Author Archives: SHG

Is 4th Amendment Pragmatism The Answer?

Given my opposition to Orin Kerr’s “technology neutral approach” to the application of search and seizure law to technological advancement, largely due to my belief that the 4th Amendment is a bundle of exceptions in search of rule, and that Orin’s approach will leave us with no meaningful protection at all, the question remains: If not tech neutral, then what?

Dan Solove at Concurring Opinions has written an article urging an alternative, called Fourth Amendment Pragmatism , to be published in Boston College Law Review this year.  Here’s the abstract:

In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question – Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question – How should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: The Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.

Step one is the tossing out of Katz’s “reasonable expectation of privacy” foundation, which Dan calls a “fruitless game.”   He explains further in his introduction.

For a long time, I believed that with the appropriate understanding of privacy—one that is well-adapted to modern technology, nimble and nuanced, forward-looking and sophisticated—Fourth Amendment jurisprudence could be rehabilitated. I now realize I was wrong.

The entire debate over reasonable expectations of privacy is futile, for it is not focused on the right question. . . . We should sidestep the contentious debate about expectations of privacy—or about any other specific value as a trigger for Fourth Amendment protection. Instead, whenever a particular government information gathering activity creates problems of reasonable significance, the Fourth Amendment should require regulation and over-sight.

Having omitted a rather tedious analogy, it appears that Dan’s point is that expectation of privacy, “or about any other specific value as a trigger,” is subject to contentious debate.  While true, it doesn’t explain why it’s the wrong question.  Worse still, he merely swaps it out for a different phrase, Dan’s idea of a better trigger, “problems of reasonable significance.”

Application of the reasonable expectation of privacy test is increasingly difficult in a time of huge technological advancement.  The fact that ordinary people have little idea of what does on inside all the electronics that they use daily, where they think things like their emails, text messages and IMs are private, but the harsh reality is that they fall fairly clearly within one of the many exceptions, renders the test unworkable.  This gives rise to my problems with Orin’s approach, in that exceptions developed for bootleggers strain public expectations today.  Essentially, our subjective expectations may be just as strong, but it’s just not objectively reasonable in light of technology, which has the power to access every aspect of our lives without the physical intrusion that was needed in the past.

But then, substituting a test that has some modicum of meaning for a test that is wholly incomprehensible, doesn’t move us away from the problem.  What is meant by “problems of reasonable significance?”  Who knows?  To whom is the problem significant? There’s likely to be a wide divergence between the individual’s idea and the government’s. Dan supposed that it would be broad and inclusive, covering a large swathe of our life.  I suppose that’s largely up to whoever gets to define this totally amorphous phrase.  Given the history of both legislative and judicial definition of areas into which the police are given a free pass, Dan’s expectation may be a bit rosy.

It’s certainly encouraging for lawprofs like Dan to give some hard thought to alternative ways to frame 4th Amendment issues going forward, as we’re now on a trajectory that will provide no privacy whatsoever as we embrace each hour’s new technology, with all its shiny bells and whistles, without giving a second thought to how its use sends our private information to a computer somewhere in the bowels of the FBI building.  It won’t be easy, however, to come up with a paradigm that works.

We are currently trying to jam square pegs into round holes, with the closest viable analogy substituting for  legitimate protection of our privacy.  This results in applying the rubric despite the rationale having absolutely nothing to do with the purposes for which the police are relieved of the obligation to obtain a warrant before accessing our private information.  While the issue of the moment is GPS tracking devices placed on cars, we need to stop trying to fix the problems one device at a time as new technology is developing at such a rapid pace that each bit of tech will be like a horse and buggy by next week. 

We need a viable framework that protects us from intrusion.  Another approach, what Orin calls the Mosaic theory, and seems to me to be a variation on the “totality of the circumstances” approach that federal courts have long used to reach any result they want, seems to serve as a line in the sand beyond which even federal judges are just disgusted with the level of intrusion into personal privacy.  And yet, it’s essentially an abdication of the warrant clause until it reaches the point of unbearable disgust.  My hope is that we have a bit of protection before that point.

Dan Solove should be applauded for thinking outside the box, trying to resurrect the moribund concept of freedom from the government’s nose sticking into our undergarments (there’s an image for you), with his reasonable significance approach in lieu of a reasonable expectation of privacy.  While the latter has its issues, at least it’s a phrase that offers some clue as to what’s covered.  But that doesn’t mean there isn’t a better approach out there, and it’s encouraging that there are people out there trying to find it.

