As  Brian Tannebaum twitted it with his typical aplomb, it seemed only right to take a look.  Another  cheerleading post designed to capture the fascination of the unemployed young lawyers who have little to do but seek comfort wherever they could find it. 

But a part of the story caught my eye, about a former Cardozo grad who, according to the story, made good.

For Rachel Rodgers, 29, technology is also central to her business model.

The 2009 Cardozo School of Law graduate spent a year clerking for a judge and then decided to start her own firm while working a part-time job at a law firm. She was laid off after they ran out of work for her to do, but her unemployment gave her the push she needed to dedicate more time and effort to building her practice.

By working from her home in Phoenix, Ariz., and using her website as her storefront, she manages to keep overhead costs less than $500 a month. Her virtual office allows clients to log into her website and, like a bank’s secure online system, send information back and forth between her clients.

Rodgers credits her success to the confidence she gained from the clerkship and to Solo Practice University, a subscription-based website founded in 2009 that offers video, written and audio tutorials for prospective or current solo practitioners.

Prior to forming her law practice, Rachel had various professional experiences in both the private law and public law sectors, where she handled corporate, criminal, family, real estate and small business matters. Rachel has developed expertise in various areas of alternative dispute resolution including negotiation, mediation and arbitration. Rachel has held judicial clerkships with both New York and New Jersey judges and has worked for federal district court handling cases referred to mediation in the alternative dispute resolution office. Prior to law school, Rachel worked for non-profits in New York, at a premier lobbying firm in Washington, D.C. and on Capitol Hill in the Senate office of Hillary Rodham Clinton.

That’s an awful lot of accomplishment for someone who graduated law school in 2009. Maybe even too much.  But what about the person?

Rachel comes from a family of entrepreneurs which is why she is passionate about helping people start and grow their own businesses. Due to growing up in the melting pot of New York City, Rachel enjoys learning about other parts of the world. She has traveled to Barbados, Ecuador, France, Hong Kong, Nigeria, Thailand and the United Kingdom to do volunteer work, to study and, yes, sometimes to just be a tourist. Rachel enjoys hanging out in bookstores, blogging (check out her blog  here), cooking, drinking East African coffee and watching the Jets play.

Aside from her misguided enjoyment of the Jets, she sounds like a lovely young lady. But does that qualify her to guide lawyers to success?  Apparently so.

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It may be pocket change to you, but it’s enough to keep a poor man in jail.  Bail is one of those dirty little secrets of the system, especially on the lowest end of the spectrum for trivial offenses.  A disheveled guy walks up to the table, his rap sheet with a few prior trivial charges and a kid prosecutor arguing that nothing short of $10,000 will secure his appearance in court.

There is no family in the courtroom.  He’s got no job.  His address is different on each arrest, and may even be a shelter that changes from month to month.  On paper, he’s a lousy bet, and there’s little he can promise that will bring much comfort that he’s a trustworthy sort of fellow.  So the judge, with almost nothing to work on, mumbles a pro forma $500 or $1000 and sends him back to the bench.

And the jails are full of defendants who will sit for months, maybe even a year, because they can’t make bail.

Is it really necessary to keep this poor guy, whose life on the street tends to bring him onto the cops’ radar on a regular basis, behind bars?  Before, the answer would have likely been, “who knows?”  Now, we have an answer.

The Bronx Freedom Fund, a pilot program in the Bronx, is a charitable endeavor bailing out the poor and giving them a chance to make good on that whispered promise that if they’re let out, they’ll be back.

The Bronx Freedom Fund is a revolutionary program designed to help poor Bronx residents avoid the costs of short jail sentences. We work with clients and families represented by The Bronx Defenders, a holistic public defenders office in the South Bronx. Our fund makes loans to family and community members so that they can post bail for their loved ones. Defendants assisted by the bail fund are connected with services and support for the duration of their cases, ensuring that they not only meet their court obligations but also get assistance to stabilize their lives in the long term. 

Since we opened in late 2007, 93% of the defendants assisted by our fund returned to make all of their court appearances, a compliance rate higher than those defendants released outright by judges. In addition, more than 50% of time, their cases were dismissed or resulted in a non-criminal disposition and not a single person released with the help of our fund received a jail sentence. Fighting from a position of freedom matters. 

“For far too long, the poorest of the poor have been held in jail without a conviction for any crime because they couldn’t afford even small amounts of bail,” said David Feige of the Bronx Freedom Fund. “Allowing charitable organizations like the Bronx Freedom Fund to post that bail is a giant step towards evening the scales and recognizing that pretrial justice shouldn’t be about the size of your wallet.” 

