The notion of dual sovereignty almost always comes up in a retributive way, as the feds jump in to rescue a botched state prosecution, circumventing double jeopardy and vindicating the public’s lust for vengeance.  Few people complain because the target of the second arrow is invariably someone publicly hated, and so we applaud the fact that they won’t “get away with it.” 

After all, since we all know they’re evil and deserve to be punished, why let a little thing like a state acquittal stand in the way of a mulligan.  Until first term Rhode Island Governor Lincoln Chafee decided that to say “no.”

The backstory is fairly straightforward, defendant Jason Wayne Pleau is accused of fatally shooting a gas station manager outside a bank in Woonsocket, RI, last September.  A basic murder case, the kind that states routinely handle. Pleau is already in prison doing 18 years for various parole and probation violations, and agreed to cop on the murder to life without parole.  Nothing unusual here.

Except that the United States Attorney for Rhode Island, Peter Neronha, thinks Pleau should be put to death for his crime, and so he put in the papers under the Interstate Agreement on Detainers, a mechanism that provides for one jurisdiction to hand over a body to another.  The plan was for the feds to prosecute him before Rhode Island could finish its prosecution.  They would give the body back eventually.  After it was cold.

The Governor did something that no one else, apparently, had ever before done. He said no.  Per the IAD, the request is sent to the governor, who signs his approval and the locals hand off the body to the feds.  Lincoln Chafee decided that he wasn’t going to sign.  He decided that Pleau, a Rhode Island residents, should be subject to punishment in the manner Rhode Island believed appropriate, and that didn’t include his execution. 

The feds were outraged that some punk governor of some state that could barely be seen on a map would have the temerity to say no. No?  No one says no to the United States of America.  Having been rebuffed on the detainer, they went back to the well for a Writ of Habeas Corpus Ad Prosequendum, which doesn’t require any signoff, but Chafee responded, “too late.” 

Inexplicably, the feds went to their own courts to compel Rhode Island to capitulate rather than carpet bomb Newport.  And surprisingly, the First Circuit refused to compel Rhode Island’s governor to bend to the will of the feds.

Via Howard Bashman, the  court held that the IAD expressly requires the approval of the sending state, Rhode Island, and that the governor, therefore, has the power to say no.  It as if a state is an actual entity, a real sovereign, in control of its own domain.  It’s as if a state is more than a cheering section for its local sports teams and a taxing authority.  Lincoln Chafee made the State of Rhode Island real.

The decision relies on the authority of the state under the IAD, noting that the feds, having chosen that mechanism first, can’t go back to the well and grab the body under an ad prosequendum writ.  The question was left unaddressed whether the State of Rhode Island could refuse to comply with such a writ, issued by a federal court, raising some really fun Supremacy Clause and federalism issues, which will have to wait for another day. 

The federal government tried one last ditch effort (carpet bombing still being off the table) to push the Circuit:

The United States insists that Governor Chafee’s objection to the transfer of Pleau on grounds of Rhode Island’s abhorrence of the death penalty is “not a valid basis” for refusing the request, and that allowing a governor to refuse an IAD request on public policy grounds “would be directly at odds with the IAD’s goal of ensuring fast and orderly transfers.” The United States cites no cases in support of this proposition, but rests its argument on the statutory text, which states that a requesting sovereign “shall be entitled to have a prisoner against whom he has lodged a detainer . . . made available.” 18 U.S.C. App. § 2, art. IV(a) (emphasis added).

The United States’ textual argument is unconvincing. It is true that Article IV(a) states that a requesting sovereign “shall be entitled” to have a prisoner made available to him after a detainer has been lodged. However, the United States neglects to mention that a few lines later, Article IV(a) explicitly qualifies this statement, and states that this is “provided . . . [t]hat there shall be a period of thirty days . . . within which period the Governor of the sending State may disapprove the request for temporary custody or availability.” 18 U.S.C. App. § 2, art. IV(a).

It is uncontroversial that a governor may block a prisoner’s transfer to a receiving state other than the United States, and we have already explained why Article IV(a) applies with equal force to the United States. As to the issue of timeliness, the IAD specifies a thirty-day time frame for a governor to decide whether or not to grant the request, and so long as a decision is rendered in that time frame, it is entirely unclear how it would matter to the speed of a transfer what reason a governor had for accepting or rejecting a transfer request.