Kids

Just in case you thought that kids don’t think about the Bill of Rights anymore.  They do. Just differently.

(What?  You expected lolcats?)

A Skunk In The Ivory Tower

I first heard about Brent Newton’s article from Luke Gilman in a comment here, and thought so well of it that I kept the link despite my “no links in comments” policy.  This was a keeper.  It had a long title, Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy.

So who is this Brent Newton, who feels that he’s got the juice to stink up the academy?  Berman provides the first footnote to the article:

Deputy Staff Director, United States Sentencing Commission; Adjunct Professor of Law, Georgetown University Law Center and Washington College of Law, American University…. The opinions expressed here are my own and should not be attributed to any of them or to the United States Sentencing Commission.  My perspective on legal education has been informed by having taught 32 law school courses – both doctrinal courses and “practical” courses – as an adjunct professor or lecturer while working as a full-time practitioner (including as a public defender for sixteen years).

Sixteen years in the trenches as a public defender before going to the U.S. Sentencing Commission is a pretty impressive resume.  For a practitioner.  But an adjunct, even at Georgetown law?  Feh.  A person of dubious distinction in the Academy.  But having gotten his “rant” published, the “real” lawprofs are constrained to recognize it.  Hear that sound?  It’s the wagons circling.

Newton’s abstract is rather lengthy, but it beats the hell out of reading the whole law review article, and captures the idea.

In response to decades of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century. It will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively. This essay proposes significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.

This is nothing new to practitioners, and has been the subject of numerous posts around the blawgosphere.  But we’ve long been dismissed by the scholars as advocating turning law school into a “trade school” and ignoring higher order thinking and the philosophical considerations that distinguish law as a profession.  They scoff at us, stupid trench lawyers, who have to work for a living because we’re too dumb to think important thoughts like lawprofs.

Thankfully, Newton is a mere adjunct.  For those of you who don’t appreciate the significance of this, adjunct lawprofs are smarter than the average bear, but unworthy of tenure track.  They may wear Harris tweed, but their elbows will never be adorned with leather patches.  They are tolerated.

And so, the lowly adjunct must be taught a lesson.  Rick Garnet at PrawfsBlawg goes for the throat.

Critiques like this are nothing new, of course, and (just as “of course”) have some bite.  But, they can be (and I worry that Newton’s might be) overstated.  Sure, we all remember (or know!) legal scholars and law teachers who seem way-disconnected from the practice of law and who we cannot imagine actually advising a client, putting together a deal, or arguing a case.  But, the suggestion that — even at those awful, top-tier theoretician-factories that Newton has in his sights — faculty members who are hired not only to teach skills and doctrine but also to investigate and reflect on the history, animating principles, normative failings, etc., of our craft and tradition (our learned profession) “lack the skill set necessary to teach students how to become competent, ethical practitioners” seems too sweeping.  The suggestion reflects, I suspect, a narrower-than-mine view of what it means to be a “competent, ethical practitioner” — a real lawyer.

Since this is nothing new, Garnet digs out an old critique, it being unworthy of wasting time on novel thought.

In my own view, for what it’s worth, it would be very sad if the lesson that law schools took away from all this is that they should become more narrowly technical and practitioner-preparatory in their approach.  In my view, law school needs to be *more* interdisciplinary, and the study of law needs to be approached *more*  like a humane discipline, than they currently are.  The world does not need, really, blinkered-but-efficient-and-proficient technicians; it does need, though, lawyer-citizen-leaders who are well read, ethically sensitive, public minded, and theoretically sophisticated.  There are huge problems with the profession, I think, but the answer to those problems is not, it seems to me, for law schools to resign themselves to the relatively unambitious task of providing fodder for the current (or post-crash) law-firm machine; instead, we need to produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.

This sounds, I admit, abstract and Ivory-Tower-ish (almost a caricature of out-of-touch tenured academics’ self-important musings), even elitist.  I am uncomfortable with that.  To be clear, I think *practicing* law is (or, at least, should be) both “fun” and “useful” (it has certainly be fun for me!).  The disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy is, at best, off-putting.  My sense, though . . . is that the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for. 

No, I’ve got no clue what he’s actually say either, although it seems as if there’s something substantive to “the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for,” thus demanding that lawprofs to “produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.”

