Category Archives: Uncategorized

No Subreddit For Old Lawyers

One of my snappy retorts to commenters here when they lose connection to reality is that Reddit called and wants them back. This, of course, is a swipe at Reddit, a website built of insular communities that tend to have a specific issue focus.

It was once the paradigm of the internet, the wild west, self-policing its content and members. Cross a line, such as dox (reveal the identity of) another commenter and be banned. Moderators were chosen from its more involved and respected members. While some of this has changed, as Reddit became touchy-feely over purported misogyny and subjects that gave some people the willies (often with good cause, but that’s just my sensibilities), it still provides a forum for like-minded folks to discuss matters of interest.

This is good. And terrible. And helpful in a damning sort of way.

At a subreddit called “Bad Cop, No Donut,” a mod who went by the handle FritzMuffKnuckle started having some doubts. He reached out to me. He had an issue with a poster there, a guy who said he was a lawyer, who appeared to be knowledgeable about the law, and who was schooling others about the “meaning” of stories posted. He asked me whether this commenter was for real, knew what he was talking about.   Continue reading

The “Right To Privacy” Sword Swings Both Ways

Is there a “right to privacy”?  The answer, apparently, is whether you want there to be one for whatever outcome you’re trying to achieve.  Cristian Farias makes the point in noting how the Alliance Defending Freedom, an evangelical legal advocacy group, has discovered the right and seized upon it in opposition to the government’s transgender overreach.

As a result of the government’s overreach, students “will suffer the loss of their constitutional right to privacy, because they will be compelled by the government to use restrooms and locker rooms with members of the opposite sex,” wrote lawyers for the faith-based Alliance Defending Freedom, a legal advocacy group representing the plaintiffs.

The “right to privacy” is a peculiar claim for Alliance Defending Freedom, which over the years has supported “religious freedom” litigation before the Supreme Court and lower courts in a number of high-profile disputes. A recent Mother Jones report suggested the group may have played a role in the wave of similar bathroom bills appearing in a number of states.

The reason ADF’s appeal to “bodily privacy rights” or the “fundamental right to privacy” may seem out of place — especially in light of recent constitutional history — is the lack of an explanation for where the right comes from. The lawyers provide no legal citations or support for its source.

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Less Than “Great” Deference To Judge Posner

In his concurrence in United States v. Dessart, Seventh Circuit Judge Richard Posner takes issue with the obsequiousness of review of a warrant under Franks v. Delaware, and that’s terrific, because Franks is a ridiculous decision decided by the Supreme Court of Fantasy Land where a judge will review a warrant, whether issued by him or one of his pals at the judge cafeteria, and, with a completely open mind, opine that he or the other judge was a blithering idiot for signing off on the warrant.

Except, Posner can’t seem to focus on the ridiculousness of the Franks decision, but lapses into a rant against the words, the rhetoric, used by courts in their opinions.

I do not criticize the majority for re‐ citing them, because they are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for reexamination. First is the proposition that when a judge issues a warrant, whether to search or to arrest, the appellate court “must afford ‘great deference’ to the issuing judge’s conclusion” that there was probable cause. United States v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008). This proposition derives from Illinois v. Gates, 462 U.S. 213, 236 (1983), where we are told that the Supreme Court has “repeatedly said that after‐ the‐fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’” Why great deference? Because, we’re told in Ornelas v. United States, 517 U.S. 690, 698–99 (1996), “the Fourth Amendment demonstrates a ‘strong preference for searches conducted pursuant to a warrant,’ Illinois v. Gates, supra, 462 U.S. at 236, and the police are more likely to use the warrant process if the scrutiny applied to a magistrate’s probable‐cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive.” Continue reading

The Dream Team, If Dream Means Failure

It’s bad enough to be on the receiving end of tons of flackcrap, announcing the critically important news that some lawyer won a case or some federal agency managed not to totally screw up the job for which it exists. But once in a while, I open a press release for kicks to find that some publicist hit send after taking a massive dose of a forbidden narcotic. This one was special enough to share.

The new Legal Dream Team!

Hi Scott,
When you hear “dream team,” you’re likely to think of the 1982* United States Men’s Olympic Basketball Team.