We pause to note that the crimes Pleau is alleged to have committed — armed robbery and murder — are quintessential state crimes, and betray on their face no hint of any uniquely federal interest. See United States v. Jiménez-Torres, 435 F.3d 3, 14-15 (1st Cir. 2006) (Torruella, J., concurring) (objecting to unwarranted extension of federal criminal jurisdiction over traditionally state crimes). Moreover, given that Pleau has already agreed to plead guilty to state charges and accept a life sentence without the possibility of parole, it is frankly unclear what is to be gained from pursuing federal charges in this case, particularly in light of the truly extraordinary costs of capital litigation.

Sure, Rhode Island isn’t the biggest state.  True, it’s residents are disinclined to walk around in cowboy boots like Texans.  Yes, it’s governor graduated from effete Brown University, where recitation of poems is favored.  And yet, he demonstrated the guts to stand up to the demand of the federal government to hand over one of his citizens, a really bad one but still one of his, and refuse to be party to the machinery of death.

One life at a time.  It may not be much, but it’s better than one additional execution.

The  Economist posted a story about the hotel of the future, where every need was addressed in technological real time.

Specifically it looks at how a modern hotel might utilise social media to improve the service it offers customers.

For example:

7 AM PST: You hop on a flight from LA to New York. Before take-off, you tweet, “Headed to NYC. Looking 4ward to drink poolside @ThompsonLES.” When you land and turn your mobile on, you have a Twitter response from @ThompsonLES, which reads, “We look forward to having you. Shall we reserve you a lounge chair?”

And later on:

6 PM: When you arrive back in your room, you notice you have a message on your hotel iPad. You open it, and it takes you directly to the hotel’s Facebook videos, and in particular, a video illustrating the hotel spa’s offerings. Beneath the video is a “click to reserve spa treatment” button. You do. And before setting the iPad down, you use the hotel’s custom app to select and reserve a table at a recommended restaurant.

It’s all very clever technically, and doubtless responds to some guest needs, but I find this vision leaves me a bit cold.

For the writer, the problem was the elimination of human contact, where glowing lights forming letters and images was the closest one came to personal interaction.  Certainly something to feel a bit cold about.  But that hardly exhausts the problem.

In the first example, the hotel responds to its patron’s potential interest by offering a convenience directed toward his announced desires.  Very cool, and certainly welcome.

The second example, however, is disturbing.  You arrive at your room to see the message light flashing, and immediately check, worried that your child is lying in a pool of blood on the side of the road.  No, no, it’s just the hotel taking advantage of your concern to thrust its premium services at you, unsolicited and undesired. Sell. Upsell. Forget about the guests’ quiet enjoyment, and spam them with anything that can make the hotel a buck. 

Let’s assume that the hotel twits that it’s taken the liberty of reserving a table for you at its finest restaurant for that evening, and you are thrilled, since that was the plan and it saved you a call.  The miracle of social media, right?

When you arrive for dinner, however, there’s no reservation to be found, and every table is booked.  The maitre d’ asks who took your reservation and you point to your iPhone 37.  His wry smile brings chills. “I’m afraid that the reservation requires you to respond that you want it or it is automatically canceled,” he explains. Since you didn’t respond, you have no table.   

You are standing there, hungry and angry. “We apologize for the inconvenience,” the maitre d’ continues, “but there is nothing we can do.”

Personal communication, even between someone who cares and someone who is paid to pretend they care, involves a level of reality.  Whether the tone of voice, or the ability to pursue an issue to a depth that brings a human element to the communication, there is a level of connection that can’t be replicated on social media.  Especially when it’s human against enterprise. 

The latest trick in customer service is for the representative to say “this is Susie in Des Moines.”  You get a name and a place, to assure that you aren’t speaking to Susie in Bangalore or Peggy in Uzbekistan.  It’s meant to give you the impression that you’re dealing with someone who can fix things, help you.  It’s meant to show that you haven’t been shunted off to Peggy.

