The opinion is 98 pages. I didn’t download it. I didn’t read it. It will be reversed, as it was last time.  But EDNY Senior Judge Jack Weinstein isn’t going to let that stop him from applying the parsimony clause of 18 U.S.C. § 3553(a), which provides:

The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.

The emphasis is mine. And Judge Weinstein’s.  The Second Circuit can try its best to smack Judge Weinstein for his refusal to impose a sentence that meets their demands of harshness, but they can’t touch him.  He’s got life tenure, and he’ll never be tapped for the Supreme Court.

If you think a 98-page decision is long, it’s way shorter than the 400-page decision he issued last time, plus a 9-page rejoinder to the circuit’s reversal.  After the last reversal, the question was raised whether this was a demonstration of judicial courage or abdication of responsibility. Continue reading →

My father tells the story of his return from Europe at the end of World War II.  My grandfather gave him a hearty handshake and told him he was welcome to stay with him for at least a week, after which it was time to find a home of his own.  The week was to give my father the chance to find a job.

He returned from Germany a grown man, having done as his country asked of him and his beliefs demanded, and it was now time to rejoin civil society as a responsible adult. The meant he had to work, earn a living, support himself and establish his life.  He appreciated his father’s generosity of a week’s cover.

A lawyer friend of mine, whose name I won’t reveal because he asked me not to, forwarded an email to me sent by his former associate. She came recommended by her law school placement office as smart and interested in his niche practice area. He interviewed her and concurred. He gave her a job. Her first job.

She was awful. It wasn’t for lack of intelligence, or even legal knowledge. It was that she couldn’t produce work. His law office was like every other small firm that does litigation. There are slow times, then an emergency requiring work be done now.  When a motion is needed now, it means work has to be done now. Good work. Hard work. Now. Continue reading →

A baby lawyer called me a “sarcastic, dismissive asshole” in the comments yesterday. I wasn’t offended and I didn’t deny it. It’s one of the good things about growing old, in contrast to the bad things like discovering painful body parts you never realized you had.  You live through ties getting wider, then thinner, then going away and coming back. You live through hemlines going down, then up, then sideways and asymmetrical, a horrible look.

A penthouse apartment in Chicago has come on the market that hasn’t been touched since the 1970s.  I can well remember when the style was all the rage, when kitchen appliances were either Harvest Gold or Avocado Green, or out of fashion. Today, stainless steel is the preferred look. Back then, industrial would have been horribly unfashionable.

What this means is that fashions change. When I visited Graceland, which remains today as it was when Elvis left the building, I wondered what young people saw in the green shag carpet on the ceiling. Did they laugh at its ridiculousness? Do they not realize that today’s fashions are just as ridiculous, but theirs?

Continue reading →

About twenty years ago, a woman came up to me as I was walking into a school board meeting, to enlist my support for her neighborhood’s quest to save an unused elementary school from being sold and the land developed.  Wasn’t open space important? Wasn’t it better to have a park than houses? Didn’t it add to the quality of life?

Well sure. In a vacuum. And to her quality of life. But not to mine or anyone else’s in the school district who didn’t live in her neighborhood. And certainly not to the children who attended school in the district, or the taxpayers who supported the district, which needed funds to pay for the gold-plated pencils parents demanded for their poor, beloved babies in a district that already levied outrageous taxes. So many problems, on all ends, that needed fixing, but of all of them, the woman’s desire for a pocket park for her neighborhood was the least of them.

That’s when it became clear that the empathy card, when overplayed, could be a disaster. It’s not about people whose rights were lost to the tyranny of the majority, but people who made a very empathetic argument for why their personal interests were worthy of the allocation of scarce resources. It wasn’t that her arguments weren’t valid, but that society can’t accommodate everyone’s personal desires, and that meant someone wasn’t going to get what they want.

The People for the Ethical Treatment of Animals thinks a monkey named Naruto deserves to enjoy the same rights as a human being. Is a monkey not as worthy of rights as a person? Do they not feel pain, love, happiness? Perhaps, but when animals get rights, we don’t get to slaughter and eat them. Continue reading →

It’s not exactly the newest game in town, as the cognoscenti have long appreciated the fact that lawyers are subject to professional oversight and discipline, and there is no downside to making a complaint against a lawyer. Any flaming asshole can do it.  The worst that happens is you get a nice lawyerly letter telling you that you’re a moron.

But a doc who does medical exams for insurance companies, which are humorously called “I.M.E.s,” for “independent” medical exams because insurance companies have better lobbies than plaintiff’s lawyers, has decided to use the grievance process to go after Michigan lawyer Steven Gursten for outing her.  Via Turk:

Now comes before us today one Dr. Rosalind Griffin, a Michigan psychiatrist, with a different tactic: Filing a grievance against lawyer Steven Gursten for blogging about a medical-legal exam that she did on one of his clients.

Gursten was so ticked off at Dr. Griffin, that he wrote about her.

