Elisha Strom sits in jail because she can’t make the $750 bail.  Why bail was needed to assure her return to court is unclear, given that it’s unlikely that will abscond, leaving her 12 year old daughter behind in Virginia.  Her crime?  Blogging in the first degree.  From  WSLS 10 News :

Elisha Strom, 34, of Thaxton, is charged with one count of harassment of a police officer.

A search warrant on file in Bedford County circuit court claims on July 3rd, Strom posted the home address of a Charlottesville police sergeant.

It also shows she posted a picture of the officer getting into his unmarked patrol car in front of his home.

The officer works for the Jefferson Area Drug Enforcement Task Force, or JADE.

Court records indicate the officer confiscated her computers, notebooks, and cameras.

A police spokesman said, “We ain’t got no stinkin’ first amendment crap around here.  And if you write something on that pad of yours I don’t like, I’ll toss your sorry butt in jail too.”

Elisha Strom, who appears unable to make the $750 bail, was arrested outside Charlottesville on July 16 when police raided her house, confiscating notebooks, computers and camera equipment. Although the Charlottesville police chief, Timothy J. Longo Sr., had previously written to Ms. Strom warning her that her blog posts were interfering with the work of a local drug enforcement task force, she was not charged with obstruction of justice or any similar offense. Rather, she was indicted on a single count of identifying a police officer with intent to harass, a felony under state law.

It’s fair to say that Ms. Strom was unusually focused on the Jefferson Area Drug Enforcement task force, a 14-year-old unit drawn mainly from the police departments of Charlottesville, Albemarle County and the University of Virginia. (Her blog at http://iheartejade.blogspot.com, expresses the view that the task force is “nothing more than a group of arrogant thugs.”) In a nearly year-long barrage of blog posts, she published snapshots she took in public of many or most of the task force’s officers; detailed their comings and goings by following them in her car; mused about their habits and looks; hinted that she may have had a personal relationship with one of them; and, in one instance, reported that she had tipped off a local newspaper about their movements.

Ms. Strom is not the most sympathetic symbol of free-speech rights. She has previously advocated creating a separate, all-white nation, and her blog veers from the whimsical to the self-righteous to the bizarre. But the real problem here is the Virginia statute, in which an overly broad, ill-defined ban on harassment-by-identification, specifically in regard to police officers, seems to criminalize just about anything that might irritate targets.

It should not be a crime to annoy the cops, whose raid on Ms. Strom’s house looks more like a fit of pique than an act of law enforcement. Some of her postings may have consisted of obnoxious speech, but they were nonetheless speech and constitutionally protected. That would hold true right up through her last blog post, written as the police raid on her home began at 7 a.m.: “Uh-Oh They’re Here.”

Fine.  If she happens to be out walking someday and a cow falls out of a clear blue sky to squash her flat, that would be a sad thing only because it would be a waste of a good cow.  Got it.

Over at Concurring Opinions, Dan Solove says that all the hoopla over GatesGate missed the real problem.

In what country can people routinely be arrested (and sometimes imprisoned for a significant amount of time) based on the whim of a police officer or a judge?  Sounds like something that would happen in a totalitarian state, but it’s the way things work in the United States.

In the frenzy of news coverage of the recent incident involving the arrest of Professor Henry Louis Gates in his home, only a small amount of attention was devoted to the issue of police discretion.  Gates was arrested on a charge of disorderly conduct, which was later dropped. Charges such as disorderly conduct basically give the police an enormously broad range of discretion to arrest anyone for nearly any reason.

I’m constrained to conclude that Dan’s opinion is premised on his observations of the blawgosphere, which means that he’s not reading a whole lot outside of his comfort zone of scholarly posts discussing normative pedagogical paradigms.  Or, in English, he’s got to get outside the academy once in a while.

Dan is right about discretion, but totally wrong about the absence of discussion.  The problem is that academics are so busy trying to out-scholarly one another that they refuse to pay attention to anything said outside the clique.  And the problem with this is that all these fine minds are wasted by their refusal to acknowledge that there is a world of discussion, perspective, opinion, by a blawgosphere full of folks whose primary concern isn’t impressing the tenure committee.

I enjoy and appreciate much of the depth of thought and discussion that happens inside the big ivy walls.  Why won’t the lawprofs step outside once in a while to learn what happens in the trenches?  Are we too ugly?  Are we too course?  Are we too forthright?  Do we not use big enough words?  I dunno, but for all my efforts to prod these otherwise brilliant men and women to engage in discourse that might actually do something, they persist in hiding amongst their own.