In speaking to Susie in Des Moines, you will find out pretty quickly whether Susie has the authority or inclination to do something, or is limited to uttering the words of a David Mamet script.  Susie is a person, and you can talk to her. It doesn’t mean that you will get any satisfaction or help, but at least you have the opportunity to engage, and leave the conversation knowing that there will, or won’t, be a resolution. 

Sure, she’ll end the conversation with the insipid “is there anything else I can do for you today?” ignoring that she would have to do something before she could do something else, but its the same white noise as “we apologize for your inconvenience” when they’ve poisoned you infant.

This may be cold consolation, but it far exceeds what social media has to offer.  Conversations go back and forth.  Social media allows a flow in one direction, whether to spam you with upsells and advertisements or to deluge you with apologies and nonresponsive responses to very real problems. 

Susie, the human being on the other end of the phone, may feel some desire to help someone who should rightfully be helped.  If her authority is too limited, she pays the human price of knowing, somewhere in her brain, that her days are dedicated to making other people miserable. This takes its toll on people, unless they’re a sociopath of the type who leaves callers to Suicide Hotline on hold while she finishes regaling her co-workers with the story of her last shopping venture.

Social media has no soul. Bother them too much and you disappear in the ether.  It’s not the social media couldn’t be wonderful, but that it won’t.  It may offer a change in the mechanics of communication, but it won’t give the person on the other end a soul.  And they will never have to hear the voice of the people they burn.

The word usually refers to weapons that cops carry “just in case.”  If they shoot someone and it turns out that the person wasn’t a threat, they just put a throwaway in his hands and, bingo, a righteous shoot.  The word could also refer to the human beings that former NYPD Det. Stephen Anderson testified about.  Throwaways.

Cooperating with the prosecution, Anderson explained the problem.

“Tavarez was … was worried about getting sent back [to patrol] and, you know, the supervisors getting on his case,” he recounted at the corruption trial of Brooklyn South narcotics Detective Jason Arbeeny.

“I had decided to give him [Tavarez] the drugs to help him out so that he could say he had a buy,” Anderson testified last week in Brooklyn Supreme Court.

He made clear he wasn’t about to pass off the two legit arrests he had made in the bar to Tavarez.

“As a detective, you still have a number to reach while you are in the narcotics division,” he said.

Work, work, work. When you work narcotics, you have to make busts or get busted. When there aren’t enough people to bust, you just find some throwaways. Anybody in a bad neighborhood will do.

Nathan Burney, who did time in the office of the citywide Special Narcotics Prosecutor, an office necessitated by the volume and fear of narcotics in New York City, before he came in from the cold explains what this mean to the throwaway.

Here’s what happens to you when narcotics officers arrest you for no good reason: You’re forcibly kidnapped, usually in public, in some of the most shaming circumstances imaginable. You’re hauled off in handcuffs, which fucking hurt. You’re fingerprinted, and a rap sheet is created, and unless you are very lucky the fact of this arrest will be part of your official record for the rest of your life. You’re charged with a crime, perhaps a felony.

To support the charge, officers like Anderson will provide some real drugs and say they found them on you. Maybe they’ll sit around and try to come up with an incriminating statement they’ll say you “blurted out” on the scene. Faced with overwhelming evidence, you may well take a plea just to avoid the near-certainty of prison. Your reputation is shot, your background check will kill most decent job opportunities, and you will be a convicted criminal for the rest of your life.

Because you’re not an addict eligible for a program, you’re more likely to do time. And now that the cops know you, and you’ve already got one arrest for this, you’re an easy mark — you’re all the more likely to get hassled and arrested again.

From the defense side, all of this was true. And more.  A nice guy, often named Jose, who worked in a crappy job to pay the rent and did his best to stay away from street corners were trouble often happened, found himself in the Kafkaesque situation of being taken off the street on his day off.  Nothing made any sense as he pondered for the next 28 hours what he was supposed to do. 

He and his family cobbled together money that should be used for the rent and to buy diapers for the baby to pay a lawyer.  It was all lies, he said.  But there was no DNA, no video, no witnesses to be found.  Just Jose’s word against the cop’s.  The cop had ribbons over his shield attesting to his bravery and honor. Jose had nothing.

