The old KitchenAid refrigerator went on the fritz while I was in Reno in the beginning of July.  Dr. SJ didn’t want to tell me at first, knowing that I would rail about the shelf life of appliances, and called a repairman to fix it in the hope that I would never know. 

For a $69 fee to show up, he told her it was broken and to get a new fridge.  It was 13 years old, well past the useful life of a refrigerator these days.  The words “consumer” and “durable,” he suggested, should no longer be used in the same sentence.

When I returned, we went fridge shopping.  Due to a particularly stupid move on my part when I had my kitchen restored years ago, the space in my cabinets within which the fridge was to fit was 42 inches, making it something of an oddball.  The options were limited, and as it turned out, guess what brand made a refrigerator to fit?  Of course, KitchenAid.

It wasn’t an inexpensive refrigerator.  I asked the woman from Plesser’s Appliances why this built-in refrigerator should cost four times what a normal refrigerator costs.  Did it refrigerate my food better?  Hah, she laughed. I laughed. I knew I was screwed.  I just didn’t know why yet.

When the new KitchenAid refrigerator arrived, it was a monumental pain to get into the house.  But the nice fellows who installed it worked very hard, and managed to do the job.  I gave them a $50 tip, as they seemed like such nice young men.  They thanked me and left, with the admonition that it would take about 24 hours to settle down to the job of refrigerating.

A couple hours later, I noticed the top of the fridge, where the compressor sat, was burning hot, far too hot to touch.  This didn’t seem right, but I was told it would take 24 hours for the fridge to get to normal, so I resolved to wait.  The next day, a few things became very clear.  The top was still burning hot, as was the mullion between the freezer and refrigerator compartments, the refrigerator was cool at 44 degrees, but not a proper 37, and the freezer was varying between excessive freezing and not cold enough. 

I called Plesser’s, the store from which I purchased the fridge, but nobody answered the phone and I wanted an answer rather than to leave a message.  So I called KitchenAid customer support, thinking that someone there could tell me whether this was a problem (as in causing my house to burn down) or just some sort of strange acclimation period.  The girl at the KitchenAid support line had no clue, but immediately arranged for a technician to come.  This was on a Friday, and the tech would come the following Monday between 8 am and 5 pm.  I asked her if my house would burn down in the interim, and she told me she didn’t think so. 

The tech came and told me, “uh oh, this isn’t supposed to happen.”  He explained that the fridge needed a control board, but that KitchenAid would only authorize a “thermistor” because they don’t provide expensive parts until after a cheaper part is tried and fails.  So I got hold of a woman at Plesser’s (after circumventing the “leave a message” at its customer support extension) and made clear that I when I paid for a brand-new refrigerator, I agreed to pay the price, but not make myself available for however many days the KitchenAid gods demanded. 

The woman got back to me after speaking with her “factory rep,” telling me they would overnight the needed control panel.  The next day, the thermistor arrived instead, assuring that it would take at least three days of my life, minimum, for the fix, assuming that the control board would in fact fix my defective refrigerator.  

Mind you, I made clear to the Plesser’s gal that I did not purchase a defective refrigerator, and did not accept the defective refrigerator delivered as satisfying their end of the deal.  She couldn’t grasp the concept.  “The refridgerator is under the manufacturer’s warranty,” she explained officially.  There was no room in her understanding for the idea that they first had to deliver a brand new, non-defective refridgerator.

Long story short, neither the thermistor nor control boardt fixed the problems.  I spoke with the tech, a very nice guy, but he was fresh out of fixes.  It’s not that he wasn’t happy to help, no matter how many days of my life were needed for a highly paid tech to stare at the refrigerator and turn my brand new machine into a refurbished model, but that he had no clue what part to replace next.  I told Charlie the tech guy that I liked him very much, but really couldn’t dedicate the rest of my life to hanging out with him in my kitchen. 

As an aside, the techs no longer provide customers with a receipt for repair, doing everything on a laptop computer.  I called Metro Factory service to get copies of the  tech’s repair tickets, but they were never sent.  As if they had an idea that this was going to be a problem, and they weren’t going to bite the KitchenAid hand that feeds them.  After all, the only people who benefit from failure are the repair people, and why do anything to upset either their benefactors or their great gig?

The lines were drawn when I received a call from the KitchenAid factory rep, Kaneta, who informed me that she had solved the problem:  the refrigerator was fine; there was nothing to fix.  The problem, she explained, wasn’t with the refrigerator at all, but that the ambient temperature of my house didn’t suit the needs of the refrigerator.  If I wanted the refrigerator to work properly, all I needed to do was change my home.  You can’t make this stuff up.

Then came the email from Plesser’s:

Our rep at Kitchenaid has informed me that she spoke with you in regards to the issues you are having with your Kitchenaid refrigerator.  Based on the information you gave her along with the service reports supplied by Metro Factory service, she determined that there is nothing wrong with the refrigerator at this time.  She noted that it is normal for the compressor and other components to get hot to the touch when running.  She also stated that the freezer temperature is affected by the temperature of the home.  With this, she concluded that Kitchenaid cannot exchange your unit.  I am very sorry for any inconvenience this may have caused.