But if you want dismissive disdain, look to the comments to Garnet’s post.  From Brian Leitner :

 

The critique isn’t just overstated, it’s full of undocumented and baseless slander. Where are all those law professors who disparage practicing lawyers and judges?

And from Dave:

The idea is that law students should have a variety of different courses, some more practical and some more doctrinal, that contribute to a varied and rich experience of understanding the law. This is the antithesis of the notion that all law classes must be taught in the same way, and that either practitioners or theoreticians represent the sole acceptable model for a law professor.

Another major flaw of the article is its tendentious claim that adjuncts who are engaged in practice are better teachers than regular faculty. The evidence for this assertion is terrible for three reasons. First, it comes from only one law school (Houston), and there’s no reason to think that school is typical of all law schools. Second, perusal of the footnote shows that the difference may be trivial (.14 on a 5 point scale), especially because there’s no attempt to determine if it’s statistically significant. Third, and most important, there’s a real question whether student evals are a meaningful measure of quality teaching. Some studies have suggested that evals reflect cosmetic things like attractiveness rather than whether students actually learn. I[f] adjuncts bring a useful and important perspective to law education, but it’s inane to suggest that all adjuncts are systematically better than all regular faculty (and I think the reverse assertion would also be inane).

 

Then Ian Bartum.

 

Part of the difficulty I have with Newton’s piece (and others like it) is the seeming desire to conflate abstract and practical education, or at least to value the latter over the former. Both, in my opinion, are necessary parts of legal training: lawyers must be able to both write interrogatories AND think critically about the law and our social institutions. This is part of what separates lawyering from other trades. (And, not to belabor the point, but many law graduates will not spend their lives drafting pleadings. We also train statesmen–60% of the current senate and 3 of last 7 presidents–, judges, clerks, activists, academics, etc…)

The predicate for Newton’s article, that tenured lawprofs are obsessed with writing theoretical articles and have little or no practical experience, is utterly ignored by is detractors who attribute to themselves adequate, if not vast, practice experience and take no responsibility for law review articles like this serious doctrinal effort, Harry Potter and the Half-Crazed Bureaucracy

, 104 Mich. L.R. 1523.  I shutter to think of the richness of the law without this.

But if you think things look dark at PrawfsBlawg, it’s nothing compared to the sly Professor Bainbridge, who understands that the most effective way to ridicule and diminish an idea is to take it as one’s own, then twist it until it’s unrecognizable.  He begins by calling Newton’s article a “rant”, then goes on.

Maybe 20 years ago law schools valued things like high grades, law review membership, and prestigious clerkships. Not any more, however. As far as I can tell, what is valued these days are:

  • Ability to network with people you knew in graduate school that got hired last year
  • Having a PhD
  • Having multiple publications, even if they demonstrate the author’s utter lack of doctrinal knowledge or inability to do basic legal research
  • Knowing what Rawls (or Dworkin) would think of X
  • Being able to run linear regressions
  • Being able to run regressions about what Rawls would think about X

Not that any of this has a goddamn thing to do with the practice of law. Hence, while I disagree with the factual claim, it’s hard for me to disagree with the next part of Newton’s rant:

Could [a typical law school] professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation?

Of course not, Bainbridge argues, which is why law schools should go back to the old ways, hiring lawprofs based on “high grades, law review membership, and prestigious clerkships.”  He then closes with a move that blew my socks off:

PS: I don’t use rant pejoratively. A good rant is a thing of beauty.

Followed by a video of Howard Beale in Network, driven insane, screaming he’s mad as hell and not going to take it anymore. That Bainbridge is tricky character. 

Remarkably, not one lawprof squarely faces, no less addresses, the point, that law schools overvalue the theoretician for the purpose of promoting scholarship and undervalue the practitioner for the purpose of teaching students how to become lawyers.  The host of strawman arguments aside, not to mention disclaimers that while other law schools may be like that, my law school is wonderful, try to land a tenure-track job in a law school if you’ve got any hard practical experience under your belt and see the reception you get.  You’ll be warmly welcomed.  Like the village idiot.

A Friend In Need

It’s just like the old days of the practical blawgosphere, where somebody writes a post on a relatively inconsequential aspect of criminal defense and somebody else quibbles for kicks.  Such fun, and I want in.  Mark Bennett posts about how you never know who your real friends are until you need one, as opposed to the 600 “frends” one has one Facebook, most of whom you barely know and few of whom (if any) would life a finger to help you.