And what did Griffin do that so offended Gursten? Glad you asked. Continue reading →

The scam was pretty good, as scams go.  A 15-year-old was used as bait on Backpages to lure the sort of twisted guy who wanted a young girl, only to be met by a guy with an Airsoft gun, who robbed him, including forcing him to go to the ATM to empty his bank account.  After all, there is a good chance the robbery victim wouldn’t go crying to the cops that he was there to commit a crime of his own, right?

Yet, the scheme was revealed and the perps were caught and prosecuted, including the 15-year-old girl.  That’s where the tears started flowing.

On Facebook, Latesha Clay looks like any other 15-year-old girl. Her hair pulled back into a ponytail, she wears mostly sweats and sneakers in blurry selfies taken with friends and her many siblings.

But on Jan. 11, Clay’s life took a drastic turn when she was sentenced to prison for up to 20 years. Her crime? The teen was the bait in a series of Backpage escort ads designed to lure men into a robbery scheme.

Continue reading →

While Michael Dukakis was stuck in a photo op with an ill-fitted helmet, the opposition trotted out Willie Horton. Fear kicked Dukakis’ butt, and George H.W. Bush became the nation’s 41st president. Fear works.

But given that the usual tough-on-crime fearmongering of the past isn’t in vogue at the moment, with neither street crime nor terrorism playing well in Peoria, it’s tough to find a bogeyman scary enough to light a fire under the faithful and generate enough fear and loathing to make people give a damn.  Enter Elizabeth Warren, Senator from Massachusetts and former Harvard prawf, as attack dog of the downtrodden.

In a single year, in case after case, across many sectors of the economy, federal agencies caught big companies breaking the law — defrauding taxpayers, covering up deadly safety problems, even precipitating the financial collapse in 2008 — and let them off the hook with barely a slap on the wrist. Often, companies paid meager fines, which some will try to write off as a tax deduction.

Curious that the metaphor has gone from “slap on the wrist” to “barely a slap on the wrist.”  Perhaps Warren should be writing a letter to former AG Eric Holder about what the hell he was thinking. And what constitutes a “meager fine” is a relative thing, since many of us would struggle to pay off a few hundred million and find it slightly greater than “meager.” Continue reading →

It usually comes as a surprise to non-lawyers how little information one can obtain about a witness for the other side. While some states allow depositions, and most states require disclosure to the adverse party, it doesn’t happen, and no one cares. Yes, the statute says you’re entitled to it. The other side says, “meh.” The judge says, “meh.” And that’s that.

How is this possible, you ask? Welcome to the law, kidz. For criminal defense lawyers, it means going to trial pretty much blind as to what the witnesses for the prosecution will say.  So how do we prepare?  On the fly, as best we can, because there is no alternative. You can cry about it, wring your hands, scream “unfair” all you want. Nobody gives a damn. Not the prosecution. Not the judge. Not the appellate court. Shrugs all around.

All of which makes what’s happening in Albuquerque both infuriating and, well, happy.

Prosecutors trying two former Albuquerque police officers for murder recently were granted access to numerous records from a controversial witness with a long history of testifying on behalf of police officers who shot people in the line of duty. Continue reading →

In the olden days, the word “communication” in a restraining order that forbade a person from communicating with another person meant not to speak in person, call on the phone, send a letter or, if we go really far back, send a telegram.  It was easily understood, because it was widely accepted that these were the normal means of communication. It didn’t require greater detail.

But we now have a slew of means of engaging in communication that didn’t exist before.  And unlike the historic means, they not only involve direct communications, but indirect.  We can include their @twit name in 140 characters directed toward someone else, or no one in particular, for example. We can link to their blog or website. We can also tag them in a Facebook post.

Is this communication in violation of an order prohibiting communication?

Maria Gonzalez was not allowed to contact her sister-in-law Maribel Calderon. The New York Law Journal reports, though, that Gonzalez tagged Calderon in a Facebook post and is now being charged with second-degree criminal contempt because of the alleged tag. CNet reports that she is facing a year of jail time. Continue reading →

It’s unfortunate that academics rarely grasp the shithole they’re in until someone dumps a pile of vomit on their heads, forcing them to make the choice of whether to duck. But then, it can get warm and comfy in that hole, and require something particularly disgusting to cause an academic to take a hard look at why they do.

Laura Kipnis was forced into this unpleasant situation, things just got worse from there.  But it wasn’t for naught, as Kipnis explains when being interviewed on writing.

How did you learn to write for a more general readership?

Kipnis: I’d shown one of my videos at the big cultural-studies conference at Illinois, then for some reason the organizers asked me to write something for the volume — that first huge cultural-studies reader. I said I wanted to write on Hustler magazine,  which I was a little obsessed with at the time, and to my surprise they said sure. So that came out and caused a bit of a stir because it raised class issues in relation to porn, which wasn’t something being talked about at the time, certainly not by feminists. Then Joy Press, who was an editor at The Village Voice, asked me to write a cover piece on Larry Flynt timed to the Milos Forman biopic about him that had just come out. Which was the first time I was really edited. It was like going to writing school for a year crammed into a couple of days of editing. Continue reading →