But what if we told you there was a legal “dream team” right in the heartland … this one comprised of all-women.

Meet Cathy Kelaghan, Pam Williams and Kathy Kiefer, who lead Anthem Insurance’s Legal Department, based in Indianapolis. Continue reading

Clearing The Backlog: Rape Kits To Nowhere

Emily Winslow was raped in 1992. To call what happened to her rape raises no red flags, as rape was still rape in 1992, before the word lost all meaning and it became fashionable among one’s friends to be a rape “survivor.” This was the rape that forms our disgust and hatred of the crime. And, under the circumstances as they played out, there is no reason to doubt that she was raped.

Winslow wrote about it, reflecting a knowledgeable understanding of why, 20 years later, the rape kit prepared in 1992 wasn’t tested.

MY rape kit was created on the evening of Sunday, Jan. 12, 1992, at Magee-Womens Hospital in Pittsburgh. Tiny pieces of evidence were swabbed, plucked and combed from me: bits of me and, they hoped, bits of him, to be used in court one day to prove who had done this to me. Like many evidence kits collected at that time, it was not analyzed for DNA, and became part of what is called the backlog: untested rape kits across the country, which number at minimum in the tens of thousands.

Rather than bemoan the backlog, Winslow took the time to understand it. Continue reading

Judge Kneels And Welcomes His Governmental Overlords

When it was revealed that the Federal Bureau of Investigation, when pushed to the limit, planned to tell the judge to kiss their collective butts, it gave rise to a question:

So you big-time, important, federal judge, you. How do you like a bunch of guys in polyester suits telling you they really don’t give a shit what you order (unless it’s what you order what they want you to order), because you’re a joke in a robe and they’ve got guns. How does that sit with you, Judge?

This is where some genius will quote Hamilton in Federalist 78 about the judiciary being “the least dangerous branch.”  So what? Either it’s a co-equal branch of government or it’s not. If not, then it’s a palliative, something we do to pretend it matters and suck the will out of us to do something effective, something real.

But Judge Robert J. Bryan of the Western District of Washington, the judge who refused to back down in the face of the FBI’s refusal to comply, engaged in some high math, calculated the integrity of the judicial branch of government relative to the guns of the executive branch, and arrived at the solution. Continue reading

The Limits of Infallibility

Supreme Court Justice Robert Jackson famously wrote in his concurrence in Brown v. Allen,

We are not final because we are infallible, but we are infallible only because we are final.

Finality is a funny thing. A debate has been playing out at Fault Lines over the AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996, which has come back into focus because of the presidential race.

Josh Kendrick kicked it off with his post about how AEDPA “castrated” habeas corpus. Judge Richard Kopf followed up, arguing that it reflected a political judgment that habeas can’t go on forever.  Andrew King provided a deep dive into the history of habeas, and argued that our current adoration of innocence distorts our expectations of habeas.

Jeff Gamso, who has stood beside too many dead men walking, calls bullshit on the innocence fetish, and speaks to the fallibility of judges, courts, the system, to get it right for anyone, guilty or innocent.  Of course the creation of law is political; that’s how it’s meant to be. But there is a built-in assumption that a political decision is the right way to arrive at what the law should be. From that starting point, we vest a belief in judges to rise above the partisanship, the making of the sausage, as if this thing called “law” has a right answer. Continue reading

13 Questions While The Poor Have No Lawyers

Some people just love empiricism. They don’t really “get” empiricism, but give ’em some stats and they get all warm and fuzzy, feeling more brilliant with every numeral. Unless the numbers don’t confirm their guts, in which case something is horribly wrong, though they don’t have a clue what. But it is.

At the adorable Marshall Project, the only media outlet to seriously discuss criminal law issues (since no one else on the internet does*) and which has graced our nation by putting together a fabulous group of writers who have a grand total of absolutely no experience in criminal law whatsoever, they offer a listicle of really cool empirical questions that, wait for it, no one can answer!

A few weeks ago, the White House trumpeted the progress of its Police Data Initiative. The nearly one-year-old project prods local cops to publish data on their operations in a bid to increase transparency and build trust with the communities they police.