Truth be told, even most criminal defense lawyers don’t have the ethic, though the occupation selects for those who do: sticking with people even when their problems are entirely their dumbass fault is an important part of the job, and those who would do so for love of a friend are naturally willing to do so for a living.

Facebook devalues friendship by calling something that when it isn’t truly: six hundred frends, and if you’re extraordinarily lucky two or three friends.

Mark may have undershot the mark by limiting his point to Facebook.  What about Twitter?  Or any other social media, past or present, where people spend their time “authentically engaging” with people they don’t know while ignoring the real people around them?  These are, of course, “frends” of convenience, and hence not friends at all.

Over at Crime & Federalism , Mike takes up the issue.

Friendship requires elevating the other person – your friends.  When I have money, my friends have money.  It’s really that simple.  Friendship is a sort of voluntary socialism.  Of course there will always be the occasional mooch, but one can get an STD from having sex.  Does this mean you stop having sex  – or that you start being careful?  So, too, it is with friends.

Who are you a friend to?  If you wouldn’t come pick me up at 3 a.m. when my car broke down, you’re not my friend.  Why waste time and energy pretending we’re friends?  We’re not, and that’s cool, and friendship is so great that you should devote your time to someone who is actually a friend.

From this, Mike posits that our “friendship” issues stem not from who is a friend to us, but rather, to whom we’re friends.

We are not what we say or think, but are what we do.  We become what we do.  If we do good things for people, even if we begin as sons of bitches, we change.  This change leads to the Sun Effect : We become the type of person others are draw to.

One need not prove the cause to note the effect.  The person who is a friend to others has friends.

And so if it’s true that, “True friends are few and far between,” there is no mystery.

Friends are hard to find because you are not a friend.

In a vacuum, Mike’s view seems to carry the most theoretical weight, that if we’re good friends to others, they will return the favor.  Granted, it presents a chicken/egg dilemma, but that can be overcome by someone, anyone, starting somewhere by being a good friend and developing the desired effect.  Except, it doesn’t happen that way.

It will likely come as surprise to some readers, particularly those without a sense of humor or a great deal of life experience, that I’m a pretty good friend to others.  Despite my playing the curmudgeon and my refusal to coddle the needy and whiny, I’m usually there for people in need, real friends and even casual acquaintances.  Even those I only know from the internet.  It’s my nature to try to help, regardless of whether the problem is self-induced foolishness or bad luck.  I’m the guy you want standing behind you in a fight.  There are a good many of you out there who I’ve help over the years, and you know who you are. 

And in return, not much.  For some, it’s a matter of narcissism, where you “deserved” help and I did nothing more than gave you what the world owed you.  For others, it’s selfishness, that you are happy to take but disinclined to give. For a few, it’s low self-esteem, where you resented me for helping you (hey, you asked) and became angry with me for your sense of “debt” on your shoulder.  Sometimes it’s a combination of motives and issues, but the net result is the same.  Help someone and make an enemy for it.  Or at least not a friend.

By my highly unscientific calculations, the friend to friend ration is 10:1, with 90% of those you befriend either failing to return the friendship or actively disliking you for having done them a solid.  If you’re looking for a return on investment, being a good friend sucks.  If you help others because that’s just the way you roll, then it doesn’t matter.  You help others without any expectation of friendship in return, and your expectations are met.

But Mark’s post raises a more ominous specter, that those who look for friendship online, and who harbor the bizarre belief [h/t, ironically, @ValentiLaw] that their Facebook friends or Twitter followers are their real, true, honest-to-god buddies, are in for a rude awakening.  A friend on Twitter is a frendship quitter. 

When time comes to post bail, see how many of your followers show up with cash in hand.

It’s long been a truism that a person with two or three good friends is rich indeed.  If anything, the internet may not have enhanced our wealth, but taken from it.  With the time spent online worrying about how to spread our wit about at 140 characters at a time, chances are good that people have neglected their real-life friends for their virtual “frends” and end up with neither. 

Tea With A Side of Common Sense

He was sitting at the bar of the Fairmont Hotel.  He was drinking for diversion. He was thinking for himself.

It was pure kismet that I sat down next to him.  We had both just come from the Mall.  He from the Lincoln Memorial end and me from the Smithsonian Institution end.  I had no problem finding a parking place on the mall.  He found it difficult to park.  I joked with him that he parked on the wrong end.