Dan’s post caught my eye because of his discussion of the Big Yawn case, where Will County Circuit Judge Daniel Rozak, an otherwise decent judge by all accounts, held Clifton Williams in contempt for the Big Yawn.  Williams, there to watch his cousin get sentenced to probation, bought 6 months.

Judges have broad discretion under the law, which defines contempt as acts that embarrass, hinder or obstruct the court in its administration of justice or lessen its authority or dignity. As long as the sentence is not longer than 6 months, there is no review of the case — unless the offender appeals to the judge or a higher court. . . .

In the two-story brick home where Williams had been living with his aunt Cheryl Mayfield and caring for his 79-year-old grandmother, family members said they were in shock over the sentence but were unable to afford an attorney to appeal.

Dan questions why Rozak didn’t just toss Williams out of the courtroom rather than hold him in contempt and slap him with the max sentence.  This reinforces Dan’s point about too much discretion, allowing judges (like cops) to do as they please without any realistic possibility of being held accountable.  Sure, there’s a theoretical path available for redress, but no one is going down it without some non-theoretical money to pay the legal fee.  Unless of course the public defender has some spare time on his hands.  Or maybe, just maybe, some law professor who is actually licensed to practice wants to pick up the ball and run with it.

But the Gates case and the Big Yawn case are the tip of the iceberg.  In the trenches, we know that these are daily hourly occurrences.  Only the really weird ones, or ones involving Harvard professors, make it onto the radar screen.  The garden-variety abuse of discretion lacks the sexiness to interest the media, but is equally meaningful to those poor schmucks who suffer it on the streets of America regularly.

Those of us in the trenches write about this sort of abuse all the time.  Post after post offers examples of abuse of discretion, its cause and effect.  Yet Dan thinks he’s stumbled onto a new idea? 

Seriously.  Get out of the marble halls and see what real life looks like.  You never know, you might learn something.  And maybe even make lawprofs relevant.  Remember, a mind is a terrible thing to waste.

The trustee liquidating Bernard Madoff’s investment company won court approval of a $14.7 million bill for four months’ work by his law firm, overcoming challenges from victims.

The payment to trustee Irving Picard and his firm, Baker & Hostetler LLP was approved today by U.S. Bankruptcy Judge Burton Lifland in New York. Some victims argued that Picard isn’t paying Madoff clients fast enough and is wasting money that should go to them.

“Nothing has been shown that this trustee is not acting in good faith,” Lifland said. “Many of the objections are based on the assumption that granting fees here affects the amount to be distributed; that isn’t the case.”

The amount covers Picard’s work from Dec. 15 to April 30. The trustee and the law firm argued the fees were justified by their recovery of $1.08 billion for victims as of June 30 and their filing of complex lawsuits against the con man’s biggest investors seeking about $14 billion more in damages.

Picard has said 20 percent of the firm’s fee will be deferred until the Madoff brokerage has been liquidated. His law firm said it made a voluntary reduction of more than $111,000 by not charging for intra-office expenses including lodging, meals, airfare and other transportation.

Via Turley, it’s reported that seven lawyers put their lives on the line to defend to defend Iranians who were detained in the post-presidential election.  They lost.

Back in 1972, Geraldo Rivera, who was still a reporter, opened the nation’s eyes to the deplorable condition and abuse heaped upon children at Staten Island’s Willowbrook School for mentally retarded children.  It was appalling, and Americans were shocked when Rivera exposed the deplorable conditions. 

The solution was to end the large scale warehousing of children, and later adults, in these megafacilities where they were kept out of the public eye and everyone forgot about them.  Out of sight, out of mind.  What happened in Willowbrook stayed in Willowbrook.  But as the New York Times reports, closing the nation’s Willowbrooks, which made everyone feel quite proud of themselves for being so concerned for the welfare of children and the mentally ill and incompetent, was no solution.

Over the years, mentally ill adults, given new rights and freedoms after the scandal, exercised their right to live in squalor on the street, with a cardboard box as their shelter in subzero weather.  But at least people realized this unintended consequence, if for no other reason than they had to step over them to get to their limousines.  Children, on the other hand, remained out of sight.

The New York Times reports on what became of the children. 

