Gems keep coming out of the papers in the battle over the discovery in Jay Michaud’s child porn case.  It’s already come out that the government doesn’t trust prosecutors enough to tell them the truth, because they might turn to the dark side one day and become defense lawyers.  And the government’s been lying to judges because it’s just too easy, since judges will believe anything they say.

But what happens when a judge orders the government to disclose something that government would prefer to keep to itself?  Brad Heath provides the answer:

The FBI has said it will not comply with a court order to reveal its Tor Browser exploit “under any circumstances.” pic.twitter.com/kAfXR4Lf8K

— Brad Heath (@bradheath) April 25, 2016

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It was bad enough when Congress passed the AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996, that included the functional death of the Great Writ, but even when the Supreme Court holds a law unconstitutional, the poor schmucks in prison cells for having broken it still don’t get to pack their bags to go home. Crazy, right?  Not so, argues my favorite prosecutor, Andrew King, at Fault Lines:

This is not some diabolic scheme to keep people in jail on unconstitutional charges. Rather it is consequence of the rules promoting finality in judgments. Eventually, everyone involved in the matter needs to have confidence that the judgment is final and can now move on with their lives. Granted, though, that inmates do not really get to move on with their lives until their sentence is up.

But eventually memories fade, people die, victims want to move on and heal, and evidence is lost or spoiled. It can become practically impossible to retry some cases after enough time elapses. So, finality of judgment often promotes just and desirable ends, sometimes even when some aspect of a criminal case changes constitutional directions after conviction.

The competing interests are finality versus fairness. It’s not that people argue the virtue of keeping people imprisoned for violating an unconstitutional law. It’s that all good things must come to an end or nothing will ever be final. Continue reading →

The Second Circuit was asked a pretty straightforward question: why should an attorney admitted to practice law in New York and New Jersey, but whose primary practice is in the Petroleum State, be required to have a physical office in New York? The claim was that it violated the Privileges and Immunities Clause of the Constitution, art. IV, § 2, which putatively allows residents of one state to enjoy the rights given residents of another state. Because, we’re all Americans, right?

The court held that New York Judiciary Law § 470 was not unconstitutional.  Well, of course not, and for a bunch of good reasons, like the ability to effect personal service on an attorney who just ruined your life because of incompetence, or to retrieve your file when the lawyer took your money then did no work on your case or failed to appear in court. Lots of good reasons. Tons of them. Except those weren’t the reasons upon which the court ruled.

Instead, the basis for the court’s conclusion was:

As this history demonstrates, the in‐state office requirement was not enacted for the protectionist purpose of burdening nonresident attorneys in practicing law in New York.  Rather, it was enacted to ensure that every licensed New York lawyer, whether a state resident or not, could practice in the state by providing a means for the nonresident attorney to establish a physical presence in the state (and therefore place for service) akin to that of a resident attorney.  A statute enacted for such a nonprotectionist purpose is not vulnerable to a Privileges and Immunities challenge.

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When Above the Law decided to eliminate its comments, I suggested it prefaced a shift in direction from its last ten years of lurid T&A content to its new focus on insipid social justice-y clickbait. I think some of the folks there are angry with me, even unfollowed me on the twitters, for revealing their secret plan.

But then, the New York Times Room for Debate raised the issue as well.

Many newspapers and online media companies have begun disabling comment sections because of widespread abuse and obscenity. Of course, that vitriol is not meted out equally: The Guardian analyzed its comments and found the 10 most abused writers of the past decade were female and/or black. (The Times moderates comments in an effort to keep them on-topic and not abusive.)

Have comment sections — once thought to be a democratizing force in the media — failed?

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The Palm Beach Post revealed that there is audio of Corey Jones’ murder.

An audio recording of the controversial shooting of Corey Jones by a Palm Beach Gardens police officer six months ago does exist, The Palm Beach Post has learned, and it doesn’t completely match what the officer told investigators.

Corey who?  Just a dead black guy on the side of the road who had the misfortune of his car breaking down.  Nothing to concern yourself with, especially when compared to critical matters of racial injustice, the papercuts of oppression that are so painful and horrible that they demand our complete attention rather than, say, the murder of Corey Jones.

Quick, crank up the outrage machine. I hear there’s a white guy in dreadlocks who might get away with it. And don’t worry your pretty heads about Corey Jones. He’s dead. He no longer feels any pain, unlike you sad papercut survivors.

That students demonstrate no grasp of the First Amendment is nothing surprising. In a weird sense, it’s not their fault. They’ve been told that it means whatever they feel it should mean, with a plethora of wild expectations and demands that pop into their collective heads for no particular reason. They’ve been indoctrinated with such simplistic fortune cookie nonsense as “rights come with responsibilities,” and those responsibilities mean “hate speech” is not protected. They just make up whatever “responsibilities” suit their feelings.