The judge was told this was a garbage bust.  Some judges looked back with sad eyes, knowing there was nothing they could do. Most judges cared as little about the throwaways as the cops.  The first time out was usually probation, and nobody was foolish enough to turn it down.  If Jose was lucky, he never ran into a cop again.  He walked the other way when he saw one coming.  If he didn’t, he could be back.  The next time was state prison, as he was now a predicate felon. The law left no choice. 

From Burney:

This is nothing new. It was nothing new back in the ’90s when we were a prosecutor in the city’s Special Narcotics office. Near the end of each month, there would be a spike in arrests (usually simple buy-and-busts) near the end of each month. There were blocks where cops knew they could make these arrests without even trying — they called it “going to the well.”

And yet prosecutors kept prosecuting.  Judges kept judging.  And throwaways kept losing.  Even when there was evidence, witnesses that the cops were liars, some Special Narcotics prosecutors did everything in their power to protect the lying cops and prevent the evidence of their lies from coming out.  Bad, evil things. Anything to protect their darling cops.  I’ve got stories.

Cops love busts, as the overtime buys their houses in Queens and the south shore of Long Island, far away form anyone named Jose.

“Did you observe with some frequency this … practice which is taking someone who was seemingly not guilty of a crime and laying the drugs on them?” Justice Gustin Reichbach asked Anderson.

“Yes, multiple times,” he replied.

The judge pressed Anderson on whether he ever gave a thought to the damage he was inflicting on the innocent.

“It was something I was seeing a lot of, whether it was from supervisors or undercovers and even investigators,” he said.

“It’s almost like you have no emotion with it, that they attach the bodies to it, they’re going to be out of jail tomorrow anyway; nothing is going to happen to them anyway.”

Stephen Anderson said what everybody knew but nobody in an official capacity would admit.  Not a cop. Not a prosecutor. Not a judge.  Only defense lawyers and the throwaways talked about it, and nobody listens to us.  Believe us now?

Oral argument before the Supreme Court of the United States was held in Florence v. Board of Chosen Freeholders, and it didn’t go well.  The facts of Florence were a citizens’ nightmare, as related by the Third Circuit :

We begin with the facts surrounding the arrest and detention of lead Plaintiff Albert Florence. On March 3, 2005, a New Jersey state trooper stopped the car in which Florence was a passenger and arrested him based on an April 25, 2003 bench warrant from Essex County. The warrant charged Florence with a non-indictable variety of civil contempt. Though Florence protested the validity of the warrant by insisting he had already paid the fine on which it was based, he was arrested and taken to the Burlington County Jail (BCJ).

As I understood the oral argument, the Petitioner, represented by Tom Goldstein, took the view that the government can always watch arrestees from 10 feet away or a similar distance while the arrestees are showering before entering the jail. If the government wants to inspect the arrestees more closely, however, such as at a close arms-length distance, then reasonable suspicion is required. According to Goldstein, reasonable suspicion should always exist when the arrest is for a major offense. In contrast, case-by-case reasonable suspicion should be required for arrests for minor crimes. The Respondents, represented by Carter Phillips, took the view that no line drawing was required: As long as the inspection was only visual inspection of the outside of a person’s body, then the Fourth Amendment did not apply at all upon entering a prison.

My sense of the argument was that the Justices were pretty skeptical of engaging in the kind of line-drawing that the Petitioner advocated. It was just too hard to distinguish a 10-foot inspection from a 5-foot inspection from a 2-foot inspection, or to distinguish a major crime from a minor one. So I would guess the votes will be there for a conclusion that no line-drawing as required, as the government has the discretion to do a close visual inspection of all arrestees when they enter jail.

Aside: For those whose legal genius is limited to blog posts or comments, never having stood before a panel of judges whose purpose in life is to shred your best argument into a million pieces, that’s how lawyering happens.  Unlike the wails of misery when someone calls you stupid on the internet (oh, the horror), if you can’t take the scrutiny here, stay out of the courtroom and far away from clients. You can’t handle it.  In courtrooms, whether trial or appellate, you will be tested. That’s what we do.