The irony is that Plesser’s did nothing more than sell what KitchenAid built, though the price for making a profit is the responsibility of curing a defective appliance.  But Plesser’s wasn’t going to take a hit, and if KitchenAid said the unit worked fine, then there was nothing more than could do.  So what if the temp in the fridge compartment was at 44 degrees, when the New York State Health Department says 40 is highest it should be for safe food.  Can we blame the fridge for not being a, well, fridge?

Plesser’s didn’t seem to get the idea that here I was, with a defective but very expensive refrigerator sitting in my kitchen that failed to do the basic and clear job one demands of a refrigerator.  I sought only one thing, that the defective refrigerator delivered be replaced by one that wasn’t defective.  And if they refused to do so, did they suspect I would shrug and spend the next decade staring at a defective refrigerator?

And you wonder why silly cases end up in court?  But then, I’m a lawyer and the option of suing is no big deal.  For those who aren’t lawyers, have paid a ridiculous amount for a refrigerator, been constrained to suffer days of their lives lost and speaking to a grocery clerk like Kaneta and ending up being told to live with a defective fridge, the idea of having to sue isn’t a great resolution.

There are commercials on television for KitchenAid products that show their wonders and the company’s warm and fuzzy love of the nice folks who buy their products.  Maybe if they spent less on branding and used the money to deliver a product that worked?

Via Grits for Breakfast, it looks like Tulsa, Oklahoma has some problems.

Brandon McFadden, 34, detailed for prosecutors his criminal activity, mostly involving Officer Jeff Henderson but including Officers Frank Khalil and Sean Larkin. He also said that Henderson made up information to obtain search warrants.

McFadden stole drugs, money, used a straw “informant” to lie on search warrant applications.  He was, in short, a criminal with the power of the Bureau of Alcohol, Tobacco and Firearms behind him.  ATF has always held a special please in my heart, as I’ve never had a defendant arrested by ATF who didn’t appear for arraignment beaten.  And I never had a magistrate who didn’t accept the agents excuse that they were just protecting themselves when the defendant’s face attacked their guns, or the asphalt, or some similarly hard surface.

But McFadden, working with the Tulsa Police, had an “excuse.”

“It cost me everything,” he said of his criminal activity. “It didn’t happen overnight. I can tell you that. It was a gradual thing. One bad decision led to another, and I ended up in a situation completely over my head.

“At first, it was peer pressure in accepting the money the first time. From there, it turned into greed. And for a time, that’s the thing to do because that is what all these officers were doing, and I didn’t see a way out,” McFadden said.

He said he had tried to tell his supervisors about corrupt police activity but was “shut down pretty quickly.”

No, it’s not much of an excuse, and in small respects, doesn’t differ from the way many slide down into a life of crime, but they don’t teach agents how to make up excuses for crime at the academy, just how to justify a search and beating.  Of course, McFadden is completely full of it.  His supervisors “shut down” his stories of police corruption?  Did he not know how to find the number for the FBI?  Or DOJ inspector general in Washington?  Or any one of a dozen other places he could have gone to purge himself of his guilt and loathing?  Or maybe he’s just making it up.  Maybe he’s still just making up stories, this time to make himself seem less of a turd.

It cost him everything?  How sad.  What did it cost the people he hurt or falsely imprisoned. What about the people he beat when they wouldn’t give up the money he wanted to steal?

It was peer pressure? Ah, yes.  The bain of teenagers everywhere.  All the other cops are corrupt, so what else could I do?

There is a fundamental difference between some ordinary joe on the street engaging in crime and a law enforcement agent do something similar.  So much faith is placed in the hands of these human being that we hand them a gun and shield, and create a legal sphere around them that allows them to engage in a huge realm of conduct that would put any mere mortal in prison for life.  More than this, their word is beyond reproach, the system trusting them, defaulting to accepting their integrity unless we have a videotape and a few eyewitness priests saying otherwise.  The harm done by a beating is to one man.  The harm done by a lie renders the system a farce.

While working with Henderson, McFadden said he was told about informant Rochelle Martin, known as “O-girl” or “Shell.” Prosecutors have said that Henderson obtained search warrants with bogus information attributed to Martin.

“I learned (Henderson) was using her to sell drugs he obtained from search warrants,” he testified. “He would use her as a throw-down name for search warrants. … I knew they were close friends and allies. It was a loyalty deal. If needed, he could get her to do what was needed.”

McFadden testified that Henderson talked about using dead informants on search warrant affidavits so that if questions arose about the validity of the information, the informant could not be produced.

How crazy would it be if it turned out that federal agents, knowing that whatever they claims would be blindly accepted by an issuing magistrate, just made up wild stories, complete lies, and everybody from the U.S. Attorney to the District Court judge just ate it up.  Not a soul in the government’s employ could even imagine that the story was a wholesale fabrication, and certainly there was no argument to be offered against what this honored and trusted federal agent had to say. 

And if we can believe anything this mutt says, corruption is pervasive in Tulsa.  And if it’s pervasive in Tulsa, what makes you think it doesn’t exist anywhere else? 

But federal agents are above corruption.  They’re above greed.  They would never lie because they are all honorable men who would never dirty their shield and betray their trusted brothers.  Except McFadden, the only agents who isn’t special. 

The Democrats are unprincipled, unfocused and spineless.

The Republicans are unprincipled, focused and Machiavellian.

The Tea Party is principled, focused and cluelessly simplistic.