“We thank and congratulate Senator Rivera for his tremendous leadership on legislation whose positive impact will be felt not only by thousands of Bronx residents but throughout New York State,” said Robin Steinberg, Executive Director, The Bronx Defenders. 

This is a huge step forward in making the system a little bit less unfair toward the poor, who endure a hugely disproportionate amount of police “attention” and suffer for it in ways that are, and always have been, outrageous.

Not only does this open the door to the formation of charitable organizations throughout New York to posting bail on behalf of the poor, getting them out of pre-conviction punishment that’s often longer and more harsh than anything they would suffer by way of sentence, but it gives them a fighting chance to defend where before there was none.  Whether other organizations will come forward and do what Robin and David have done has yet to be seen, but hopefully others will come forward to give the poor a chance.

Of course, with the numbers reflected by the Bronx Freedom Fund, there’s a possibility that another group, a very small group, could make an even bigger difference without requiring the formation of charities and infusion of money. 

Judges, given the 93% return rate and 50% dismissal/reduction rate, are you really putting anything at risk by releasing poor people on their own recogizance?  Are those $500 bails truly needed, or just another way to make the lives of the poor that much more miserable?  Did you really put on the robe to be another person beating the poor into submission?  Cut them loose.  There’s just no reason to jail them over chump change.

H/T Dan Arshack

On May 5th, former Marine  Jose Guerena was killed.  On June 18th, 69-year-old  William Cooper was killed. They were not the first. They won’t be the last. They share some common themes.

1. A rat told police they, or someone at the same address, or someone at a similar or nearby address, was involved with drugs.
2. Police use this information to obtain a search warrant.
3. SWAT executes the warrant.
4. The warrant is executed with a “shock and awe” approach, whether the warrant is no-knock or knock and announce.
5. The resident of the premises being searched, not being a criminal, reacts by attempting to defend himself and his family.
6. The police fire many rounds into the resident’s body.
7. It turns out to be a big mistake.
8. The police either smear the dead person to undermine sympathy toward the victim or antipathy toward the police for having made a mistake and needlessly killing a person.
9. The police explain that if was a tragic but completely understandable and justifiable mistake.

At each step, there are flaws that occurred that could have been avoided.  At each step, there is an explanation for why the faults were not detected, why the action was necessary, why tragedies happen.

None of this alters the fact that there is an innocent person, enjoying the quiet sanctity of their home and family, who is now dead. 

The assignment of blame is too easy and too difficult, largely because there is so much to go around.  The numerous levels of over-reliance, on unreliable and ill-motivated snitches, on paramilitary tactics and weapons, on sworn oaths and artfully crafted allegations, on false assumptions, on the need to eradicate drugs, all contribute to the killing.  The public’s desire for security and adoration of law enforcement, and its willingness to accept the killing of innocent people in the process, provided they aren’t engaged in the collateral damage, is an omnipresent factor.

The screamers in the comments of newspaper articles and blogs reflect the knee-jerk love or hatred of the system, either excusing it or decrying it.  Passions are inflamed, but only of a handful of people.  Most people won’t know of the tragedies. They are much more concerned with the latest fashions or gadgets.  The death of innocent people in their homes is terribly depressing, seemingly defying solution, and thus not something to dwell on for very long.

There was a time when the use of extreme force was considered not to be exercised routinely.  Warrants were rare.  SWAT teams didn’t exist.  Police either relied on investigation or tripping over the criminal, but not on the pervasive use of cooperators who were forced to manufacture crimes when they ran out of the few they actually knew about, usually involving themselves.

The linchpin was harm.  The priority of law enforcement was to prevent harm to citizens.  If the target of their attention was a person who was armed and dangerous, in the real sense rather than the currently presumed sense, the police took extreme action to try to stop their target from doing further harm.

With the initiation of the war on drugs, the priority shifted from prevent harm to eradicating drugs. No longer did police limit their actions toward people who were likely to be violent toward others, but rather toward people who they believed were engaged in selling drugs.  Soon, the presumption that drug dealers were armed became part of the justification to employ extreme force. 

This wasn’t entirely baseless, given the crack wars of the 1980’s, but it was also overly simplistic, and reflected a shift in law enforcement priorities, where every potential drug dealer was assumed to be a murderous threat despite the absence of any hard evidence to support the position.  But it has since become part of the mythology of crime, and justifies the employment of extreme measures in every case.