To my mind, the case is really a follow-up to Atwater v. City of Lago Vista, 532 U.S. 318 (2001), in which the Court considered whether the Fourth Amendment allows arrests even for very minor offenses. In Atwater, the Court concluded that the Fourth Amendment does allow arrests even for very minor offenses — in that case, a seatbelt violation that led to a small fine. Florence requires the Court to confront a downstream implication of Atwater: If the Fourth Amendment allows the police to make the arrest for the very minor offense, and the arrestee is then brought to the jail, does the Fourth Amendment also allow the kind of invasive strip search that often occurs on entry into jail to ensure that no contraband is brought inside?

Whether it’s something special about the relationship between Ferraris and the federal government, who knows, but of all the cars, regardless of age or marque, it seems that Ferraris fare worse than any other. 

When word of the finding of the stolen 1995 Ferrari F50, one of 349 made, in Lexington, Kentucky reached the owner’s insurance carrier, it was cause to celebrate.  This was a $750,000 vehicle, and not an inexpensive payout to the Pennsylvania dealer from whom it was stolen.  And now it was back in safe hands, the hands of law enforcement and the federal government.  Safe, safe hands.

On August 12, 2008, the FBI stumbled upon the stolen car in Lexington, Kentucky during an investigation into a separate crime. The agency held the vehicle with permission from Motors while the thief was investigated. On May 27, 2009, FBI Special Agent Frederick C. Kingston got behind the wheel of the Ferrari with by Assistant US Attorney J. Hamilton Thompson in the passenger seat.

   “Just a few seconds after we left the parking lot, we went around a curve, and the rear of the car began sliding,” Thompson wrote in an email to a superior. “The agent tried to regain control, but the car fishtailed and slid sideways up onto the curb. The vehicle came to rest against a row of bushes and a small tree. Both myself and the agent exited of our own power.”

 “It is certainly unfortunate what befell MIC’s vehicle,” Judge Cohn ruled. “However, the vehicle was damaged while being detained by law enforcement officers within the meaning of Section 2680(c). As such, the government cannot be liable under the FTCA for what occurred. Accordingly, the government’s motion is granted. This case is dismissed.”

The car was totaled, and the DOJ refused to accept any responsibility, asserting sovereign immunity. The department stonewalled all requests from Motors seeking information regarding the incident. The Federal Tort Claims Act does allow for an individual to recover damages caused by the negligence of federal employees while acting within the scope of their employment. This law, however, includes a “detention-of-goods” exception, 28 US Code Section 2680(c), that absolves the government from claims “arising in respect of… the detention of any goods” by a law enforcement officer.

US District Court Judge Avern Cohn found that the exception covered the case at hand because the Ferrari was being detained by law enforcement.

You need it. You want it. Here it is, at the beautiful Cornell Club in Manhattan.

Social Media in the Workplace – Practical Solutions for Companies Panel Discussion and Networking Breakfast

  Tuesday, October 18, 2011 8:00-10:00a.m.

The Cornell Club, 6 East 44th Street, New York, NY

 

In a time of “Tweeting” about the significant and the mundane, impulsive Facebook posts, and employees divulging company information on LinkedIn, many businesses are trying to figure out how to deal with employee social media use.  Some companies embrace employee social media use for sales, recruitment, and exposure to clients and customers.  Other companies consider social media a drain on employee productivity and a source of potential liability.  The practical, human resources, and legal issues of social media in the workplace, including an international perspective, will be addressed by our panel: 
 

       George Freeman, Deputy General Counsel, The New York Times

       Ellen Dember, Executive Director of Human Resources, KPMG LLP

       Keith Corkan, Solicitor, Laytons (London)

       Joseph Cartafalsa, Attorney, Putney, Twombly, Hall & Hirson LLP

8:00 – 8:30 a.m. Breakfast

8:30 – 10:00 a.m. Presentation

 

Co-Sponsored by the ILR Alumni Association of Cornell University and the law firm of Putney Twombly.

Please register at http://www.ilr.cornell.edu/alumni/events/10182011-NYC-PanelandBreakfast.html

And there will be a special color commentator curmudgeon (Cornell ILR ’79) who, I promise, won’t disappoint.  Who?  Maybe this will give you a hint.