Outlier ideologies may have their points, but offer no panacea.  Religious doctrine hasn’t worked for churches, no less secular governance.

It’s a truism that we get the government we deserve.  We are not exceptional.

This is not going to end well.

The Trial Warrior, Nino Pribetic, unique among Canadian blawgers (eh?) in his criticism of self-aggrandizement and the adoration of technology as the weapon of choice for deception, raised the specter of the ghost.  He provides a summary of the current state of ghostwriting on the internet, offering the example of Janet Ellen Raasch.

If you don’t have any professional or ethical concerns with legal  ghostwriting or ghostblawging and are too busy to spend 15 minutes of your precious time to write your own original posts, then I suppose you have already consulted with Janet Ellen Raasch at Constant Content.  According to the About Page:

About

A constant stream of good content – with your name on it and appearing in skillfully targeted electronic and print media – is one of the most effective ways to enhance your reputation as a professional — and get new business.

Janet Ellen Raasch is an experienced independent writer who helps professional service providers reach — and persuade — their ideal clients through creation of by-lined content for the Internet, and copy for traditional print media.

In particular, Raasch produces content and copy for lawyers, law firms, consultants to the legal industry and legal organizations (including ABA, CBA, LMA and ALA). Because she has been an in-house legal marketing director as well as a consultant, her content and copy is written with your unique marketing agenda in mind. She is one of the best-known independent writers in this market segment.

Janet Ellen Raasch is an accomplished journalist who has written and ghostwritten more than 1,000 articles for electronic and print publication (see “writing samples”). In addition, she has written and ghostwritten more than a dozen books and numerous white papers (see “writing samples”). She has created keyword-rich content for more than a dozen Web sites.

Wow! Over 1,000 ghostwritten articles. It seems to me that ghostwriting and ghostblawging are symptomatic of what Scott Greenfield has referred to as  a ‘race-to-the-bottom’ in the legal profession.

This made me wonder whether we’re point the fickle finger of shame at the wrong party?  Underlying the concern Nino’s expresses, and which I and others join him in when decrying the race to the bottom, there are two discrete groups involved.  On the one hand, there are the marketers, the social media gurus, the techno cheerleaders, the ghostwriters, all the various players who have become part of the cottage industry to “teach” lawyers how to gain overnight wealth and prestige on the internet, at the cost of a few thousand dollars and their integrity.

On the other hand, there are the lawyers who turn to these people to make them rich and famous.

For quite a while, I’ve had unpleasant thoughts about the former group, enticing lawyers with their empty rhetoric and sweet jargon to come to the dark side.  They are the sirens of the internet, calling to lawyers to steer their practices to the rocks.  As much as we debunk their empty promises, and reveal them as failures to amass wealth and prestige for their own account, so how can you expect them to teach you to do what they’ve never done, lawyers are still drawn to them.

But what do they do wrong?  Lawyers are hungry and desperate, seemingly incapable of getting clients on their own and clueless about how to spread the word that they are experienced, aggressive and caring, just like every other hungry lawyer.  There is a need.  Needs want to be filled.  Is it wrong to fill it?

That those who seek to make their fortune by sucking the blood of hungry lawyers and urging them to walk the boulevard in hot pants offer an unsavory alternative to the time-tested method of hard work and integrity (or as a judge recently told me, caring) is nothing more than salesmanship.  Marketers gonna market.

What about the responsibility of lawyers to not play the fool?  As lawyers, we are supposed to have the capacity to parse words for meaning.  Shouldn’t this skill enable us to read the silly language of marketers, the stringing together of words that don’t connect, the use of nouns as verbs and adjectives that mean nothing, and realize that they say nothing?  Sure, “new and improved” worked for years selling laundry detergent.  Calling soap by its chemical name made it exciting and new.  But we’ve gotten wise to the ways of the market, right?

It often seems that there’s a dichotomy to be drawn, between the experienced lawyers, the big firms, the people who have no excuse whatsoever for being led like lambs to the slaughter, for falling prey to the siren’s song, and those who are still young and naive.  The newbies enter this suddenly jobless world determined not to shame their mothers and be that one in a hundred thousand million success story.  These are the overachievers, the ones who will not sit on the couch in the basement whining about the misery of becoming a lawyer.  They will win.

But how?

Along with the sadness of their circumstances, they are the digital natives for whom technology and the internet provide all answers.  They used wikipedia to write all their papers, even though they googled more legitimate sources to put in the end notes.  The truth is, they know that every answer can be found online, and they think us old-timers are so technically incompetent that we don’t know how they manage to be so brilliant.

And the truth is they’re right.  It’s all here.  The drawback is that the truth is hidden among the weeds, the lies, the nonsense and the craziness.  It’s here, but they have to find it.  They have to be able to figure out what is real and what is not.  Adding to the problem is that the real stuff tends to be much harder to digest and spit out, while the scams are sweet and easy.  Worse still, the real presents itself in unpleasant ways, while the scams are warm and loving, embracing all who stumble upon them in the warm glow of love.  That, my friends, is good marketing.

Guys like Nino put their butts on the line to save the young lawyers from themselves, as the harm they can do in the early, naive years of their practice will surely haunt them as they mature.  At the same time, they call out the marketers, exposing them as today’s version of the ad-men who came up with new and improved laundry detergent, though new meant a smaller box and improved referred to the company’s profits.