It wasn’t until the day before that it dawned on me that the day I planned to visit the Smithsonian was the 47th anniversary of Dr. Martin Luther King’s “I”ve got a dream” speech.  It struck me as a bad idea, but it really didn’t turn out to be a problem at all.  There were a lot people walking around, mostly overweight, wearing t-shirts with similar themes about “honor” and funny camo hats with American flags sticking out of their heads like horns.  They were all white.

It struck me that it made little sense to wear a camouflage hat with flags stuck into them, as the flags defeated the point of the camo. 

When I talked to the guy at the bar, he explained that he was deeply frustrated with the demise of his lifestyle.  He loved the country, he told me, but not the government.  Aside from the fact that Obama and the Democrats were evil incarnate, many of his complaints are the same I write about, and other comment about, here.  He was an unremarkable looking man of a certain age.  About my age.  He was happy, polite and courteous.  He was civil and respectful.  He knew what was wrong, and he thought he knew how to fix it.

The answer was common sense.  Politicians were all in it for themselves, and were selling our legacy for votes to the great mass of people out there who wanted a free ride on the backs of hard working people.  He was suffering.  Money was tight, and people no longer respected the norms and mores by which he lived his life.  Why was he forced to live in some world that seems foreign to him.  What about his freedom to live his life?  What happened to his right to pursue happiness?

He had nothing against blacks, or Jews. He wasn’t too clear about Muslims, given what they did to this country, but it wasn’t a skin color thing.  If African Americans wanted to stand beside him and lock arms in the pursuit of a better America, he would be proud to have them.  It wasn’t his fault that they didn’t join in.  Some of his best friends were black, once.  There weren’t too many where he lived.

I like him. He was friendly and sincere.  I asked some nuanced questions about how it all fits together, how politicians function and navigate between different, conflicting interests.  He waved me off.  It wasn’t that complicated, or at least it didn’t have to be.  All they had to do was the right thing.  They just needed to use some common sense.

He told me that I was being fed misinformation, twisted stories about the country, the world, the tea party.  They were just regular folk trying to stand up for their life before it was completely lost.  It was happening, he explained.  Inch by inch, normal American life was being chipped away, and we couldn’t tell as it happened because the chips were so small.  But look back and you could see how we’ve slipped from a once honorable nation into the abyss. Our greatness was squandered.

He had a kid who was in the service.  His son was a Marine in Afghanistan on his third tour.  Because of this, he knew things that others didn’t.  He knew about the threat of terrorism.  He knew about honor and dedication to his country.  He knew about sacrifice.  He didn’t exactly say it, but it was clear that by having a son in harm’s way, he was entitled to a louder say than those who took from society without giving back.  He was more entitled to a say than I was.  His horse in the race was more important than mine.

I liked the guy.  He was like so many guys I’ve met in my life, at the store, in the courthouse, at classic car shows.  But for his t-shirt and the hat he had removed and placed next to his beer, he would have been pretty much any ordinary guy I’ve ever met in my life.  He believed, deeply, that the answer could be found in common sense.  He stood on the Mall in the very hot sun with a lot of other people who wore similar t-shirts and hats, and listened to Glen Beck and Sarah Palins, both of whom had common sense.

I was on the other end of the Mall, where there was no common sense or simple solutions.  He wore a “Hope” t-shirt.  I saw the Hope diamond.  We were very close, but couldn’t have been farther apart.  And still, he was a perfectly ordinary guy.

I picked a heck of a day to visit our Nation’s capital.

What a Boob

From killer prosecutor to criminal court judge to sex-crazed maniac, James Gibbons has taken an unusual career path.  Via the Daily News :

A cleavage-crazed criminal court judge – who fathered a son with a young Legal Aid lawyer – quit after officials found a massive porn stash on his work computer, sources said Thursday.

Disgraced Manhattan jurist James Gibbons, a whip-smart ex-prosecutor who once convicted rapists and killers, fired off a terse resignation letter last week after the nasty cache was uncovered.

“There was a lot of porn on his computer – all young women,” an investigator told the Daily News. “Lots of crotch and cleavage shots.”

Whip-smart?  Well that’s an interesting choice of words. 

There’s nothing wrong with a judge who, in his spare time, happens to enjoy looking at sexually provocative images.  They aren’t neutered before taking the bench.  But it’s a job that requires a bit of discretion, and one would expect them to exercise that discretion while using their court-provided computers. 