Combined with their narcissistic entitlement to inform others, like lawyers or House Masters, of their personal vision of law, it’s amusing, exasperating and, invariably, idiotic. But they’re kids. You expect kids to be kids. You expect them to believe all manner of nonsense that comports with their sense of propriety. Isn’t that what childishness is all about?

What is not expected, or acceptable, is for the Department of Justice to hop aboard the crazy train driven by the Queen of the Gender War, the Department of Education’s Office of Civil Rights rogue bureaucrat, Catherine Lhamon. Her reach beyond her limited authority under Title IX to unlawfully seize jurisdiction over every sexual (at least, sexual as perceived by the “victim”) interaction between students has been thoroughly discussed, not that anyone in Congress has shown sufficient interest in reining in the out-of-control Avenging Angel of sad sexual survivors.

In a 37-page letter, the Department of Justice, by Shaheena Simons, [Acting] Chief of the Educational Opportunities Section, Civil Rights Division, and the New Mexico United States Attorney, Damon Martinez, has taken Lhamon’s micromanagement of student relations under wing, and with the prosecutorial fiat of DoJ, threatened the University of New Mexico to capitulate by violating the Constitution.  This isn’t a tangential suggestion, but a direct command: Violate the Constitution. Or else.  Whereas the DoE’s only clout is withholding federal educational funds, the DoJ’s power is far more nefarious. They wield the bludgeon of prosecution. Continue reading →

There is an implicit assumption that arguments before the United States Supreme Court involving constitutional rights are presented by the best and brightest, the fully prepared, the lawyers who have earned the right to stand before the nation’s highest court and present a branch of government with the strongest, most sound, arguments possible.  After all, the rights of every American are at stake, and what could be more important?

Sit down. I have something to tell you, and it’s going to make you sad.

The justices of the United States Supreme Court are at their best when united against a common foe. It’s much easier to put aside doctrinal differences and work together when an attorney at the lectern sounds like a clodhopping amateur trying out for the moot court team. On Wednesday, in a critically important Fourth Amendment case, not one but two advocates performed so terribly that the justices effectively gave up and had a conversation among themselves. The result was a deeply uncomfortable 70 minutes during which the clash between state power and individual autonomy took a back seat to jokes about night court and hillbilly judges.

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Sometimes I think it’s me. I read what other people write, shake my head, and mutter to myself, “they didn’t say anything, and they murdered 1000 words doing so.” Nouns have become verbs. Adjectives wrap around every noun. Strings of jargon leading nowhere, saying nothing, are repeated paragraph by paragraph, changing their order without disrupting a damn thing. Am I just too old to get it?

Nah.

Last week, I received a PDF presentation about “Helena,” a new startup boasting a 20-year-old Yale student CEO and connections—so they claim—to some of the most powerful and influential people in the world, from Stanley McChrystal to, uh, Selena Gomez. I spent the better part of last week trying to figure out what the company does—and I’ll level with you, man, I’m still not sure.

As far as I can tell, after having read the PDF deck (embedded at the bottom of this post, purportedly circulated by a PR rep working for Helena) multiple times, the company is a group of people who are doing something. That something appears to be “change,” although it’s unclear what they’re changing or how. 

Sam Biddle’s post is hysterical. He’s met, level by level, with facial bullshit for the audacity of trying to find out what this promoted enterprise, named “Helena” for no discernible reason, does. It’s got money, backed by the baby-boss’ rich VC daddy, but no purpose. This may be the greatest business of all time. Continue reading →

The curious world of academia has given us too much love lately to make each piece of pedagogy into its own post, but it would be a shame not to share. So, a quick stroll across campus.

The sadly marginalized students of Harvard Law School have come up with a new demand: Free Tuition!!!

It has been 134 days since we presented you with our demands at the Community Meeting on December 4, 2015. Although we appreciate your efforts in effectuating symbolic change with the removal of the Royall family crest, our concerns regarding substantive institutional change at Harvard Law School have gone unaddressed. One of these concerns is the financial burden imposed on students in order to attend law school here. . . .

Harvard Law School should be committed to creating an environment that is inclusive of students of color and students from low-income backgrounds who want to study here.  Enough is enough; fees must fall.

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Obiter Dictum

• a judge’s incidental expression of opinion, not essential to the decision and not establishing precedent.

Lawyers are taught to distinguish the holding from the dictum, but we don’t do a particularly good job of it. Judges, who once limited their opinions to the essentials, now write at obscene length, because they too have discovered the joys of word processing, to express their every thought on an issue, their deepest views, despite there being neither need nor call for it.

As the standard example goes, the monumental decision in Brown v. Board of Education took twelve pages to express. The Fourth Circuit’s opinion in G.G. v. Gloucester School Board runs 69 pages. Its holding can be simply stated: The District Court failed to give proper deference to the Department of Education, Office of Civil Rights, interpretation of its regulations, so the case is remanded to the lower court for consideration under the proper standards.

In other words, the decision did little more than to tell the judge below to take a Mulligan under Auer v. Robbins: Continue reading →