The concept behind the National Labor Relations Board’s protection of concerted activity was premised on the days of sweatshops, robber barons and Pinkertons firing into the crowds of the powerless, downtrodden employees who wanted only the ability to join together so they could amass sufficient clout to negotiate with management.  As a wobbly once asked, is that so terrible?

But then, no one could foresee when Taft met Hartley that our society would mature to the point of a victimocracy, where the law would become the bludgeon of choice for all favored rights and entitlements.  At Overlawyered, Walter Olson points out the clash:

* “During a meeting about commissions, minimum wage, and employee breaks [at a Yuma, Ariz. car dealership], an employee lost his temper, angrily calling his supervisors words such as [obscenities omitted]. He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14), the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.” [Jon Hyman, Ohio Employer’s Law Blog; Brennan Bolt, Labor Relations Today] Continue reading →

Every once in a while, someone gets what they believe to be a brilliant idea, and by adding two plus two, ends up with 37.  If you squint your eyes, sing “lalala” really loud and argue the point by stringing as many unrelated words together as possible, it begins to make sense.  Except it doesn’t. It’s wrong. Dead wrong.

Via Radley Balko, the Massachusetts ACLU’s effort to get information under the Freedom of Information Act about SWAT teams was rebuffed under a novel, if bizarre, rationale:

As part of the American Civil Liberties Union’s recent report on police militarization, the Massachusetts chapter of the organization sent open records requests to SWAT teams across that state. It received an interesting response.

As it turns out, a number of SWAT teams in the Bay State are operated by what are called law enforcement councils, or LECs. These LECs are funded by several police agencies in a given geographic area and overseen by an executive board, which is usually made up of police chiefs from member police departments. Continue reading →

If you slept through yesterday, then there’s big news. The United States Supreme Court issued its opinion in Riley v. Caifornia and United States v. Wurie.  Within minutes, there was more commentary on the Riley (as it will be called, despite the fact that Wurie would have made the case name far more enjoyable and available for lulz), as Chief Justice John Roberts’ majority opinion, with a concurrence by Sam Alito, is one of those line-by-line stunners.

As descriptions and commentary already abound as to the opinion itself, with Orin Kerr and Josh Blackman doing yeoman’s work, together with about a million others, lawyers, lawprofs, non-lawyers, flounder fishermen, chiming in, there is no point in repeating what others have already said.

But there remains a critical point to be made about the Riley opinion, reflecting the concern raised in anticipation of the Court’s decision.

At the top level, the two sides take categorical approaches to what they ask the Supreme Court to hold.  One might suspect that the Court will split the difference, rejecting the government’s search ‘em all position, but crafting some sort of exception.  There will no doubt be a great deal of discussion about this going forward. Continue reading →

When Oregon District Court Judge Anna Brown held that the right to international flight was a protected liberty interest, it was a pretty big deal.  It dispelled with the best argument the government had for one of its worst-kept secrets, the no-fly list: International flight is a mere convenience.

After all, you could always swim the ocean, or take a slow boat to China. There may be a right to travel, but not on an airplane.  At least not if your name included a Mohammed.  And that might be enough to make the list.  While there were putative criteria requiring reasonable suspicion together with reasonable inferences, there was no one checking to make sure any name placed on the list met that criteria.

Maybe an agent put a name in the computer and hit the wrong button. Maybe the person was Muslim and prayed at a mosque (“associated with known terrorists”) or was a United States Marine (“trained in the use of military-grade weapons”).  Or maybe you pissed off some low-level federal bureaucrat who decided to show you who was boss. Whatever. Since you had no right to fly, placement on the list was no deprivation.

Judge Brown called bullshit. Continue reading →

Summertime, and the blogging is easy. Especially when someone with a point of view like Carolyn Elefant, promoting the interest of new solos, hands over the keys to My Shingle to guest bloggers, whether to put content on the page or give new people the chance to offer new ideas.  But that doesn’t mean that such a well-established soapbox should be used to promote ideas that are just plain bad.

When Carolyn put out the call for guest bloggers, Jackson, Wyoming criminal defense lawyer Alex Freeburg answered with this post:

I am a criminal defense attorney and I don’t charge a trial fee. Most attorneys in my area do. The standard procedure is that the client pays a flat fee, and if the case goes beyond the pretrial conference, then the client pays a second flat fee for the privilege of having their attorney try the case.