But we bought the detergent.  And I’m told that clients hire the brand new lawyers who are “experienced, aggressive and caring.”  And nobody seems to care that they’re selling and buying lies as long as it works.

Texas has a barratry problem.  Not that it’s alone, but its problem is sufficiently troubling that it’s trying to do something about it.  For those unaware, barratry is, inter alia, the solicitation of legal representation, often referred to as ambulance chasing. 

Mark Bennett, no fan of barratry, notes a pending change in Texas law that creates a civil cause of action for barratry by a person solicited, who did not succumb to the lure, which provides for damages:

(1) a penalty in the amount of $10,000; (2) actual damages caused by the prohibited conduct; and (3) reasonable and necessary attorney’s fees.

The actual damages caused would be de minimus, if anything, but the penalty of $10,000 plus attorney’s fees is some serious money.

Walter Olson wrote about a major league fax spammer could be bankrupted by a $400 million class action under a class action by the imposition of a $500 penalty per fax (which could potentially be trebled, I might add).  Again, the actual damages might be the electric, piece of paper and opportunity cost of thirty seconds of fax time.

The forfeiture of assets, home, bank account, car, is characterized as civil.  So is the incarceration of sex offenders who have completed their sentence but are deemed too dangerous to be let out.  The inclusion of a name on a registry, thus assuring that a person carries the stigma of perpetual hatred plus the inability to live or work like a normal person, is civil.  Banishment from the land based upon the conviction of an aggravated felony is civil. 

The distinction is that punishments, ranging from fines to loss of property and rights to imprisonment, by being characterized by legislators as “civil” and by the courts’ willing acquiescence in this scheme, have created a secondary criminal law, often enforced privately or by alternative government agencies, that evade the protections afforded those facing criminal sanctions.  No lawyer.  The burden of proof falls from beyond a reasonable doubt to as low as probable cause in some cases.  No right to confront witnesses, and the thinnest of due process.

Bennett characterizes this as “overcivilization.”

Where overcriminalization is characterized by draconian penalties for easy-to-prove technical violations of a sort that is traditionally civil, overcivilization is characterized by relaxed rules for exacting penalties for offenses that are traditionally criminal.

In some respects, this presents a greater systemic problem than overcriminalization, which (just to be clear) goes far beyond the mere draconian penalties for hypertechnical violations, but extends to criminalizing a mindlessly broad swathe of otherwise innocent conduct in order to “fix” a specific but extremely rare problem by laws that have far-ranging unintended consequences.

What’s curious about the phenomenon of overcivilization is that it involves people who society loves to hate, such as ambulance chasing lawyers or junk faxers.  There will be no groundswell of either support or sympathy for such types, and most of us would be all too happy to be first on line to give them a good, hard smack.  We don’t care for the things they do.

But this isn’t about liking them, or approving of their conduct.  It’s about the abuse of the “legal fiction” of calling something “civil” to circumvent the bundle of rights that is encompassed in a criminal prosecution.  If the government wants to punish conduct it deems bad, we can debate whether it’s bad enough to be worthy of criminalization, or whether the law is overbroad or unnecessary, but at least those accused and prosecuted are assured of certain rights.  Not those who are subject to criminal punishment, but whose wrongs are called civil.

The courts are at the forefront of this scheme, willingly relying on the legislative sham of allowing the prosecution to be conducted privately, or such legal fiction as in rem forfeitures, where the property (rather than the property owner) offends the sovereign.  Years ago, there was a popular maxim that “the law abhors a forfeiture.” 

Today, the law loves a forfeiture, and enables it in a process that not only facilitates it in a way that essentially precludes opposition, but does so in a circular action, depriving a person of the assets needed to defend his property (and often his freedom, as they tend to happen in conjunction with a criminal proceeding), and then justifying the deprivation by the post hoc forfeiture and conviction.  You see, he was guilty, so the government was right to first seize his assets and deny him the ability to defend, as proved by the fact that he was later convicted.  A sweet circle.

This could all be remedied in a snap, by distinguishing criminal from civil based upon the nature of the penalty/damages imposed.  Very simply, a criminal sanction is one that results in a fine/penalty unrelated to actual damage suffered, imprisonment, banishment or forfeiture, the same punishments imposed for the conviction for a crime.

Significantly, the legitimacy of the imposition of these sanctions is based upon the application of the legitimate sentencing principles rather than the anger and payback felt by jurors or the gut feeling of a judge.  Imagine, for the sake of making a point by a ridiculously extreme example, that the first instance of barratry resulted in a $10,000 fine, but failed to make it’s point and the perpetrator continued to solicit clients.  A second suit was shrugged off as well, with another $10,000 paid by the laughing lawyer. 

What if the Texas law provided as a recourse for the third time a lawyer was found to have engaged in barratry a “civil execution.”  That’s right, put the sucker to death, as he clearly hasn’t learned his lesson and, well, this is Texas, where life is cheap and barbecue is a religion.  It’s completely absurd, right?  But as Bennett notes:

Barratry may be a special case: those who commit it often have more assets than the average criminal, and they must commit it in the view of at least one non-party (the solicited person).

