depressed of graduate student populations.”  So what’s stopping them from getting their Ph.D. in art history?*  After all the Mona Lisa never says “denied,” and Starry Night doesn’t depend on its lawyer to save it from the death penalty.  From the WSJ Law Blog:

Law schools have their own version of Scared Straight in the form of cautionary tales. Those are the stories that professors share with students about attorneys who suffered embarrassment or worse for a mistake they made. A good example is the story about the attorney who failed to notice an autocorrect error in his appellate brief that changed the phrase “sua sponte” to “sea sponge.”

But professors who sprinkle their classroom lecture with cautionary tales about attorneys’ goofs should themselves take heed, says Abigail Patthoff, a legal research and writing scholar at Chapman University in California.

There is a reason to instill fear in law students.  It’s to make them aware of the fact that their mistakes destroy other people’s lives.  Patthoff has an article coming out in the Utah Law Review called “This is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students,” arguing that law professors should stop scaring law students by stories of disaster in order to reduce their stress. Continue reading

Berkeley Speech: We’re Being Dirked

Nicholas Dirks, Chancellor of UC Berkeley, sent out an important email about free speech.  It’s not important for what it contributed to the dialogue about it, but rather for what it seeks to take away.  It’s couched in kind, maybe even beautiful words, and it promotes a value that many hold dear.  And it’s very dangerous.

Iforgothowtospeech

At Popehat, Ken parses Dirks’ email line by line.  Some commenters there have questioned whether Ken has taken an uncharitable view of Dirks’ meaning.  As the words speak for themselves, anyone who sees a more benign meaning to a particular word or sentence is free to read it differently. Continue reading

As The Vultures Descend on the Naked Corpse of J-Law

I like art, but I don’t necessarily understand it.  This probably explains why no one has ever asked me to be an art critic.  I have opinions, but they interest no one but me, so I tend to keep them to myself.  I’m not a Millennial.

When news broke that artist XVALA planned to do an exhibit at a Florida gallery using the stolen nude images of young celebrity women, it raised a disturbing problem:

A gallery in Florida announced their plans to drum up controversy and cash in on a high-profile sex crime for an exhibit by Los Angeles artist XVALA that will feature nudes of Kate Upton and Jennifer Lawrence that leaked over the weekend.

The plan is to print out the leaked, unaltered nudes of Upton and Lawrence on a life-sized canvas. Whether that’s legal, we’re not sure, but that’s the plan as E! Online is reporting it. The nudes will be part of a larger exhibit called “No Delete” that will open on October 30.

Is it legal?  There appears to be no doubt that the images were hacked, and this type of hacking, breaking into a person’s iCloud account, is a crime, as it should be. At first blush, the images would seem to be very much stolen property, even though digital “property” isn’t a good fit with historic concepts of property. But when XVALA claims to use stolen property to create art, does it then become art rather than stolen property, and therefore enjoy First Amendment protection? Continue reading

Reassessing Reasonable Rights of Redistributing Relative Risks

Connecticut lawyer and UConn adjunct lawprof Dan Klau, at his blog Appealingly Brief!, provides a remarkably clear and cogent explanation of the theory behind the rights v. utilitarian view of the Fourth Amendment.  The question arose from a discussion that he and Connecticut public defender Gideon had about an awful decision, State v. Kelly, where a stop was upheld on the basis of guilt by association.

Gid blew a gasket when the Kelly decision came down, but some questioned why it was such a big deal.  Essentially, the counter-argument to Gid’s doctrinal position was that it worked, the cops got the bad guy and, well, it just didn’t seem particularly unreasonable.  Reasonable, as a stand-alone concept, has gained traction as an antidote to the warrant clause, where the black letter law that a warrantless search and seizure are unconstitutional per se, absent an exception.  There is no shortage of exceptions, but the alternative approach, a shrug and “well, it seems reasonable to me,” isn’t one of them.