It’s fairly easy to see where law enforcement stepped onto the slippery slope. In fact, it was just over 40 years ago.  That was when the government made the decision that the importance of eradicating drugs in this country compelled law enforcement to act with extreme prejudice.  It was when police were told that they must treat drug dealing as if it was the murder of a child before their very eyes.  It was when they were given the moral authority to sacrifice the lives of citizens for the greater goal of the war on drugs.

Since then, everything has changed.  The governmental policy is that the seizure of drugs and arrest of those believed to be involved with drugs is more important than avoiding the mistaken killing of innocent people. Drugs trump people.

Lest we grow overly outrage too quickly, societal mores have changed with it.  Take those strong supporters of the Castle Doctrine, who firmly believe that they are entitled to kill people in the protection of property, and feel completely justified in causing the death of another human being to defend things.

There was once a foundational belief in this country that the use of force to defend and protect the lives of people was warranted, but that deadly force was not justified except to meet deadly force.  This is no longer the case.  Not for the police.  Not for the public.  Not for the courts.

We have become inured to the trade-offs.  We have come to accept collateral damage as the price that must be paid, wrapped up in platitudes that rationalize why it can’t be helped.  It wasn’t always this way.  It doesn’t have to be this way.  It can be helped.

This won’t end until we restore the traditional American value of the sanctity of life.  And there is little support for it, whether in law enforcement, government, the legal system or the public.  So people die.

The putative purpose of the television commercials is to enlist the public’s aid in stopping terrorism.  Certainly no one wants to stand idly by while terrorists blow up trains, right?  But is it necessary to be deluged with the slogan, “if you see something, say something?”

It is when creating a nation of rats.  Snitches.  Informants. People who will turn immediately to the police to alert them to someone doing something they don’t like.  Odd perhaps.  Or just something that annoys them.  Because you never know, and the worst that will happen is that the police will investigate and decide that it’s not a danger.  No harm, no foul.  Better to snitch at the drop of a hat then risk silence and allow evil to prevail.

Not just the grownups hear the pitch, but the children as well, indoctrinated to a world where we tell on others.  Snitching as a cultural imperative, for our safety.  Fear mongering is a very effective way for a message to seep into the subconscious.  Television is a very effective delivery mechanism.  Children are easily influenced, and believe what they see and hear, especially when it comes via a trusted medium over and over.

The  changes in the internal methods of the Federal Bureau of Investigation, ranging from picking through trash for fun and pleasure to roaming the internet in search of someone to investigate provoked Harvey Silverglate, author of Three Felonies a Day, to write a  letter to the editor of the New York Times.

You miss the main threat posed by the Federal Bureau of Investigation’s assuming the power to spy on all of us by physical surveillance, covert infiltration and even trash-picking, all without reasonable grounds for suspicion, much less the constitutional standard of “probable cause.”

The F.B.I. claims merely to want to find information by which it can squeeze citizens to cooperate in federal investigations. But what can possibly be found in the average person’s trash that would make him squeezable? The answer lies in the extraordinarily vague laws that characterize the sprawling federal criminal code.

The average law-abiding person probably engages in some act during the course of a typical day that an inventive agent or prosecutor can use as the basis for threatening a prosecution in the absence of “cooperation.” And once the citizen’s decision is made to cooperate, the feds excel at teaching their cooperators to become witnesses who know not only how to sing but also how to compose.

Going through the trash is simply the first step in an increasingly pernicious system that targets the innocent as well as the guilty. The Justice Department and its agencies and bureaus have completely lost sight of the limits that the Constitution was supposed to have imposed on their power.

HARVEY A. SILVERGLATE
Cambridge, Mass., June 19, 2011

No matter if the television commercials fail to persuade every American to do his civic duty and rat out his neighbor.  Even so, it’s always preferable to have redundant systems. 

Cooperation is such a benign word.  It’s cheerful and happy, raising images of hand-holding and voices singing in perfect harmony.  Working together.  Achieving a common goal. Cooperating.

All the while federal agents rummaging through out garbage to find something they can use, anything that raises the stench of wrongdoing, to convince us that joining the chorus is far better than being thrown in the hole.

Agents sift through garbage, looking for something to use against us.  Rats sift through garbage as well.  There is nothing benign about the word “rat.”

That nagging sense of worthlessness that lies just below the surface of legal scholarship has reared its ugly head again in a post by Brian Galle at PrawfsBlawg, questioning who would be the appropriate audience for lawprofs.