Since the whole point of the law is to put a stop to barratry, and if the lesser sanctions don’t do the trick, then why not go all in?  After all, it’s only a civil execution, and nobody really likes these guys anyway.

I’ve been called prolific for posting as much as I do, with people telling me that I write more than they have time to read.  Yet I get a seemingly unending stream of emails from people who are putative bloggers telling me that they want to write, but can’t seem to find anything to write about. 

Are you nuts?

Essentially every day, I leave at least a half dozen posts on the table.  Between the law and the world, there is no end of stories, issues, concerns that pique my interest.  Cognito ergo blawg, baby.  Do these things not cause you to think?  Are your synapses not firing? 

The corollary is that someone else, occasionally me, has already written about a case or subject, and there’s nothing left to say.  I call bullshit.  It’s unlikely that anyone agrees with me about everything, if indeed they agree with me about much of anything.  I hear all the time that I’m wrong, or worse.  There’s plenty to say, a never-ending stream of things to say.

The problem isn’t that there is nothing to write about, so stop kidding yourself and fabricating a justification for your failure to sit down at a keyboard and post.  Oh no, the problem isn’t lack of meat.  It’s lack of will.

Granted, I probably type faster than most of you, which allows me to crank out posts pretty quickly.  But it’s not finger speed that prompts me to write.  It’s that the world is filled with things happening the give rise to thoughts the want to come out.  If you have no thoughts that demand expression, then you have no business blogging.  Contrary to those who promote blogging for purpose other than the compulsion to say something, there’s little worse than a bunch of words on a screen that demonstrate the absence of thought.  If anything, the point learned from such posts is that the writer is either brain dead or gutless, neither of which is a particularly good message.

For those who have no thoughts floating about their head, there’s nothing I can offer to help.  When there’s nothing happening, it’s a good time to step away from the keyboard and enjoy the morning cartoons or perhaps a fine GMA interview asking how the parents of a raped and murdered child feel about it.

But I suspect most of you have thoughts, probably lots of them.  The problem isn’t that your you’re thick as a brick, but that you’re afraid of saying something that might be construed as having an opinion.  You want universal approval and validation, but fear there’s someone out there who might disagree with you.  You want people to think you’re brilliant, but fear someone out there will tell you you’re wrong.  You want people to hire you, but fear someone will read your opinion and proclaim, “I would never retain a lawyer who thinks that.”  You may be sitting in front of a keyboard, but your psyche is quivering in a corner, scared to death that you will be revealed as a fool.

Grow a pair.  Take a chance. Stand for something.

Even if it turns out you are stupid, or crazy, or have ideas contrary to what thoughtful people think, the alternative to taking a chance is to be one of the walking dead.  Consider all the people who spend their days alone in their rooms thinking to themselves that someone is wrong on the internet, in court, in life, but never having the guts to write a blog post saying so.  They don’t exist.  Do you exist?

I read other blawgs.  I read media stories.  I see that the many people I follow on twitter are interested in.  I see what I’m interested in.  And by the end of the day, I typically find myself with a list of things I have thoughts about.  Because I do my writing in the early mornings, a particularly hot, controversial issue that arises at the start of the work day will be the subject of a hundred blawg posts before I get a chance to type a word.  So what? 

It’s a big internet.  There’s enough bandwidth for one more post.  And if everyone is played out on a subject, they won’t read it.  The world will not come to an end.  No blawger can make others care what he writes, or force them to read it.  If that’s your worry, then you’re missing the point of this exercise.  Write what moves you, and others will read it if they want, or not. You can’t control anyone else. You aren’t responsible for anyone else. But you are responsible for you.

Stop saying that there’s nothing to write.  If you don’t want to write, don’t write.  If you have no thoughts, don’t write.  If you wet your pants just thinking that someone may call you a mean name for what you think, don’t write.  But there is so much to write about that I could sit at a computer for hours and keep pecking away. 

Let’s be real and stop blaming the world for your inability to put post to screen. If anything, there’s way too much to write about.  But if you don’t have the brains or guts to do it, then turn on the TV and enjoy your Cheetos.  The blawgosphere isn’t the right place for you.


And for those of you who think that blawging is a really great way to brand yourself, here’s the best lesson I can offer.

Now that everything’s changed, and the war against terrorism demands that all our nastiness falls under the doctrine of state secrets (for our own good), the nature of litigation is taking a turn as well.  As the 9th Circuit prepares to hear argument in Jewel v. National Security Agency, the government is making sure that the judges are good boys and don’t spill any beans.  From Politico :

On Wednesday, Justice Department Attorney H. Thomas Byron sent the court a letter (posted here) essentially warning the judges that since the argument is taking place in a courtroom open to the public the court should be careful not to discuss any national security secrets during the session.

“All classified information has been provided to the Court with the understanding that the secrecy of this information will be properly protected,” Byron said. “We are prepared to argue this case publicly, in an open courtroom, without referring to any classified information….If the Court has questions about the classified information in the record, we are prepared to address those questions in an appropriate secure environment with only the judges, cleared court personnel, and the attorneys for the government present, to ensure appropriate safeguards against disclosure.”

Wait, you say.  What about the plaintiff’s lawyers being able to offer argument, part of that whole “due process” thing they keep talking about in the Constitution?  Heh.  Don’t get your panties in a twist, as it’s not like the plaintiff’s lawyers were allowed to see the government’s secret brief anyway.  That was for judge’s eyes only.  