Consider being on trial before Gibbons and, as you rise to your feet to voice a critical objection, you see him staring intently at the computer before him on the bench.  “Objection, Your Honor!” 
Gibbons raised eyebrows with romance with Legal Aid lawyer Jeanne Emhoff.

Huh?

I said Objection.

What, I’m sorry, objection? Objection to what?

The question that was just asked, it was outrageous judge.  Totally outrageous!

What question?

Weren’t you listening judge?  I saw you staring at your computer.

Well, um, uh, humm, I missed it.  I was doing some, um, uh, research into a fascinating legal issue up here.

There was this little bit of drool coming from the side of your mouth, Your Honor.

Yeah, well, that happens when I read a particularly interesting decision. 

Oh.  I see.

Curious that it’s always the uptight looking guys who seem to get off on the kinky stuff, perhaps to compensate for a gap in their adolescence.  Of course, Elie Mystal at Above the Law thinks that there’s nothing wrong with Gibbons enjoying a bit of afternoon virtual delight under his robe, if only he was smart enough to keep the internal hard drive clean.

Sorry, I’m just not so quick to crucify a man for having porn on his computer. Maybe he should have to step down for being a freaking idiot. Why do people insist on keeping porn on their work computers? The external hard drive was invented for porn, much like the internet itself.

But aside from giant stupidity, I don’t have an inherent problem with a judge bringing some porn into his chambers. It’s better than hiring a prostitute, it’s better than sexually harassing counsel or criminal defendants, it’s better than cheating on your cancer stricken wife.

There are a whole host of things it’s better than, and yet that’s not exactly the criteria one expects a judge to fill.  Would it be so wrong to have higher aspirations for the judiciary, like to keep their porn at home?

I hate to be such a stick in the mud about such things, but I have this wild expectation that guys who assume the position of sitting in judgment of others, deciding their fate and tossing them in jail, might demonstrate the force of will to control their sexual urges long enough to perform their job woody-less.  Is that so wrong?

In preparation of this post, I went to the court’s website to get Judge Gibbons’ bio, and found that it had already been deleted.  He was disappeared awfully quick.  If only something more useful was accomplished by the system as quickly as they terminated his judicial existence.

But regardless, we know that he was a one-time “whip-smart” prosecutor, and that’s usually enough of a background to leave us with a sense of comfort.  After all, there are plenty of other one-time prosecutors who would like to wear a robe.  Now that there’s a seat empty on the bench, they have the chance to fill it.  I would just recommend they wipe it off first.  You never know how sticky it could be.

Another Mouth To Feed (Update)

If Millennials are called digital natives, then I’m a digital illegal immigrant undocumented alien.  While I may spend a few minutes on the computer most days, I’m constrained to learn everything from scratch. Often twice.  Sometimes more.  This must be obvious to all the virtual gurus around, as they constantly send me emails offering me their services.

Then a new offer came in, not the typical coyote solicitation that a guy like me would expect, but an entirely different opportunity.

I would be interested in managing a link exchange campaign for your company as an independant contracter.

As your “link marketing manager”, I can manage your link exchange campaign to insure that, over time, you will have a consistent reliable and steady stream of qualified, interested and motivated prospects viewing your web site. Web traffic is a numbers game, and the more web sites that link to you, the more traffic you’ll get on a referral basis. 

Like any blawger, I get a ton of people asking for “link exchanges,” suggesting that their website offering guaranteed penis enlargement and mine are simpatico and share a dedicated audience.  They might have a point, but it always struck me as a bit unseemly and definitely not the sort of thing people wanted to be constantly reminded about. 

With all these incoming offers, it never dawned on me that I might need someone to manage my link exchange campaign.  Heck, I didn’t even realize that I needed a campaign.  And he was willing to do so as an Independent contractor!  Woo hoo!  No health insurance.  That’s a relief.

Every day, a new job comes into existence online, positions we didn’t even know we needed and certainly never existed the day before.  It’s a miracle, some out of work, unqualified person who is the laughingstock of all his friends for lack of a BMW and an iPad, creating a niche that no one ever knew existed.  Fill the niche, get rich.  It’s the American way.

It seems like only yesterday that there was no such thing as Twitter.  Now we not only have Twitter, but Twitter experts who, for a fee, will teach people to be twits.  These are highly trained professionals who spent hours honing their craft so they can solicit major law firms and teach them how to effectively engage with authenticity using hashtags.  There’s no finer way to develop that mixed martial arts law practice and promote it to those desperate corporate counsel, frustrated by their inability to locate just the right lawyer.