I remember going to the 1964 World’s Fair and taking the  GM Futuramaride that showed life in the future.  It was so cool, all the things that would change over time. Plus, my parents bought me one of those really nifty hats with the big ostrich feathers.  It was much better than what those fools in the 1930s thought fashion would look like in year A.D. 2000.



There are a host of blawgs that are dedicated to predicting the future of the lawyers.  As before, it’s not presented as merely a future of possibilities, but a reality upon which we are exhorted to stake our careers.  From Susan Cartier Leibel saying that Biglaw is dead and solo is the future, to Patrick Lamb saying that the billable hour is dead and value billing is the future, to Jordon Furlong saying that technology will render in-house handwork an anachronism and make lawyering a commodity.  Even within these seers of the future, there is dispute over whether virtual firms are the future, a future, or utter nonsense.

Whether those who inform us of what the future will be are oracles or profiteers, there are many who want to hitch their wagon to a rising star, whether because it furthers their personal wishes by offering a future that suits them or because they have failed in the past and need a new option. 

In the past, my challenges to those who claim that they know what the future holds has met with arguments, invariably misguided, about why it shouldn’t be this way.  That, of course, is irrelevant, since the future happens as it happens, not as a result of argument.  We aren’t wearing the clothing that 1930s designers thought appropriate, and our food isn’t grown on the bottom of the ocean.  No amount of argument will change this; it’s simply so.

There is nothing wrong with trying to divine the future, and using reason to do so.  But its somewhat disingenuous to promote the idea that anyone knows what the future will bring.  Very few have done so well, like Jules Verne and Gene Roddenberry, and in their cases the question is whether they predicted the future or the future met their imaginations and was guided by it.  With all due respect to my fellow blawgers, I don’t think they will be viewed as such visionaries that they will guide the future.

Some of these predictions strike me as nothing more than snake oil, with hard sell promoters sucking the weak and failed into their web with the promise of future success that comports with their silly dreams.  They are not dangerous because they posit a future that disrupts existing practice, but because they offer a promise to the desperate that they cannot keep.  Some promote the positives of solo practice while ignoring, if not overtly distorting, the risks, problems and negatives.  This disturbs me as it is targeted to some of the most vulnerable and desperate within the profession, and it’s flagrantly false and dishonest. 

Similarly, the entire cabal of work/life balance promoters offer a false god to those least capable of understanding why it’s a fool’s path.  They all have one thing in common, their availability for speaking engagements.  For the most part, they are failed lawyers who have reimagined themselves consultants and marketers.  It would funny as can be that people turn to failures to teach success, except that some actually do.  Of course, some claim that they were huge successes as lawyers, though they can’t offer any rational explanation why then they left the law to put red paint on their faces and sell themselves on Market Street. 

These oracles of the future of the law will get somethings right.  The law of averages dictates that some of their prophesies will come true, though when and how remains in doubt.  But denizens of the blawgosphere, desperately seeking solutions to their current miseries, would do well to be skeptical of prophets.  They don’t know anymore about the future than you do.

On the other hand, if you want to consider a change in your career path, with someone who will tell you the good, the bad and the ugly, I urge you to read Carolyn Elefant’s ebook, From Biglaw to Yourlaw, and should you decide to change your direction, pick up a copy of Carolyn’s book, Solo By Choice, clearly the best, and most honest, primer on going solo there is.

And as for predictions of the future of the legal profession, I have one to make.  The heart of what we do will continue to be represent our clients, first and foremost.  Neither commoditization, nor techno-outsourcing, nor work/life balance, will be accepted as a substitute for excellence.  Anyone who predicts otherwise will be proven wrong.  I stake my reputation on it.

I’m no Jules Verne either, but if you think the future of the law can be found in snake oil, I won’t cry for you when you crash and burn. 

In the old days, one might expect to have a glimmer of understanding about what your judge might be like based upon which president appointed him or her.  Now that we have the Minister of Change in the White House, having gotten the Sotomayor appointment behind him, lesser seats are being filled. 

From the BLT :

“I will never forgive myself for the possible harm I’ve caused to the victims in this case,” he said. “I’m embarrassed, and I feel terrible about the shame I’ve brought to the bench and the bar.”

But Skretny referred to Tills as a “real Jekyll and Hyde” and suggested the former judge and state assemblyman had not shown the level of remorse Skretny would have liked to have seen from him.