The Promised Rose Garden Wilts

The New York Times bemoans the “broken bargain” with college graduates, following up on President Obama’s commencement address to students at Rutgers, who are already starting out at the deficit of being in New Jersey:

In his recent commencement address at Rutgers University, President Obama focused on the noneconomic reasons for going to college. The skills gained in college, he said, are tools to help “make the right choices — away from fear and division and paralysis, and toward cooperation and innovation and hope.”

No, no mention of his imploring the kids not to be such fragile teacups. That’s not the broken promise. This is:

It was an important reminder, well suited to the times and the occasion. But it also came across as if the economic benefits of college were a given. In fact, the familiar assumption — graduate from college and prosperity will follow — has been disproved in this century. College-educated workers have not seen meaningful pay raises, and public policy has failed to address the stagnation.

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Trees, Forests and Clouds: The A2J Fantasy

In a bit of typical twitter silliness, a truncated discussion broke out following the Stanford Law School CodeX lie-fest. Too mean? Okay, how about circle jerk? Still too mean? Jeez, tough crowd. Let’s try, well-intended but clueless gathering. That’s the best I’m going to do, so suck it up.

One piece of the discussion addressed the self-serving contention that legal tech was the savior of the poor and downtrodden who couldn’t afford legal representation, access to justice, or A2J. I called bullshit.

They wrap themselves up in their white knight armor under the A2J banner, all the while concerned only with whether they can sell their gadget and make a fortune. Don’t be shocked at the hypocrisy and ignorance. These are desperate people, constantly staring failure in the face, in critical need of facile excuses that shift the blame for their ugly, unwanted babies to anyone but them.

How absurd are these self-proclaimed heroes of the poor? When I twitted that if they were serious, they would want serious lawyers to speak at their insular conferences about what law is, lawyers do, clients need, so they would stop creating shiny, worthless gimmicks that fail miserably. The response from the “dumber than dirt” side (apologies to dirt) was: Continue reading

Sotomayor’s Empathy: Lawyers Pay The Price

Supreme Court Justice Sonia Sotomayor opened a can of worms at the American Law Institute when she announced that she was in favor of “forced labor,” a very curious choice of words.

U.S. Supreme Court Justice Sonia Sotomayor said Monday that all lawyers should be required to provide pro bono legal services.

“I believe in forced labor” when it comes to improving access to justice for the poor, she said during an appearance at the American Law Institute’s annual meeting in Washington. “If I had my way, I would make pro bono service a requirement.”

Sotomayor made the comment in response to a question from institute director Richard Revesz about the dearth of legal services for low-income individuals.

The justice said she was aware of programs—like New York state’s—that make pro bono work a requirement for admission to the bar. She also acknowledged that some critics say lawyers who are compelled to work for free “may not give their best effort” to the task.

But professional and ethical duties require it, Sotomayor insisted. “It has to become part of their being,” she said.

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The Crime Of Leveling The Playing Field

In the grand scheme of piss-poor analogies (edit: and the beloved metaphor), leveling the playing field is a winner.  First, it’s not a game. Second, the field is so grossly unlevel that no matter what the defense does, it can’t touch the advantage the prosecution enjoys. Forget all the platitudes that people use about the legal system; it’s meant to be unfair, to favor the prosecution. Anyone who doesn’t realize this doesn’t “get” the system.

But there was a private investigator who found a crack in the system. The crack was an NYPD sergeant, Ronald Buell, who wanted to earn some extra money. Cops like to earn extra money, and this was a particularly easy way to do so, and far less nefarious than other ways, like copping spare dope from dealers or pocketing the piles of cash found in stash houses. Buell sold access to his police computer.

To many defense lawyers, Joseph P. Dwyer, a retired New York police officer who became a private eye, was guided by justice — a highly sought investigator who uncovered key information to help their clients.

But that came at a price: Mr. Dwyer had been paying a police sergeant for information from a restricted law enforcement database, prosecutors charged. And in a sentencing memo this week, the government said Mr. Dwyer’s motivation had been “a desire to enrich himself,” citing his billings of about $500,000 from 2011 to 2014 from public funds used for indigent defense.

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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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