Category Archives: Uncategorized

ABA Hops Aboard The Speeding Train As It’s Crashing

For more than a decade, early advocates of the Reinvent The Future of the New Normal of Law have been telling lawyers that the end is near.  The preferred analogy was that technology and alternate models for the practice of law were a speeding train, and that if we didn’t hop aboard, we would miss it.

Some of us have been watching this train all along. We watched as those shouting their glorious predictions of future greatness fell off, never to be seen again. Lexblog’s Kevin O’Keefe notes that after a decade of attending LegalTech, the view of the midway is filled with fresh young faces.

The exhibitors are getting increasingly younger. Take that from someone approaching 60 way too fast. I often wonder though if the these people selling know as much about their product and what it offers as the lawyers, tech and information/knowledge management people they are selling to.

If you read between the lines, what Kevin is saying is that the fresh young faces of ten years ago are gone. Nobody talks about failure. It disappears in the ether, only to be replaced by the next fresh young face filled with the promise of future greatness. Continue reading

Tasers And The Worthless Confession

It seems intuitive when you think about it. Those 50,000 volts don’t merely impact one’s muscles and nervous system, but can addle one’s brains as well.  And let’s face facts, there are brains that are more than addled enough, and a tasing will put them over the line.

Scientists say the results — detailed in the journal Criminology and Public Policy — call into the question the legitimacy of police questioning in the immediate aftermath of an arrest involving the use of a Taser.

“The findings of this study have considerable implications for how the police administer Miranda warnings,” lead study author Robert J. Kane, a professor of criminology and justice studies at Drexel, said in a news release.

The efficacy of Miranda warning has never been entirely clear.  The Supreme Court assumed that following its decision in Miranda v. Arizona, no one would ever willingly subject themselves to interrogation, because it was obviously a really stupid thing to do.  Continue reading

FOIA And The Quick Buck

It’s not wrong to believe that if Congress or a state legislature passes a law, it somehow makes that law magically happen. It’s terribly naïve, but not wrong. It’s not just the “take care” clause, that the executive branch doesn’t like the law, so it refuses to put any effort into making it happen. It’s not even that mandates usually require money, a bureaucracy, behind them, and Congress hates putting money where its mouth is.

So great ideas (along with the horrible) find their way into laws that the public thinks will change everything, and ultimately become just another morass of broken promises, good ideas that don’t pan out.  When collateral issues arise, someone will point out, “wait, there’s a law for that,” and ponder why that’s not a good enough answer.

Have you met the FOIA, the Freedom of Information Act?  It may be one of the most promising laws ever enacted that failed so astoundingly to fulfill its promise. At PrawfsBlawg, Margaret Kwoka explains why. Continue reading

The Fatso Chronicles

Another op-ed about fat shaming graces the pages of the paper of record, because . . . we’re a nation of overweight people and we want to stop feeling badly about it.  It’s now a thing, called “fat shaming,” and it’s wrong because any word that diminishes a person’s self-esteem plus “shaming” is wrong.

Most people are startled by my unapologetic use of “fat” to describe not only the heroine of my novel, but my own body. To a majority of people, fat can never be anything but an insult. So I’ve explained again and again that fat activists use the word proudly in an effort to destigmatize not only the word, but by extension, the fat body.

By “most people,” fat activist Sarai Walker probably means most people she comes across, who give enough of a shit about the issue to spend their time paying attention to the self-absorption of fat activists.  I say that only because “most people” couldn’t care less.

But having shed over 30 pounds in the past few months (Atkins, if you must know, and I don’t care what you think, as it works for me), I have some authority to speak to the issue. It’s not that I was never thin, but over the past decade, my careful eating habits served only to delay the inevitable accumulation of fat around my middle. It caught up with me. With a vengeance. Continue reading

Who’s To Blame For Reform’s Two “Hostages”

It must hurt sometimes.  It’s not that the reforms will do much to change federal criminal law or practice, as they’re tepid at best. That won’t prevent the New York Times from throwing a party.

An opportunity to pass the most significant federal criminal justice reform in a generation may be slipping away — despite the tireless efforts of many top Republicans and Democrats in Congress, as well as a rare exhortation from President Obama during last month’s State of the Union address.

As an aside, the description of efforts as “tireless” is adorable, given that exhaustion has been a key description offered whenever someone complains about how hard it is to create their perfect world.

The bill, known as the Sentencing Reform and Corrections Act of 2015, is the product of years of negotiation over how best to roll back the imprisonment spree of the past four decades, a period in which the federal prison population grew from just under 25,000 to more than 195,000.

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LeGrier’s Killer Tries Tactical Chutzpah*

Off the top, one thing is certain: The factual allegations in support of Chicago Police Officer Robert Rialmo’s claim are completely incredible:

After Rialmo stepped into the front door of the building, LeGrier came “barging” out the front door of the second-floor apartment, holding a baseball bat in his right hand, according to the lawsuit. Rialmo had been standing in the front doorway, and when LeGrier got downstairs, he “took a full swing” at the officer, “missing (his head) by inches, but getting close enough for Officer Rialmo to feel the movement of air as the bat passed in front of his face.”

Rialmo, who was still shouting for LeGrier to drop the bat and had his gun in his holster, then backed down to the bottom of the steps.

LeGrier stood “with the baseball bat cocked back over his right shoulder with a two-handed grip, approximately 3 feet above Officer Rialmo and approximately 3 to 4 feet from where Officer Rialmo was standing on the bottom step of the front porch to the building. Officer Rialmo feared that LeGrier would strike him in the head with the baseball bat so hard that it would kill him,” the lawsuit states.

