Two cases whose names may well be connected to one of the most important rulings the Supreme Court will make in our lifetime are United States v. Wurie and Riley v. California.  On the surface, the issue is whether the police have the authority to conduct a nonconsensual, non-exigent, warrantless search of a cell phone upon arrest.

While the issue could be disposed of easily with a basic search incident to arrest analysis, where a cell phone  (read smart phone, for those who want to think a step ahead) was deemed just another container that happened to hold digital stuff rather than physical stuff, the ramifications are devastating.

The real issue of these two cases is set forth in Jeff Fisher’s merits brief in Riley (courtesy of Orin Kerr at WaPo Conspiracy), Continue reading →

On the bright side, when Eugene Volokh made the decision to take his big win in the 9th Circuit in Obsidian Finance v, Cox and move the court to tweak the opinion around the edges because a sentence hurt his pro bono client’s feelings, it gave rise to a number of interesting discussions about the duties and obligations of counsel.

Cox had good reason to be unhappy with a sentence in the opinion that was unflattering toward her, to say the least:

Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1.

Still, Eugene beat back a $2.5 million judgment for his client (at least for now) Continue reading →

Thomson Reuters, the venerable marketeer legal publisher, has joined hands with the International Centre for Missing and Exploited Children, and not too small a smattering of federal alphabet law enforcement agencies, to produce a report on the future safety of the digital world.  It’s called The Digital Economy: Potential, Perils and Promises, a report of the Digital Economy Task Force.

Curiously, news of the report was broken by David Lat at Above The Law, under the heading “The Dark Side of the Web.”  After all, it’s not like ATL isn’t all about serious legal issues confronting the safety of children, right?  Lat begins by offering his position:

I am on record as an optimist when it comes to the internet. The free flow of information on the web, including but not limited to websites like Above the Law, helps people make better decisions about their lives and careers (and also entertains, a value that shouldn’t be ignored). Continue reading →

While courts have taken little issue with law enforcement lying (or, in the parlance of the judiciacy, “pretext”) to the public, they assume they’re being told the truth. After all, they’re the judges, and judges are, of course, special.  It’s not like law enforcement can’t trust them, or worse still, think so poorly of their benefactors that they would treat them the way they treat the public.

But then, there was Stingray.  For those who don’t keep up with the law enforcement technology, it’s a device that mimics a cell tower and captures phone data.  A few years back, the WSJ stumbled upon it, and it turns out that the cops were having a field day with it, but for one detail.  They had neither sought nor obtained judicial approval to use it. Heck, they didn’t even tell the courts it existed. But, oh boy, did it exist.

During an appellate argument in a sexual battery case in Tallahassee, some previously unknown details came out. From Wired via Mike Masnick Tim Cushing at Techdirt: Continue reading →

It was the couple quick glances at a wristwatch that derailed the re-election campaign of George Herbert Walker Bush during a presidential debate with Bill Clinton. But for a watch, we wouldn’t have had Monica Lewinsky to talk about. How could you live with yourself?

I’m a watch nerd. That means I love watches. Wrist watches. Dash timers. Pocket watches. Not clocks, so much, but watches.  It’s not that they’re fancy, but that they’re tools reflecting the artistry of the watchmaker’s craft.  Telling time is easy. Watches can be a thing of beauty. If you can’t appreciate beauty, ingenuity and craftsmanship, then your life is empty. I’m sad for you.

In a post the other day, a tangential piece dealt with a lawyer whose watch of choice was a Patek Phillipe Calatrava.  This gave rise to no small issue, Continue reading →

When the Supreme Court considered whether to grant cert in Susan B. Anthony List v. Driehaus, the Cato Institute brief nailed the free speech issue, from the critical question of how one determines “fact” in a political context, as well as the inherent chilling effect of criminalizing speech if one guessed wrong.  It was never a question of adoring political lies, but the price to be paid for robust political speech.

Now that cert has been granted, Cato’s Ilya Shapiro has filed its amicus curiae brief on the merits, and it may be the best amicus brief ever filed.  To wet your whistle, here’s the opening:

“I am not a crook.” Continue reading →

One of my complaints about journalists is that no matter how well they write, they aren’t inherently endowed with expertise on the subject of their reporting. The same goes for lawyers, and particularly judges, who sometimes confuse the majesty of their robes for subject matter expertise.

It’s not that we can’t become reasonably well-versed in a very narrow subject with some effort, but that we should never confuse ourselves with real experts. The Supreme Court heard argument in Hall v. Florida, the follow-up case to Atkins v. Virginia which held it unconstitutional to execute a mentally retarded person.

Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Continue reading →

While most altlaw businesses try to dodge and weave around the fact that they’re committing the crime of Unauthorized Practice of Law, one not only admits the obvious, but is proud of it. Via Carolyn Elefant at My Shingle:

Tandem is structured differently from traditional law firms as well.  D.C. Ethics Rule 5.4(b)  allows for non-lawyer partners, provided that they are also firm employees (as opposed to passive investors) and provide services that “assist the organization in providing legal services.” Capitalizing on this rule, one of Tandem’s co-founders, Michael McDevitt is non-lawyer and former CEO of a successful weight-loss company while the other co-founder, Randy Price brings six years experience as a big law associate. The remaining firm members are comprised of a mix of big firm expatriates and management types, including two with deep roots in e-discovery.

As much as my view toward the ownership of law firms by non-lawyers is negative, one of the key ingredients is that it is also unlawful.  Tandem Legal Group is a law firm. It’s half-owned by a non-lawyer, who brings his experience in running a weight-loss company to the firm, and it comports with the District of Columbia’s ethical requirements. Continue reading →

The side of a NYPD police cruiser bears the letters CPR, for Courtesy, Professionalism, Respect.  It’s aspirational at best, and a cynical marketing ploy at worst. In any event, it is not something to point out when an interaction with police doesn’t go as well as one would hope.

But Mayor Bill de Blasio has decided that his new (and Giuliani’s old) police commissioner should commence a new initiative to make New York’s Finest more user-friendly. Via Newsday:

The NYPD’s encounters with the public will soon begin with a polite introduction and end “on a positive note” under a new “Seven Steps to Positive Community Interactions” curriculum announced Thursday by Mayor Bill de Blasio and Commissioner William J. Bratton. Continue reading →

Willie King took the full ride after recording the Indianapolis police arresting a guy.  From the Indiana Lawyer (via a twit by Radley Balko):

Indianapolis resident Willie King who was arrested in February, 2011 after he used his cellphone to videotape police officers arresting another man. King was charged with resisting arrest, disorderly conduct and public intoxication.

He was acquitted after a bench trial, but didn’t stop there.

Following a bench trial that found him not guilty, King filed a federal civil rights case against the city of Indianapolis and the police officers involved in the incident. The lawsuit, Willie E. King v. The City of Indianapolis, Jonathan M. Lawlis, Robert K. McCauley, Brad Alford, Michael B. Wright and David Miller, 1:11-cv-01727, was filed in U.S. District Court for the Southern District of Indiana, Indianapolis Division. Continue reading →