Well, yeah.  Most criminal defense lawyers everywhere do this.  But Freeburg’s point is that he doesn’t, and you shouldn’t either. Continue reading →

When the Oscar-nominated film, “Capturing the Friedmans,” was released in 2003, it provided as much hope as a convicted child molester could ask for.  The witch hunt days of the 1980s were past, and perhaps people were ready to recognize that police-manipulated child testimony and a coerced plea at a time of hysteria could put an innocent father and son in prison.

By this time, the son, Jesse, was out  of prison. His father, Arnold, had taken his own life in 1995 while still inside.  Yet, Jesse remained branded as a level 3 sex offender and the Friedman family tainted with horrific crimes.  While the documentary may have raised consciousness as to their potential innocence, vindication had yet to be achieved. A habeas on appeal before the Second Circuit failed to obtain reversal, but it did push the Nassau County prosecutor to review the conviction:

“While the law may require us to deny relief in this case,” the panel of judges wrote, “it does not compel us to do so without voicing some concern regarding the process by which the petitioner’s conviction was obtained.” Continue reading →

A call came from the father of a young man whose son was friends with mine.  It seems the young woman his son dated explained to her subsequent suitor that the reason they broke up was that he was “emotionally and physically abusive” toward her.  The new suitor, as one might expect, spread the word, and it quickly caught the attention of the dorm advisor.

As it turned out, the young woman’s story fell apart almost immediately.  She conceded that it wasn’t “really” true, but rather seemed like a good explanation at the time, both to justify the break up and make her appear more sympathetic to her new suitor.  She never thought it would spread to official channels. When it did, she showed the integrity to admit her lie.  No student was harmed in the making of this story.

But the father asked me, as a lawyer, what his son could do to protect himself from such accusations, recognizing that it could have devastated his son’s life had the young woman not owned up to her “white lie,” as she saw it.  I had nothing to offer. Anyone can say anything about anyone, and there is no neutral witness in the bedroom. Continue reading →

My twit, upon learning that the Standing Committee of Correspondents of the Senate Press Gallery rejected Tom Goldstein’s appeal for credentials for SCOTUSBlog summed it up.

Others have addressed the details.  Eugene Volokh writes that the committee blew it, most notably in its failure to adapt its criteria to the budding reality that its definitions of worthiness for press credentials excludes those with the greatest subject matter expertise. Continue reading →

Jesse Herald may not be the guy you want to have pick up the kids from school, but then, that wouldn’t make him particularly unique.  What does is the plea deal he cut for a child endangerment charge that left him doing five years less than he might otherwise.  Via Komo News:

A Virginia man who has fathered children with several women has agreed to get a vasectomy to knock up to five years off his prison term in a child endangerment case that has evoked the country’s dark history of forced sterilization.

None of the charges against Jessie Lee Herald, 27, involved a sexual offense. Shenandoah County assistant prosecutor Ilona White said her chief motive in making the extraordinarily unusual offer was keeping Herald from fathering more than the seven children he has by at least six women.

You may be wondering what Herald’s fathering seven children by six women has to do with his crime. Continue reading →

When Josh Blackman noted the article in Vanderbilt Law Review, he felt it necessary to say that Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals wasn’t trolling.  Given his background and position, I daresay Josh is right.  Judge Wilkinson believes what he writes when he defends the criminal justice system:

As a judge with faith in that system, I am dismayed by the relentless insistence that we have it all wrong. Of course the system, like all human institutions, has its share of flaws. But the attacks have overshadowed what is good about the system and crowded out more measured calls for reform. The critics claim that major aspects of American criminal justice work to the detriment of defendants, when actually the reverse is often true. It is time for a more balanced view of our criminal process, which in fact gets a lot of things right.

My own reaction to the critics is one of gratitude for their contributions but dismay that they have allowed the pursuit of perfection in criminal justice to become the enemy of the good. Much about American criminal justice is indeed good. The system provides considerable protections for the accused and sets proper limits on the brutality and deceit that human beings can inflict upon each other.

The meme that perfection is the enemy of the good has its place.  It works well for toasters and roofing tiles that look like they’re slate, but really not.  But not only does its applicability to the criminal justice system not fit well, but it takes for granted that the system is good as it now stands.  That’s not how Judge Wilkinson sees it. Continue reading →