The Justice Department filed a classified brief in the case, as well as declarations that are not public and which plaintiffs’ lawyers have not seen. The parties challenging the surveillance objected to the government’s classified brief, but on Thursday the panel assigned to the case ruled, 2-1, that the secret brief would be accepted. 

Even if the court was to close the courtroom and hold argument in the back room star chamber, it’s not like the other side would have a clue what they were talking about.  They can’t. It’s secret.  The judges get it, at least two out of the three, that they must protect our country against terrorism by concealing the government’s wrongs lest the terrorists know that we tap the phones of Americans without warrants.  Oh crap, I just gave it away.  Strike that. You never read it here.  I never wrote it. It never happened.

But if you think this is bad, it’s better than what the government has argued in other cases, where they refuse to let the court in on the secret because federal judges can’t be trusted.  Ironically, they may not get much of a fight on that point.

The case relates to former President Bush’s allowing the tapping of phones and interception of emails to protect us from the red scare terrorist threat.

The lawsuits argue that the NSA’s efforts to monitor e-mails and telephone calls in the U.S. violate the Fourth Amendment despite legislation Congress passed in 2008—with then-Sen. Barack Obama’s vote—that sought to legalize a program President George W. Bush initiated without Congressional authority after the 9/11 attacks.

Not even the secret FISA courts were fast enough or trustworthy enough to get the job done, so the government just did what it had to do in this decade of crisis to save us.  Even now, it’s a big secret that they ignored the 4th amendment and searched and seized at will.  And all you whiners who would deny the government it’s weapons in the war against terrorism ought to consider its effectiveness. You’re still alive, right?  That’s because of the swift and decisive action on the part of our government to tap into anything they wanted.  Prove me wrong.

But how is the court, or the plaintiff’s counsel, supposed to flesh out the arguments and issues in the case when the government won’t let the other side see its secrets, and commands the judge’s to keep their yaps shut at oral argument?  Well, they can’t.  They can argue the points that the government allowed them to argue, and the judges can ask whatever questions don’t trample on the government’s right to keep their bad stuff secret.  And apparently, this is good with the judges.

Perhaps I’m just an old cynic, unappreciative of the efforts my government has made to protect me from terrorists, even if it meant bending breaking the rules.  After all, few know better than me that 9/11 happened and that thousands were slaughtered in acts of gruesome terror.

Nah. The old joke, I’m from the government, trust me, is still just a joke. There’s no adversary system when the government can conceal its brief from the other side, or tell the judges what they may not ask.  That the judges are good with this, taking their marching orders from the Department of Justice, isn’t going to instill faith in the integrity of the system, but make clear that we’re only as honorable as the government and its enablers will allow.  And that’s not good enough.

When I  first wrote of lawprof Lawrence Connell’s becoming the target of ridiculous hysteria at Widener Law School because of examples used in teaching criminal law, the silliness appeared confined to a few misguided students who were offended by the common employment of the dean as the victim of nefarious crimes.  Just some dopey, entitled teacups flexing their muscle. 

As things wound out, with Connell being put through some very real paces in vindicating himself and his practice, far beyond rational expectations, one thing became increasingly clear.  Whoever was pulling the strings at Widener was nuts.

While lawyers were busily lawyering, a sea change in attitude and mission flowed into the administration of law schools.  Some eschewed the  dirty notion of teaching students how to practice law. Some  eschewed principle despite their  flowery mission of “empower[ing] students and alumni as they explore and create careers inspired by passion and rooted in their faith and values….so that they aspire to greatness and flourish with confidence as servant leaders and ethical professionals,” and pay their tuition bills.

But no law school to date has gone as far as Windener Law School.  David Bernstein at Volokh Conspiracy explains.

The saga of Dean Ammons vendetta against Professor Lawrence Connell, revolving around trumped up charges of harassment and discrimination, gets more and more absurd. Having been almost entirely vindicated by a faculty committee, with the only remaining “charge” that he dared to rebut false accusations against himself publicly, Dean Ammons has recommended that Connell be suspended for a year without pay and be forced to undergo a psychiatric evaluation. Widener’s administration, apparently oblivious to the long-term damage this is doing to the law school’s and university’s reputation, agreed. I hope Connell sues, and I hope he wins his lawsuit, and wins big. Meanwhile, if any of our readers are considering attending Widener, I recommend looking elsewhere–anywhere else. If Connell can be abused in this way, so can you. H/T Instapundit.

As has already been made clear, the basic concepts of how due process and burden of proof clash with the pedagogical process when they fail to produce the results that conform with children’s notion of the correct outcome.  But at Widener, it’s no longer about some teacup students who take umbrage with a lawprof whose examples fail to conform with their vision of political correctness.  Oh, if only it was that simple.

Dean Linda Ammons will not be denied.  Nor murdered, whether by ax, gun or strangulation.  So what if the faculty committee “adjudicating” his grievous wrongs says nothing bad happened here.  And yes, he is guilty of publicly proclaiming that he did nothing wrong, which flies in the face of two new-fangled academic rules, that no one publicly embarrass the school by telling the truth and no one undermine the presumption of guilt. 