As for me, I’m pretty satisfied with my general policy of not exchanging links with the plethora of websites who have much to offer me.  It’s okay if I’m just a piker in the digital world, limiting visitors here to those who have an interest in the things I tend to write about.  Sure, it’s not much, but the potentially vast popularity with readers seeking viagra might overwhelm me.

But don’t let that stop you.  There are many new folks around the blawgosphere who will do pretty much anything to grab some readers and expand their tribe and influence.  From twitter followers by the tried and true follow-back of anyone with a twitter name of Britney to spam back-link comments, they are welcoming to all and invite eyeballs without discrimination.  If this is what you’re up for, go for it.  In fact, it may prove to be a huge boon in the opening of a new niche of law, the representation of people with small penises.  You can be High Priest of the small penis blawgosphere if you play your cards right.

And don’t feel badly that you’re desperate to make a splash in the blawgosphere.  After all, what’s the point of all this if not to manufacture popularity and community, from whom you can nab a buck or two.  There can’t be any other legitimate reason to type out a few words if not to make a living, and it’s so much easier to fabricate an internet persona that makes other people, similarly desperate for attention and business, love you than it is to be a great lawyer.  That takes work.  More than a few hours.  Heck, who wants to spend all that time when you can become the king of all twitter experts by next Tuesday?

Hey, you never know.

Sorry, Mike Ciaccio, but I’m going to pass on your very kind offer to be my personal link exchange manager.  Even as an independent contractor.  I’m just not ready for all the eyeballs and small penises.

Update:  I inquired of Mikey C about the charges for his services as my personal link exchange manager.  Here’s what he replied:

Thank you for your interest in my link exchange and FaceBook Marketing Service. 

I am an independent contractor with over 25  years of sales and marketing experience. In addition, I have had an internet marketing company since 1996.
I charge $450.00 per month for my service, and there is no obligation after the first month on your part.
*** Here’s my basic plan of action. Every day, monday thru friday,complete the following…
1. spider the internet (daily) to find web sites that are related to you but not your competitors.
2. harvest the email addresses (daily) from these sites.
3. send emails to them, telling them we’d like to link to them, and to link back to us with a specific code.
4. create html pages (weekly), that contain links and descriptions of these sites that reciprocate and upload them to your server or I can email them to you.
***I try to accomplish the following marketing objectives…
1. Create a resource that is so valuable that it will “in itself” keep visitors coming back to your web site over and over.
2. Create a resource that is “HIGHLY targeted to your market” so that the referral traffic from these links will produce highly qualified,
interested, and motivated prospective buyers.
3. Improve your Google rankings for your best keywords and phrases by having other relevant web sites link to you using the keywords in hypertext..

Mike then provides a list of his clients, my personal fav being the one selling crossbows.  It must be hard to rank high when selling crossbows.  Nonetheless, I still demur, meaning that Mike remains wide open to turn you into the High Priest of small penises.

Blago’s Holdout Speaks

From the Chicago Trib :

But the 67-year-old grandmother said she also knew that as a juror in Rod Blagojevich’s corruption trial, she had a responsibility to follow her conscience and the law. She said she did not believe he or his brother committed a crime with their actions to fill Barack Obama’s Senate seat, so she would not find them guilty despite what other jurors, prosecutors and, perhaps, the general public wanted.

If it was going to be 11-1, so be it.

That’s what JoAnn Chiakulas had to say about it.

“I thought he was narcissistic,” she said. “I thought he was all over the place. I thought he was just rambling.”

It also concerned Chiakulas that some key witnesses who testified against Blagojevich had cut deals with prosecutors before testifying, she said.

“Some people in (the jury room) only saw black and white,” Chiakulas said. “I think I saw, in the transcripts and in the testimony, shades of gray. To me, that means reasonable doubt.”

No highly sophisticated ambivalence based upon mixed messages from the Supreme Court.  Just plain, old vanilla reasonable doubt.  And it’s not easy to hold a contrary position from the majority.

But standing her ground in the jury room was not easy. Other jurors have acknowledged pressuring Chiakulas to change her vote on the Senate seat, with one man going so far as to switch chairs so he could “look her in the eyes” during deliberations. She was yelled at and told she wasn’t being logical, jurors said.

One person asked the judge for a copy of the juror’s oath, implying that Chiakulas wasn’t fulfilling her obligation. Chiakulas and at least two other female jurors said they felt belittled and questioned whether their gender had something to do with their treatment.