Or maybe I just love this song. Be there.

At Volokh Conspiracy, Eugene has given the bully pulpit to Clark Neily of the Institute for Justice, a libertarian “public interest” law firm.  The IJ has established the  Center for Judicial Engagement.

The courts were meant to be an integral part of keeping legislators and executive branch officials within the proper bounds of their authority.  But as the Institute for Justice has seen too often, judges are either unwilling or feel unable to enforce constitutional limits on the size and scope of government power.

Changing that is the mission of IJ’s Center for Judicial Engagement.  The Constitution was designed to be a bulwark of liberty against overreaching government, but it can only serve that vital function when judges actually enforce it.  Increasingly, however, courts are inclined to disregard constitutional limits on government power under the rubric of judicial minimalism or restraint, when often a more accurate term would be “judicial abdication.”  That must change.  The Center for Judicial Engagement will cut through unhelpful rhetoric about supposed judicial activism and simply ask whether judges are properly engaged in their role of interpreting and applying the Constitution.

Many readers will applaud this goal, reading into it what they believe to be the proper limits on governmental power.  Others will realize the sweetness of the words mask the potential deregulation of a wealth long-appreciated initiatives, leaving it to megacorporations to behave in a socially safe and acceptable fashion because market forces and enlightened self-interests compel it to do so. 

The IJ is engaged in legal action that many hear will vigorously applaud, such as challenges to the evil of civil forfeiture.  But as Neily discusses at VC, there are other issues high on its agenda.

Consider IJ’s ongoing challenge to Florida’s interior design licensing law. The state stipulated it has no evidence that the law benefits the public or that the unlicensed practice of interior design presents any bona fide public welfare concerns. The record makes clear that the only end plausibly advanced by the law is the suppression of competition at the behest of a rent-seeking interest group called the American Society of Interior Designers.

Whether licensure of interior designers strikes you as an evil sufficiently worthy of attention, the argument behind the challenge is one that is likely to pique interest.

The most obvious example is rational basis review, where courts apply a strong presumption of constitutionality that may only be overcome by “negativing” every conceivable justification for the challenged law. The government’s true objectives are irrelevant in rational basis cases, and “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).

If occupational freedom were considered a “fundamental” right, then the reviewing court would evaluate the government’s true objectives based on “actual, reliable evidence.” In rational basis cases, however, courts abandon that inquiry altogether and simply ask whether some conceivable justification may be hypothesized, no matter how clear the government’s actual — and in this case wholly illegitimate — objectives might be.

In a world of legal fictions, where courts strain, to the point of sophistry, to find some explanation that would uphold the constitutionality of legislation despite its “true” purpose, the rational basis test is a killer.  What many consider “rights” that fall a penumbra or two shy of fundamental are regulated, maybe even criminalized, and this gets the courts’ seal of approval because some cockamamie rationale that no one actually believes has anything whatsoever to do with either the purpose or effect, under the rational basis test.  Not only are such fictions allowed, but they are used without the slightest sense of shame to uphold legislative action.

And I would be remiss not to mention that such silly gymnastics find their way into rationales upholding restrictions on fundamental rights as well, but let’s not talk about the  bizarre paragraph in Heller that undermines everything else in Justice Scalia’s decision. If J-dog were alive, he’d ironically admonish me to give it time.

The presumption of constitutionality, predicated on the notion that legislative action reflects the will of the people, and that courts should show restraint in their rejection under constitutional grounds lest they substitute judicial sensibilities, makes challenges difficult.  And they should be difficult.  And to suggest otherwise smacks of a cry for judicial activism, to demand that judges toss laws that are stupid, counterproductive, or, we believe, just plain wrong.  But those aren’t the test.  The legislature is entitled to pass laws that are stupid.  They just can’t enact laws that are unconstitutional.

Yet one can’t help but appreciate the IJ position that the reluctance to question the constitutionality of laws has become so overwhelming, particularly given legislative activism that either regulates or criminalizes everything shy of passing gas in public, as to render judicial review as an historic relic.