The guardians of high-minded principle, our law schools, seem to be struggling just a bit in teaching them, adhering to them, even recognizing them, when they get in the way of punishing the people who piss them off.

Ammons not only wants Connell suspended for a year, but wants him sent to her re-education camp where he’ll learn to love Ammons’ Little Red Book.

Without naming names, because they fear the wrath of the orthodoxy if it came out that they have any unpleasant thoughts, some of my lawprof friends (yes, I have some lawprof friends) tell me that I have no idea how bad the situation in law schools has become. They parse every word they say for fear that it will upset some delicate teacup’s politically correct sensibility, and they will be publicly burned at the stake for not adhering to the dogma.  The Spanish Inquisition pales in comparison.

Students have become little automatons, spewing Kumbaya, demanding respect and crying whenever there’s no one to suckle them.  Administrations and professors who embrace the perfect world, where never is heard a discouraging word that doesn’t conform to the idealists catechism.  There can be no suggestion that any student is unworthy or, oh my, wrong. That would hurt someone’s feelings, and conflict with the Academy’s mission to make the stupidest feel brilliant.

I see it here, whenever a law student or young lawyer feels empowered to tell experienced lawyers how the world should be and how we’ve done everything wrong.  The days of children being seen but not heard are gone.  And the days of a law professor doing his job in a way that makes a teacup tinkle demands psychological treatment.

Bernstein, in an update to his post, does the unthinkable:

UPDATE: I had agreed to participate in a Widener-sponsored project after the committee report was released, which I thought would be the end of the matter. I’ve now sent an email to my contact at Widener, withdrawing. I can’t in good conscience have my reputation associated in any way with Widener Law School.

I would hope that all people of integrity decide to take a stand here, not to lend support to this insanity by contributing, associating, or approving of Widener’s, Ammons’ or the tide of catering to the politically correct sensibilities of the teacups and their enablers.  While there will be some who agree with, and applaud, this insanity, the rest of us need to put on our big boy pants and stand up to this absurdity. 

The Academy is out of control, and those in it who disagree have been hiding in the corner for fear that they will be exposed as heretics who sing Kumbaya out of tune.  Now that Lawrence Connell is being burned at the stake, and David Bernstein has shown the ‘nads to stand up, let’s see how many scholars will similarly come forward and reject the Widener way. 

You know, better than I, that these schools and your colleagues who drank the kool-aid, are doing damage that is turning higher education into a joke.  So, what are you going to do about it?

And if you’re thinking of going to law school, your job is easy. Just scratch Widener off the list, like Marquette and St. Thomas.  And to tell you the truth, the rest of them are no prize either.

The name may not be a household word, but James Cayce is the judge who  signed off on the search warrant on July 28, 2011, requiring Google, as owner of Youtube, to give up its information about the nefarious Mr. Fiddlesticks, hater of the Renton, Washington police.

The alleged crime was cyberstalking, generating a  significant  amount of  analysis about the merit of the law and its applicability to some cartoons posted on Youtube that were unflattering to the local cops.  The story was outed by KIRO-TV reporter Chris Halsne, who questioned whether such parodies could really be criminal.  Relying on nationally respected legal experts, Halsne concludes that it doesn’t pass the laugh test.

The focus has largely been on Renton’s intention to prosecute Fiddlesticks for his alleged cyberstalking.  My suspicion is that nobody ever intended to prosecute, and the cops and prosecutors banged heads trying to come up with any colorable crime to fill out the search warrant affidavit.  Cyberstalking was the best they could come up with. 

But what they really wanted was to know who was creating these cartoons that hurt the cops’ feelings and made them look foolish.  They just wanted a name. Once they knew their enemy, they would fix the problem.

On the morning of July 28th, Judge James Cayce likely had no idea that this was the day that would make him an internet phenomenon.  Not much that happens in Renton becomes an internet phenomenon.  Maybe he had a cup of coffee or two.  People in Washington State tend to like coffee.  Nothing unusual.  And then he went to work, as do judges all over the country, dreading the droning of lawyers whining about the misery of their clients’ lives, every one of which is the worst ever and demands redress like no litigant before him.

In the midst of this judicial drudgery, maybe some papers are shuffled before him by his clerk, telling him they need to be signed.  He glances down at the papers and sees the caption, affidavit for a search warrant.  He checks to make sure the affiant signed and the attesting signatures are in place.  There they are, just as they should be, approved by the prosecutor.  He knows that this means the prosecutor has gone over the papers to make sure the “i”s are dotted and “t”s are crossed, that the niceties are in place, just as they are with all the other search warrants he’s asked to sign.  And as he scribbles his name on the proper line, he wonders what he should have for lunch. 

The effort required to carefully scrutinize a search warrant, to parse the details with the level of scrutiny that one might anticipate before allowing a police officer to engage in an intrusion so severe and serious that it’s worthy of constitutional protection, is really quite hard.  To put in the amount of thought necessary, it could take hours, analyzing its merit from all angles, considering whether it’s truly needed and whether, if the police find what they’re seeking, a crime will be solved. 

This could eat up a large part of a judge’s day, were he to give it the focus demanded of something of constitutional magnitude.  Who has that much time?  The wheels of justice would grind to a halt, and the judge would never make it home in time for dinner.