Some of the other jurors were not pleased with her, suggesting that she was not deliberating in good faith because she didn’t bend to the will of the majority.  And still she held firm.  But it wasn’t because of Blago.

While Chiakulas shunned the media spotlight in the days after the verdict, the loquacious Blagojevich appeared on national television to thank her for her resolve and proclaim that she has reaffirmed his faith in God.

When asked about his comments, Chiakulas frowned and slightly shook her head.

“I didn’t do it for him,” she said.

In my post on the hung jury/ mistrial, I suggested that the holdout might try to create a rationale that justified her decision in light of post hoc criticism and analysis.   It doesn’t appear to have happened, as JoAnn Chiakulas offers neither apology nor excuse for her decision.  That’s just what she believed.  Amen.

Schools Have Rules, Bully Edition (Update)

Conformity is undervalued, at least in the Godley Independent School District (Home of the Wildcats!).  Via Popehat, 12-year-old Chris McGregor learned this lesson when he was banned from the classroom for being, well, different.

But on the first day of class, school officials confronted him. The dress code requires boys’ hair to be above the shoulders.

“We try to be fair,” said Godley ISD Superintendent Paul Smithson. “However, there are standards in life, and Godley ISD’s chosen these standards for the dress.”

Chris has long hair, like the Brazilian soccer players he hopes to join someday.  It’s not that the Superintendent Paul Smithson suffers from hair envy, but that he’s concerned for Chris’ welfare. 

“We try to be fair,” said Godley ISD Superintendent Paul Smithson. “However, there are standards in life, and Godley ISD’s chosen these standards for the dress.”

No word on boxers versus briefs as yet, always a controversial issue in the gym locker room and on prom night.  But the hair question isn’t a matter of arbitrary rules, but one of school safety.  And as Superintendent Smithson is well aware, it’s his responsibility to make sure that no student is harmed under his watch.

But Smithson said the hair rule protects students and reflects community standards. “There’s a reason in Texas they’re called ‘independent’ school districts,” he explained. “Bullying’s a big thing, and we want to make sure everyone’s dressed appropriately, someone doesn’t bring attention to themselves so that someone says something to them, and all of a sudden we have a problem.”

Demonstrating why he was chosen to be the Big Guy at Godley, Smithson’s got his finger on the pulse of pre-teen bullying: It’s the victims asking for it.  Bringing attention to oneself is like begging for a good whupping, Texas style.  Smithson isn’t about to allow one of those trouble-making victims to cause a bullying problem in his district.

What’s particularly curious is that someone who has reached the academic pinnacle of school district superintendent can publicly express a rationale based on the statement, “there’s a reason in Texas they’re called ‘independent school districts.”  Is there a reason in Texas they’re called “bullies”?  Is there a connection, any connection, between the celebration of independence and the elevation of conformity?  I could go on, but since it’s unlikely that Smithson will stop by to answer, it seems rather pointless.

As long as we’re on the subject of effectively addressing bullying, there’s one point that remains to be addressed.  Chris McGregor, being a mere 12 years of age, is required to attend school, though I note that it’s a good idea as well.  That said, he may well be subject to the Godley Independent School District version of “asking for it.” but it’s not like he’s got a lot of options.  Since the district has chosen to place the onus on the non-conformist, that long hair hippie freak, rather than on the bully, the only choice is for Chris to cut his hair, grow twelve inches and be capable of beating the living crap out of any potential bully or suffer the indignity of in-school suspension.

Contrast these circumstances with the workplace bullying hand-wringers, who are adults, capable of choosing their place of employment and, provided they don’t have overly “refined” sensibilities, purportedly mature enough to withstand the withering scrutiny of their non-conformist choices.  Does it not give rise to some wonderment that there is a group dedicated to criminalizing people who hurt one’s feelings in the workplace while children are subject to official punishment by school administrators?  Will these emotionally overwrought crusaders stand up for Chris McGregor?

Update:  I just got off the phone with Chris’ father, who is looking for a lawyer to vindicate Chris’ right to a free appropriate public education and the right to express himself by his hairstyle without being left to pick between a haircut and in-school suspension, which means that he won’t be given an adequate education or allowed to participate as a normal middle schooler.  If there are any educational or civil rights lawyers in the Forth Worth area interested in taking on this case, please let me know and I’ll put you in touch with the McGregors.