Non-lawyers and quite a few lawyers who don’t practice criminal defense seem untroubled by this.  Actually, they seem fairly amenable to the idea that police conduct that doesn’t strike them as particularly unreasonable, usually because it turns out to be effective in getting the bad guy, should be permissible.  Fourth Amendment?  Meh. Save it for the innocent dudes and the really bad police conduct. Otherwise, let’s not make a big deal of it.

It’s been a struggle to explain what the issue is with this, and a struggle for those to whom the touchstone of reasonableness overcomes all “technicalities” to understand.  That’s where Dan Klau’s excellent explanation comes in. Continue reading

The Wrongfully Convicted: It’s Not For The Money

Doug Berman at Sentencing Law and Policy picks up on an article entitled Reducing Guilty Pleas Through Exoneree Compensations.  The abstract provides:

 A great concern with plea-bargains is that they may induce innocent individuals to plead guilty to crimes they have not committed. In this article, we identify schemes that reduce the number of innocent-pleas without affecting guilty individuals’ plea-bargain incentives. Large compensations for exonerees reduce expected costs associated with wrongful determinations of guilt in trial and thereby reduce the number of innocent-pleas. Any distortions in guilty individuals’ incentives to take plea bargains caused by these compensations can be off-set by a small increase in the discounts offered for pleading guilty. Although there are many statutory reform proposals for increasing exoneration compensations, no one has yet noted this desirable separating effect of exoneree compensations. We argue that such reforms are likely to achieve this result without causing deterrence losses.

At first blush, this appeared to be a good thing, a worthy idea that would serve to benefit the wrongfully convicted.  After all, as much as people may think criminals deserve life plus cancer, few believe that the innocent, coerced into accepting plea bargains for fear of conviction or sentence despite their innocence, should be convicted. They are the system’s mistakes, and shouldn’t those who suffer from such errors be compensated? Continue reading

The Trick of Argument by Analogy

Forced into the fold again,* an op-ed appears in the New York Times by feminist icon, Gloria Steinem and gender studies professor Michael Kimmel in support of California’s Senate Bill 967, dubbed the affirmative consent bill.  It’s proposed as the cure to the epidemic of rape, a rhetorical disease spread only by word of advocates’ mouth.

The op-ed opens with an analogy:

SUPPOSE someone you know slightly arrives at your home, baggage and all, and just barges in and stays overnight. When you protest, the response is, “Well, you didn’t say no.”

The op-ed then goes straight into another analogy:

Or imagine that a man breaks into your home while you sleep off a night of drunken revelry, and robs you blind. Did your drinking imply consent?

Powerful stuff, right?  Analogies are a rhetorical device, which can be used to reduce a complicated, perhaps obtuse, concept into a more easily understandable, more easily digestible, example that drives home a point in a different, usually more familiar, context. Continue reading

So You Don’t Want To Win?

A call came in from an old pal, a partner in one of those huge, multi-national Biglaw firms that get the first call from important people about big cases, because resources.  After going through the usual courtesies, we got down to business.

Him:  So it’s a small case, really. Not the sort of thing that you handle.

Me:  And yet you called. So what’s up.

Him:  Well, the defendant is, you know, “high profile.”

Me:  “High profile”?  As in, an important guy you make a lot of money off?

Him:  Exactly.  So can you do me a solid and take this case and cut him a good deal?

Me:  Wait, you want me to go in for the purpose of cutting a deal?

Him:  Exactly.  Quick and easy, in and out.

Me:  So he doesn’t want to win? Continue reading

Saved By Regulation: Verizon Meets the US Treasury Edition

At Techdirt, Mike Masnick notes a curious regulatory smack on the wrist handed telco behemoth Verizon by the FCC:

The big telcos don’t exactly have particularly good records protecting your privacy. And now the FCC has reached an agreement with Verizon to pay the largest ever fine to the FCC to settle a long-term practice of hiding the fact that customers could opt-out of having their private info shared with marketers. Even as the “largest” ever such fine, it’s still pennies for Verizon at $7.4 million.

To start out the fun, the big problem giving rise to this spanking is corporate use of its customers’ personal info to create a secondary revenue stream by selling it to as many other businesses as it can.