Putting pen to paper to scribble the lines that constitute the authorization for the police to search is a task that takes no more than a few second.  If we just assume the normal course, the personal presumption of regularity, then the authorization for the search warrant will barely make a ripple in the hard day ahead of a judge.  He can get back to the work of doing justice, listening to the next lawyer whine about the misery his client endures.  All day long, one misery or another, each the end of the world that can only be stopped by his Solomonic decision.  And then there’s the question of what to eat for dinner.

And so James Cayce performed his judicial function, relying upon the banality of the paper searching for the identity of some cartoon-making internet guy, without breaking stride from the daily routine.  And now, he’s famous on the internet for approving one of the most ridiculous search warrants ever signed.

This entire scenario, of course, exists only in my fertile imagination.  I have no clue what James Cayce did on July 28th, nor the amount of time, thought or attention he gave this search warrant application by the local cops who wanted so badly to find out which of their residents was ridiculing them on the internet.  It’s sheer fantasy, borne of my desire to believe that Judge James Cayce isn’t a blithering idiot who didn’t have the slightest clue what he was signing or the outrageous legal issues at stake in his authorization, or some blind cop-loving jurist who would authorize a rectal search of his mother if the highway patrol asked nicely.

No, I prefer to speculate that these papers were just shuffled before him, as search warrants are handed up from clerk to judge in courtrooms across the country every day, with judges performing their legal function by putting their name on the correct line as they ponder why they ever thought wearing a robe was going to be a prestigious career choice.  Work, work, work.

But I do believe that Judge James Cayce never expected to find his name repeated all over the internet on the morning of July 28th.  Had he anticipated this, he probably would have given this warrant application a lot more thought.

Kevin Underhill’s blog, Lowering the Bar, has managed to do something that no one else online has been able to do.  Be funny and stay that way.  It’s not that the law doesn’t offer a multitude of opportunities to find funny things, but it’s very hard to maintain the subtle touch that brings out the humor that could make a lesser man cry.

That doesn’t mean, however, that the subjects Kevin touches are limited to knee-slappers.  Quite the contrary, as humor is often an excellent way to note the foibles of a serious target and ridicule it in a witty way.  As we chuckle at Kevin’s posts, we can’t forget that the humor masks the pain that’s caused in the lives of many.  Funny, and not funny at all.

One of the most pervasive issues of the year stems from the TSA adoption of body scanners, combined with scope and grope, to save us from the terrorists.  Whether they be toddlers or the elderly in diapers, rape victims or breast-feeding moms, it’s been a sickening morass of failure and anger.   We’ve discussed whether the rights lost to safety are worth it, the use has been shockingly misguided and the harm justified or justifiable.  But Kevin’s post, German Police: Body Scanners Are Useless, raises a question of a different sort.

Has this all been just a complete, total, extremely expensive, extremely intrusive, extremely painful, joke?

After a ten-month test of the same scanners currently irritating many U.S. travelers, German federal police have concluded that they aren’t worth using. This appears to be largely because, according to the report, the scanners “triggered an unnecessary alarm in seven out of ten cases.”

How many of the other 30 percent might have been false negatives, I guess we’ll never know.

After all the pain we’ve endured at the hands of these machines, they don’t actually work?  This is certainly something we can all laugh about, even though it’s unlikely that the Department of Homeland Security will admit that the German’s are right, that the body scanners, for which former Homeland Security Czar (and federal prosecutor and judge) Michael Chertoff, lobbied on behalf of their maker, Rapiscan,   And it turns out that the very expensive but shiny hardware, now deployed backwater airports that no terrorist has ever heard of, don’t work. Ha! They got us.  That was a good one.

Adoration of technology has become as American as mom and apple pie, with so many of us believing that any device that runs on electricity contains magic that makes the impossible happen.  We are amazed at how invisible waves zip through the air and make wondrous images appear on tiny screens in our hand.  We are thrilled that metal and wire can protect us from knives and bullets.  And bombs.  And sweaty armpits and pleated pants.  And the layered look that goes in and out of style.

When Apple produces a new iPad, the scrutiny is overwhelming, launching thousands of eyes and fingers a’twitching with overwhelming interest in whether it’s really an advancement over its predecessor.  The interest is monumental.  Of course, the iToys have a shelf-life of a few months, forcing its critics and adherents to start over again before the pixels dims.

Sadly, there has never been similar scrutiny of the technology used by government.  Apparently, no one gives these tools more than a thorough rhetorical look-see, whether it’s the breathalyzer 5000 (which courts have embraced despite the fact that no one other than the manufacturer can explain how it works, or even such old school devices as speed radar, which will clock a tree at 70 when plugged into the cigarette lighter socket of a Crown Vic.  Despite these examples of historic willful ignorance, we still think nothing of spending billions and humiliating people everywhere to enjoy the benefits of a machine that fails.

When Kevin Underhill writes about the findings of the German’s, it’s witty and funny, almost impossible not to bring a wry smile to a reader’s face.  When I write about it, it’s heavy, sad and depressing.  But both of us have the same point to make, whether done in enjoyable fashion or mine.  Our blind faith in technology to magically solve our problems isn’t working out very well.  The people who makes decisions about its purchase, use and admissibility in court don’t have the capability to understand what they’re doing, and they rely on compromised, self-serving voices in making their determinations.

And we suffer for it.  Sorry, but I can’t make a joke of this.