Many practitioners, from C.J. Roberts on down, have been heard to complain (read the comments!) about the “irrelevance” of recent legal scholarship to their work.  These complaints are, in a sense, factually wrong.  There is tons of doctrinal scholarship being produced today, much of it quite fine.  But to find it, you probably have to read a journal with “of” in the title, or a general-interest journal from a law school with a relatively low U.S. news ranking.  So really, the complaint is that gate-keepers at the most selective journals do not value the same things practitioners do.  It’s not an invalid complaint: being able to rely (at least to some extent) on gate-keepers to screen for quality is highly valuable for time-constrained actors.      

Perhaps, then, there is a need for some signal of quality for highly practical scholarship.  (The ABA’s journals seem a useful step in that direction.)  I nonetheless want to defend the status quo in which such scholarship is not highly prized by the academy, and therefore not prized by the gate-keepers who have internalized our norms. 

Yes, this again.  Another lawprof defending his efforts by telling those who might conceivably care that they’re wrong.  Here that, C.J. Roberts?  You should be reading law reviews because the guys who write the stuff say you’re wrong not to.

I’m not irrelevant! (stamps feet)  I’m not irrelevant! (stamps feet)

Yeah, not terribly convincing to me either. Galle distinguishes scholarship into two categories, theoretical and doctrinal.  The former is directed toward other academics, essentially internal musing meant to impress those who are fascinated by ideas with no practical applicability.  This he calls “modest.”  Doctrinal, on the other hand, is less than modest.

In short, I believe doctrinal scholarship should be viewed with some wariness because, in speaking directly to legal policy makers, it partakes of a perilous immodesty.  Purely theoretical scholarship, on the other hand, by whispering in the ears of other ivory-tower dwellers, is better suited to our limited capacity as scholars. 

A point raised in the comments by Bruce Boyden (who apparently doesn’t care for “snarky” responses to academic temper tantrums) is critical: 

Prestige for legal scholars is largely accorded by other legal scholars. Want to change what legal scholars write? Change the incentive system.

Since neither judges nor practitioners have a say in tenure or who gets the best parking spaces in the law school lot, why would lawprofs care whether anybody outside of the Academy reads their articles?  The answer is ego, and the need to be relevant.  Despite the first level of incentives, approval of their scholarly peers, the fact is that everyone wants to believe that they actually serve a purpose on earth.  Even lawprofs, a group disposed to insularity to avoid the slings and arrows of outrageous reality.

The alleged sin of immodesty may be grounded in the fact that lawprofs, in their ever-changing need to come up with a new hemline to justify why they’ve just penned the 387th law review article on a subject, live in a sanitized world.  They don’t accept this accusation, believing that the two years of judicial clerkship makes them as worldly as anyone else, but dabblers are like that.  No one wants to believe that their limited experience leaves them out of touch, and this is even more true of exceptionally smart people.  Like it or not, most lawprofs are indeed exceptionally smart. 

The reason this matters, at least to a trench lawyer like me, is that the waste of this very expensive, finely honed brain power is a travesty.  Writing articles that no one will read, like building houses that no one will live in, is just a terrible waste.  I read many of the lawprof blogs, and find them to have some very interesting, very curious insights.  The lawprofs don’t read practitioner blawgs, however, because we tend to be too vulgar and snarky for their tastes.  And we scare the crap out of them.

I find Galle’s attempt to rationalize the problem by separating the nature of content into theoretical and doctrinal to be largely misguided, a product of academic insularity.  This isn’t the problem, though the theoretical certainly tends to be so far removed from anything that would serve a sufficient purpose as to merit the time to read, sucked from so busy a schedule that only the most pressing and utilitarian matters make it to the front burner.

But it’s not because it can’t be interesting, or even worthwhile. 

In response, I offer a modest proposal to those lawprofs who, in their heart of hearts, want to believe that their efforts aren’t completely wasted.

1.  2000 Words.  Law review articles are too long and take too much time to read.  Time is a scarce resource, and, frankly, no one wants to waste it reading 78 pages of a law review article that reiterates its point 17 different ways.  Say it once. Say it clearly. Get out.

2. Write in English.  The Academy loves its jargon, as does every other insular group (including judges and practitioners).  But if you want us to read you, then use our language, not yours. It’s pedantic, tedious and, for the most part, incomprehensible. I realize that tenure committees adore scholarly jargon. We don’t.