The results were underwhelming. Of nearly 18,000 police agencies from coast to coast, just 53 had signed on to the effort. Of that inaugural class, eight released data on officer-involved shootings, and six published information on their officers’ use of force.

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Obama Takes The Easier Route: Forgiveness (Update)

Rear Admiral Grace Hopper wrote that it’s easier to ask for forgiveness than permission. That was President Obama’s tact, expressed in one of the most worthless interviews of a president ever conducted, where a fawning Chris Geidner of Buzzfeed, wearing his Paul Stuart tie bought specifically for the occasion, embarrassed the internet by proving that it’s not up to the task of creating even the appearance of competence.

In fairness, few on the internet would expect much of Buzzfeed, in general, or Geidner in particular. No doubt the president chose carefully, given that the hardball interrogation by a Larry King-type would be too much for the president to handle. Who, among “legal journalists,” would pitch the ball slowest?

The choices ranged from the hard hitting Salon to the crucible of Vox, from the deep challenge of Huffington Post to the incisive Slate. But no, Buzzfeed got the nod, and lawyer-for-a-day Geidner bought a tie to pretend to be a grown-up. Obama could not have been more proud of his choice.

But why would a lame-duck president take to Youtube anyway?  The answer is that he had a controversial message to send: he did it. It’s done. He didn’t ask permission. Continue reading

Silent Green

The Dartmouth Review provides the sequence of events, starting with the Dartmouth College Republican club using its bulletin board to display “Blue Lives Matter” for National Police Week.

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On the one hand, it’s hard to imagine a display more deliberately provocative than this, both because of the adoption of the Black Lives Matter slogan and because Dartmouth is a hotbed of inane protest, where students risk paper cuts to protest their cause.

But speech that’s politically provocative is free speech. It’s often mistakenly expressed as the speech worthy of greatest protection, mistakenly because it suggests there are degrees of protected speech. And unsurprisingly, this bulletin board soon became the battleground, as its content was removed and replaced by Black Lives Matters materials, while students guarded the board so that the College Republicans couldn’t remove the protest materials and restore their speech.

Dartmouth, naturally, wanted only to avoid confrontation and hard feelings. Continue reading

Brooklyn Boilerplate Bites The Dust

For anyone who has never had the joy of reading a warrant application, it consists of many pages of squiggly lines, most of which appear in every application. It’s called boilerplate, the words, sentences, paragraphs, the citations, parentheticals and footnotes, that someone crafted to meet the statutory language and saved on a computer deep in the bowels of the United States Attorneys office. Whenever a new warrant is sought, someone presses the “paste” key and, boom, there ya go.

If you’re a Magistrate Judge, this pathetic excuse to kill trees ends up on your bench, day after day, as if you would actually read it. As if it might say something that wasn’t said in every warrant application ever placed on your desk. If it wasn’t fascinating the first ten times, it surely wasn’t fascinating the last thousand. And you thought the job of mag was all fun and games?

But Eastern District of New York Magistrate Judge James Orenstein got tired of flipping through the first 24 pages of the application in search of the three lines of actual substantive content, only to find nothing there. Continue reading

Comey’s Coward Cops

Jim Comey has been paying attention to the voices of America. What he’s learned is how we latch on to simplistic slogans that strike a chord among the unwary. This wasn’t exactly an epiphany, as the United States Attorney for the Southern District of New York had a double secret department dedicated solely to coming up with cool platitudes back when Comey was a trial assistant there.

But America has entered a golden age of simplistic slogans over the past few years, and millions rally behind slogans that don’t bear up to scrutiny. Why not make it work for law enforcement? And who better to voice the rallying cry than the director of the FBI? That would be Jim. Last week, he did his grand unveiling of the slogan that would fix the horrible public relations fiasco that has sapped the blind faith of America in support of his team, and out came his uber-cool effort: the Viral Video Effect.

James Comey, the director, said that while he could offer no statistical proof, he believed after speaking with a number of police officials that a “viral video effect” — with officers wary of confronting suspects for fear of ending up on a video — “could well be at the heart” of a spike in violent crime in some cities.

“There’s a perception that police are less likely to do the marginal additional policing that suppresses crime — the getting out of your car at 2 in the morning and saying to a group of guys, ‘Hey, what are you doing here?’” he told reporters.

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