At issue was that Verizon is required to have either an opt-in system for sharing information on users with marketers or an opt-out system. But if they have an opt-out system, they have to clearly tell new customers that they can opt-out and how to do so. Not surprisingly, Verizon chose the “opt-out” method… and then conveniently left out the part where they tell customers they have the right to opt-out. And they did this for several years. To approximately two million customers.

Continue reading

Campus Rape Trials: The Deep Bias of the Empirical Scholar

The “claim to fame” of empiricism is that it forces us to let go of our bias, our preconceived notions that we usually chalk up to such nonsensical vagaries as “common sense,” and look at the harsh reality as demonstrated by numbers. Campus sexual assault and rape is such an inflammatory issue as to provide a compelling slate for empiricism. Unfortunately, one of the foremost proponents, Kansas Lawprof (who just received tenure) Corey Rayburn Yung, reveals that it just can’t be done.

In a recent post at Concurring Opinions, Yung castigated George Will for politicizing the issue.  That view was challenged as being merely the opposite political view of Will, to which Yung responded:

I do think that Will and others are “downplaying” rape on college campuses, but that doesn’t mean I support any particular assessment regarding the magnitude of the problem. My point is that the authors are either assuming their conclusions or cherry-picking data among conflicting reports. That is downplaying regardless of the true level of rape on campuses.

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The Legacy of PACER

It came as a shock when PACER, Public Access to Court Electronic Records, announced in a cavalier fashion that it was deleting old records.

The administrators of that system recently announced that a huge number of documents from five federal courts have been permanently removed from its database and are no longer publicly viewable. For one circuit court, only documents filed within the last 2.5 years are now available; for two other circuit courts, documents now go back only 4 years.

The problem, according to admins, was the “legacy system.”  PACER went live in 1988, back when dedicated terminals were required because there was no viable internet yet.  Back then, it was normal for systems to be dedicated. It was true for Lexis and Westlaw, and most people accessed online services via ISPs like AOL and CompuServe. In 2001, PACER went live on the net.

It wasn’t used much in those days.  Lawyers still filed hard copy papers, and few actually understood what exactly PACER was there to do.  The whole concept of paperless filing was still foreign; after all, how do you get a piece of paper into a computer to upload it to PACER?  Scanners were barely a twinkle in a techie’s eye, and what about signing documents?  Lawyers used WordPerfect on their word processor, and Adobe pdf sounded like a Mexican side dish. Continue reading

So Certain These Two Had To Die (Update)

For death penalty supporters, the horrifying facts of the girl’s rape and murder only emphasized the justice of applying the ultimate penalty.

The rape and murder were horrible, indeed.

…Sabrina Buie, 11, who had been raped and suffocated with her underwear crammed down her throat, her body left in a soybean field.

Horrible.  Henry Lee McCollum and Leon Brown were outsiders to the small North Carolina community, having recently moved there from New Jersey.  They were 19 and 15, respectively, at the time, though McCollum had the mental age of a 9-year-old.  Both were mentally challenged.

No physical evidence tied Mr. McCollum or Mr. Brown, both African-American, as was the victim, to the crime. But a local teenager cast suspicion on Mr. McCollum.

So the police went out and got him. Continue reading

Apparently, You Can Make This Stuff Up

Having served as chair of a very active amicus committee for the New York State Association of Criminal Defense Lawyers years ago, it became clear how amicus could use its platform to bring issues and arguments to the fore that the parties might otherwise have neglected or been precluded from doing.  It was a powerful opportunity.

But one guiding rule was that anything offered had to be accurate in terms of being fully supported.  The idea was that claiming a fact not in evidence, or unsupported, would destroy credibility and render the effort worthless.  The judges would laugh at us if we didn’t maintain our cred.

Apparently, that’s not exactly the case in all courts, or at least not before the United States Supreme Court.  Via Adam Liptak in his New York Times Sidebar column:

The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.

Others stood out. They presented fresh, factual information that put the case in a broader context.

The justices are hungry for such data. Their opinions are increasingly studded with citations of facts they learned from amicus briefs.

Continue reading