3. Topical topics. It’s hard to find a topic that is interesting to you and matters to us. By topical, I don’t suggest that it must be popular or the flavor of the month, but that it touches on something that, at some point in time, someone outside of academia will care about. No one will ever, ever, find a use for an article on whether the Ministry of Magic affords due process to wizards.  Ever.

4.  Need to know. Some people read law review articles for fun. They are called “shut-ins” and usually would benefit from therapy.  The rest of us need to be able to find your brilliance when we need it.  Surprisingly, we don’t hang out at SSRN when we research a topic.  If you want us to read you, make your writings available to us in the normal course of research.  We’re really kind of busy and aren’t inclined to endure the labor of finding your writings before suffering to read them.

5. Eyes wide open. Despite your agenda and attempt to be provocative, recognize that the utility of odd theories or policies depends on their recognition of countervailing arguments. While you may be comfortable ignoring them or dismissing them out of hand, we don’t have that luxury since there’s always a guy at the other table waiting to call us out.

6. Man up. Sometimes there’s a germ of a useful idea in scholarship, but it smacks head first against the wall of reality.  When you’re told, you argue that you’re right and we’re wrong.  There are few groups more defensive than lawprofs.  Here’s a compromise: We’ll acknowledge that you’re all brilliant if you’ll acknowledge that we have a slightly better clue as to what happens in the well.  It may not comport with life in the ivy covered buildings, but we wouldn’t lie to you.  Really, we wouldn’t.

The problem with these suggestions, as Bruce Boydon noted, is that we don’t have tenure to offer, can’t give you a raise or a chair, don’t even get a vote on where you get to park.  The incentive system for lawprofs is wholly outside our control, and nobody in law school administration has ever really cared a whit what the practitioners have to say about their stewardship.

But if you want to be relevant to us, and you want us to read you, this is what you need to do.

Why they do it is no secret: Every child wants the approval of his mommy.  When it comes to moms, no one ever really grows up.  Most of the time, a mother would rather die than harm her baby, but sometimes they feel otherwise.  Sometimes, they can be manipulated into believing that they are helping their baby.

That’s how mom becomes an agent of the government.

On the run for five days in 2009 after allegedly murdering his uncle in New Lenox Township, Ill., Jason Gonzalez was found by Joliet police asleep in his mother’s car when he turned on his cellphone for the first time since the slaying.

Gonzalez declined to talk to Will County sheriff’s detectives, asking six times for a lawyer, according to his attorneys. So police turned to what in some murder cases is one of the most powerful levers at their disposal – the suspect’s mother.

Kimberly Gonzalez was brought into the Joliet interview room, outfitted with video and audio recording equipment, where her son was being questioned. He told her he fatally shot his uncle – her brother Lance Goebel, 48 – then repeated his confession to Will County detectives who handed him a letter from his mother urging him to talk.

Don’t blame the cops for using the tool available to them, Mom.  But then, Gonzalez was smart enough to refuse to talk, savvy enough to invoke his right to counsel six times.  The police, to their credit, concede this, as opposed to the usual denials that it ever happened or parsing of words to suggest that “I want to speak with a lawyer” was far too vague to comprehend.  As defendants go, Gonzalez did well.

But when the police pulled out the big gun, he crumbled. He spilled his guts to mom.  Mom! Who can say no to the woman who carried you for nine months, who gave you life and held you to her breast?

Missing from this homey scenario, however, is that recognition that Kimberly Gonzalez wore a new hat when the allowed police to wire her up, instruct her on the discussion she would have with her son, and walk her into Joliet.  No longer was she merely mom.  Now she was an agent of the government.

Attorneys for Gonzalez, who are asking a judge to throw out the statements because they say their client had repeatedly asked for an attorney, called the conversation with Gonzelez’s mother the “functional equivalent of a police interrogation” and a “psychological ploy to elicit incriminating testimony.”

This isn’t the “functional equivalent” of anything; it is a police interrogation.  It is every bit as much a police interrogation as if mom put on a shield.  That it’s a particularly effective means of interrogating the recalcitrant defendant, exploiting every boy’s psychological desire to find shelter in his mother’s bosom, isn’t a flaw but a feature.  Much effort is put into law enforcement to find such features, and they do.

But the invocation of rights, both silence and an attorney, isn’t limited to Officer Friendly, but any person working for cops as well.  Mom too.

The more pernicious problem arises when slightly smarter cop figures out that he can use mommy and avoid the agency problem by wiring her up before taking the defendant into custody.