Officer Rialmo drew his handgun from its holster, and starting to fire from holster level, fired eight rounds at LeGrier from his 9 mm Smith & Wesson handgun, which holds 18 rounds, in approximately two and a half seconds,” the lawsuit states.

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Because The ABA Isn’t Irrelevant Enough

Judge: What’s your objection, counselor?

Lawyer: I dunno, Judge. I didn’t take evidence in law school. But it just, you know, feels wrong.

Judge: Denied.

Lawyer: But Ju-uu-ddge, I really feel that its wrong. Why aren’t you respecting my opinion? With all due respect, it’s because you’re an old, white, male cis-hetero-normative shitlord, your honor, and I am outraged at your hatred and demand you recuse yourself immediately.

–Actual trial transcript, February 9, 2017

Welcome to the future of law, ABA version. No longer must an ABA approved law school require students take evidence.  But that’s old news. The problem for the ABA is that many law students and young lawyers deem the association irrelevant to their world.  And, except for those who bask in the glow of officiousness, the older lawyers have no use for the ABA either. Continue reading

The All-Inclusive “Big Cheese” Solution

An article of faith, that apparently defies rational discussion because those who back it refuse to acknowledge that it comes not from any legitimate reason, but to assuage the feelings of a small group of emotional cripples, is that the cost of debasing communication is trivial compared to the value of making people feel good about themselves.

The suggestion is that this is “bound to happen” regardless of reason, Orwell or Calvin and Hobbes, as those who pray to progressive gods just don’t give a damn about the consequences of their feelz-based demands.  Ego, ergo sum. They insist they’re right, which is the great equalizer between thought and feelings.

In response, some will fight against the tide of dumbing down of language. But many people aren’t up for the conflict, whether because they can’t see the damage of a language where words convey no meaning, or don’t care enough to take on the ire of the ignorant. Continue reading

Reasonable In Cleveland

According to District Attorney Tim McGinty, a reasonable cop in Cleveland jumps out of his car and murders a 12-year-old boy based upon misinformation from a dispatcher that he has a gun.  Not that the cop actually saw a gun, but a reasonable cop wouldn’t take the chance. That’s the baseline for a reasonable cop in Cleveland.

The Sixth Circuit, however, has a different, a higher, expectation of reasonableness for Cleveland cops.

On a summer day in 2010, two armed-robbery suspects were on the loose in Cleveland, Ohio. Officers Brian Kazimer and Dan Crisan were on the case. The officers learned from the dispatcher that the suspects had stolen a wallet at gunpoint and had run toward a nearby apartment complex—the same complex, the dispatcher said, where two men had just given a nearly empty wallet to the apartment’s manager. Coincidence? The officers thought not. After hearing that one of these men was wearing a red shirt and jeans, the officers drove to the apartments to investigate. As they pulled up, they saw someone who matched that description take off running. That gave them reasonable suspicion to detain the fleeing person, the district court held.

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Last Stop, Wall Street

Like most New York lawyers, I know many people who work in the financial sector. Most of the guys are generally fine people, but turn into puerile misfits when around their work friends. When asked why they went from relatively normal human beings to animal house rejects, I was told that it was just the atmosphere of Wall Street, where everyone behaved poorly, childishly, boorishly. And they were, well, okay with it.

One of my closest “Wall Street” friends wasn’t a guy, but the mother of one of my son’s best friends from elementary school.  She didn’t enjoy the boorish behavior, but then, Wall Street had made her quite wealthy. She earned far more than her husband, who wasn’t doing badly himself, and they lived very well.

“Why do you put up with the shenanigans?” I asked her when we were sitting on the second floor porch of her house overlooking Long Island sound.

“For the money.” Continue reading

Does That GPS Match Your Socks?

I occasionally, by which I mean hourly or less, marvel at comments by people who approve or disapprove of something because of their normative views.  Usually, it involves someone with exceptionally limited experience who inductively reasons that if it’s good with them, it ought to be fine with everyone else.  After all, they are the center of the universe, and the world should adopt their tastes because, well, they’re the center of the universe.

But rarely is such a flagrantly narcissistic and unprincipled rationale openly used as the foundation for Circuit opinion. Except by Judge Richard Posner, for whom the rule of law is secondary to his sensibilities.  In one of the more bizarre Seventh Circuit opinions, Judge Posner lays it on the line.

The district judge held the Wisconsin monitoring statute unconstitutional on both grounds, precipitating this appeal by the defendants (in effect by the state). Although the judge wrote a long opinion, it omits what seem to us the crucial considerations in favor of the constitutionality of Wisconsin’s requiring the plaintiff to wear the ankle bracelet for the rest of his life.

Given how slight is the incremental loss of privacy from having to wear the anklet monitor, and how valuable to society (including sex offenders who have gone straight) the information collected by the monitor is, we can’t agree with the district judge that the Wisconsin law violates the Fourth Amendment. The plaintiff argues that monitoring a person’s movements requires a search warrant. That’s absurd. The test is reasonableness, not satisfying a magistrate.

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The Language Formerly Known As English (Calvin & Hobbes Update)

What do you get when you put “334 linguists, lexicographers, grammarians and etymologists” in a room?

That’s what happened here earlier this month anyway, at a downtown Marriott, where members of the 127-year-old American Dialect Society anointed “they,” the singular, gender-neutral pronoun, the 2015 Word of the Year. As in: “They and I went to the store,” where they is used for a person who does not identify as male or female, or they is a filler pronoun in a situation where a person’s gender identity is unknown.

What is it they’re trying to accomplish? They, used to represent the plural, are trying to create a new standard for pronouns that accommodate the flavor of the month, gender fluidity.

“We need to accept ‘they,’ and we need to do it now,” shouted another linguist, hidden behind the crowds.

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