The thrust of the post, that rational basis analysis as the test of constitutionality for less-than-fundamental rights, resonates.  Why, one has to ask, do we persist with judicial fictions, that any explanation no matter how false and absurd, is sufficient for a law to pass constitutional muster?  What’s so wrong with real?  What’s so bad about limiting legislative initiatives to their intended purpose?  He’s got a point.

It’s been a while since I’ve played the legal fashinista, but Justice Eduardo Pardo’s sign compels me to don the fedora of excellent taste again.  The sign says

Pull Up Pants

Urkel-like?  Await the flood (New Jersey pants version)? Nope.  The dreaded saggy pants, worn sufficiently low as to bare the colorful boxers worn casually (and thankfully) beneath.  Been there?  Sure, And been there again.  But Justice Padro, whose  career began at the Legal Aid Society, sits in a Manhattan courtroom, and Manhattan sits at the heart of American fashion.

It’s not my taste, saggy pants and exposed under-drawers.  No client of mine has or will ever step into a courtroom dressed in that fashion, regardless of their preference and desire for self-expression.  As part of the service I render as a legal fashionista,

I explain that there’s no benefit to be gained from using the courtroom as the runway, potentially annoying a judge who doesn’t appreciate couture choices, whether she says something or not. If you want to dress like a fool, do it elsewhere.  That also includes  the “gang rape” t-shirts (available on Amazon until it was noted that this was disgusting and outrageous, and removed).  Seriously bad choices for court attire.

Yet, this is a matter of choice and guidance.  It’s downright foolish to demonstrate disrespect to the person who will exercise discretion with your freedom.  Justice Padro, however, has put up a sign, turning choice into mandate.  From my old pal Laura Italiano at the New York Post :

Whenever I write something about the slackoisie, I’m told I’m just a mean, old curmudgeon engaging in gross generalizations to the detriment of wonderful millennials who are stuggling to take their rightful place in society after boomers screwed everything up.

Me and State Farm, apparently.

Yup.  Just a mean, old curmudgeon, cuz ain’t no such thing as slackoisie. 

For the benefit of bar association types and judges, let’s get something straight off the top.  The word “blog” is short for web log.  The word “blawg” is a bastardization of blog meaning a web log that focuses in law. It’s a bit cutesy, but it differentiates blogs about babies and kittens from blogs about the law.

If a writing is self-promotional, it is marketing and not a web log, blog or blawg (or any other variation on the theme).  Stop calling them all blogs. They’re not.  And when the decision is finally handed down in Horace Hunter’s case, it will not be a decision about blogs, but a decision about something he calls “news” on his website, and a “blog” when he argues his entitlement. It’s marketing. It’s no blog.

Via Carolyn Elefant,

As the saying goes, bad facts make bad law. And there’s going to be some very bad law for lawyer blogs indeed if Virginia small firm lawyer Horace Hunter loses his First Amendment challenge to the Virginia Bar’s attempt to require the firm to include certain disclaimers on its blog.

Don’t get me wrong – I’d love to see Hunter pull this one out.

Unfortunately, the law and facts are still on the Virginia Bar’s side. According to the Washington Post, the Virginia Bar alleges that Hunter violated Virginia’s ethics rules by failing to include on his blog a disclaimer stating that the results reported are specific to the unique facts of the case and do not guarantee favorable results in other future cases.

There was no claim of deception that caused the Virginia bar to go after Hunter, but only a routine audit.  By sheer kismet, he’s become the new first amendment hero, fighting the good fight against putting a disclaimer on his marketing that past results do not guarantee similar results in the future. 

But here, I don’t find this disclaimer – or at least some kind of caveat stating that the cases are “representative” matters – entirely unreasonable or unduly burdensome on the First Amendment.  Without any type of disclaimer specifying that a listed case is representative or not a guarantee of results, lawyers can “cherry-pick” the cases that they seek to list on their website giving the impression that the lawyer has only enjoyed a string of victories and is capable of winning any case that comes his way.

Or, lawyers can just lie about their results. Losses miraculously become wins, huge wins, if that’s how a lawyer chooses to present them. The reader wouldn’t have a clue.  And then there’s the problem with disclosure, as lawyers who write about themselves tend to forget that there’s another person’s life involved in their self-promotion.  From the Washington Post;

The charge, filed in March, also says Hunter blogged about information that would be “embarrassing” or “detrimental” to his clients, including using a pseudonym to discuss the case of a juvenile client. Hunter failed to show that he had obtained his clients’ consent to talk about the cases, the charge said. Hunter calls the claims “frivolous” and maintains that the matters discussed on his blog are public, and that he had the permission of the juvenile’s parents to talk about the case.

But it was good for Hunter and his marketing scheme, and Hunter, the person who benefitted from this conduct, didn’t see a problem.  Really, isn’t the person who’s gaining the self-promotional benefit in the best position to assess the harm done others?

It would be one thing if Horace Hunter fought for his free speech rights based upon the nature of his peculiar choice of content.  While neither Carolyn nor I see any real problem with a disclaimer when the content is all about past results (which are hopefully true, or that raises a separate issue of deceptiveness). And I have long had significant issues with any lawyer happy to sacrifice his client’s privilege and privacy in order to promote himself.  Horace Hunter’s approach to the internet has some very real issues, and the bar’s case against him hardly strikes me as overly burdensome.

But, that’s not what Hunter is fighting for.

Trouble is, Hunter has made this case about more than just website disclaimers, but about blogging.  Here, if the Virginia Bar finds that Hunter’s news feed qua blog is an advertisement and therefore requires disclaimers, mark my words, that decision will be construed broadly to encompass even legitimate blogs that discusses substantive legal issues. A blog that analyzes legal issues or summarizes recent cases is no more of an advertisement than a law review article or op-ed piece, neither of which must be tattooed with disclaimers.  To impose disclaimer requirements on blogs and not any other types of scholarly or informational legal resources diminishes their credibility and in so doing, violates the First Amendment.

That’s right, Horace Hunter is fighting for me, for my blawg, as if there is any similarity between what I do here and what he does.  Thanks, but no thanks.  This has nothing to do with my blawg, or blawging, or blogging.  Hunter is fighting for the right to market himself, and nothing more.  Calling his tripe a blog doesn’t make it so, but the issues has been framed, discussed and argued as one involving the whole of blogging.

Hard as it may be to imagine (kidding here, folks), those not engaged in the blawgosphere have little if any understanding of blawging.  We’re all tossed together as “those lawyers on the internet,” and the distinction between substantive commentary and self-aggrandizement gets lost in the ether. 

And many quasi-or faux-blawgers don’t help matters, as they are busy doing what Hunter is doing, promoting themselves while trying to appear as if their writings are legitimate thought. Without a real feel for the deal, you wouldn’t know that they’re self-promoters like Hunter, just more artful in their presentation.

Whose free speech rights rest in the hands of Hunter? Mine do.  So does Joseph Scura, a New Jersey lawyer who wrote his first blog post entitled “Two Years in Solo Practice.”  This violates every rule of social media marketing, since it’s absolutely critical for a lawyer with only two years under his belt to conceal that fact.  But Scura makes truth his headline.  And more:

People seem to like checklists on the internet, so if I had to distill what I’ve learned (still learning) into a few morsels (that I hope to remember)  they would be:

• Giving a crap goes a long way.  It’s not an outright substitute for experience but it can certainly close   the gap. 


• No matter how smart you are, you need someone to turn to for questions.  Luckily, CDLs are amongst the most generous and collegial in the profession.


•  It’s always about the client first.  Just do good work and your efforts will be rewarded. 


• Don’t expect a “thank you”, but if you get one, be grateful and you can be sure you earned it.


• Be wary of off the rack advice – (paraphrasing) Alan Dershowitz, Letters to a Young Lawyer

Better still, Scura’s post, which strikes me as more of an anthology written for his own benefit than anything a potential client would care about, talks about his path from n00b to second year:

This is by no means a how-to-guide to starting a practice.  This is the way I did it, and I’m not saying it’s the best way, or even a good way…just a way. 

What?  Is he not setting himself up as a legal rainmaker consultant, selling his magic sure-fire methods to the unwary?  Nope, just sound choices he’s giving away for free.  While my blawg will survive a bad decision in Horace Hunter’s case, it would be a terrible shame for Joseph Scura’s wonderful new blawg to suffer for it.