These are extreme examples of a common police tactic. Before formally filing murder charges last month against accused Blue Island, Ill., serial killer Sonny Pierce, police leaned hard on his mother, urging her to get him to confess before allowing her to speak with him, she says.

Scott Eby, now serving a life sentence, first confessed to his mother that he raped and murdered 3-year-old Riley Fox after FBI agents came to collect his DNA, a confession that caused the FBI to interview him again soon after.

Bear in mind, Miranda doesn’t come into play unless the interrogation is custodial.  As long as the cops know where to find their target, the need to grab him is secondary to the need to get him to talk.  That’s where mother’s milk comes in.

[DePaul law professor Susan] Bandes said that depending on the circumstances of the case – whether charges have been filed yet, whether the suspect asked for an attorney – it can be difficult to judge whether the tactic violates a suspect’s constitutional rights.

The Miranda warnings familiar to anyone who’s ever watched a TV police drama are intended to protect a suspect from feeling compelled to talk. But Bandes said an argument could be made that those safeguards don’t apply when a mom, as opposed to an intimidating police detective, is sitting across the table.

“It would feel like I’m just talking to my mom,” she said.

Bandes is absolutely, unequivocally wrong.  There is nothing about using mom that distinguishes her becoming an agent of the government from anyone else. Except maybe that she’s far more effective than any other potential government agent.  The only trick is whether they are able to do so before Miranda kicks in, when it’s fair game.

Once rights have been invoked, not even mom is entitled to undermine a defendant’s constitutional rights when she takes on the role of government agent.  If the talk comes before custody, however, then it’s fair game.  And this time, it may be far more than nine months at stake.

In explaining the process of the legal system from trial court to the Big Bench,  Eugene Volokh offered some perspective on how and why a case makes it to the Supreme Court in order to counter the misperception that the Supremes were there to straighten out injustice and bad decisions.  Error schmerror, as we lawyers say.

Orin Kerr took Eugene’s post a step further, or perhaps orthogonally, in noting that our Supreme Court Justices are expected to deal with flavors of law far afield from what they knew and practiced.

I would add another important point often lost in discussions of the Supreme Court: The Justices are generalists. They’re smart people, but they’re people, not gods. Because the Supreme Court reviews such a dizzying array of federal legal questions, the Justices spend their time on lots of pretty arcane and specific issues ranging from tax, ERISA, and bankruptcy questions to civil rights cases and commercial cases to criminal cases and jurisdictional cases. In that environment, the Justices don’t specialize much. They have a general idea of most general areas of federal law, at least after a few years on the Court, but they’re mostly generalists.

In a sense, the Justices are like most litigators. They become quasi-specialists about cases and issues because they have to be, but they’re not experts in the fields of law that they decide. When a case is on the docket, the Justices jump into the issue and learn about it. They try to figure out what is happening, and then they vote. To be sure, sometimes a Justice will come to the Court with a specialized background, and will maintain an interest in a particular field as a Justice. But that’s less common than you might think, and it’s relatively rare for a Justice to have the time to maintain that level of interest and knowledge about the field when on the Court.

This is a critical point, both from a practitioner’s perspective (don’t assume that because you are well versed in the law and see much of your argument as too obvious to be worthy of discussion that the justices will share your familiarity) as well as an institutional perspective.  We put into the 18 hands a monumental amount of authority to decide some big issues. 

Orin’s point is well taken, that nobody, even really smart lawyers, have such incredibly nuanced understandings of every niche of law to fully appreciate the significance of issues.  That the Supreme Court typically uses circuit splits as a “crutch” to decide what cases are worthy of their attention makes a bit of sense.

The problem is that it’s not good enough for those lawyers, and more importantly, those clients, who got burned by some bum decision in a more specialized or obscure area of law.  The assumption that if the law is headed off in the wrong direction, it will produce a circuit split is unreliable.  Why should circuit judges be any more capable of having such incredibly nuanced understandings of highly specialized niches than the Supremes?  They look for guidance from other circuits as well, and may be more than happy to defer to the work of some other judges in an area of law that they don’t find particularly interesting.  It’s an easy out.

Moreover, it can take years, even decades, for circuit splits to show themselves.  Is it really acceptable to litigants that a generation later, the Supremes finally figure out that the law is all screwed up and lives were lost, businesses destroyed, conduct prohibited or encouraged, wrongly?  Do we not believe that there ought to be some end goal to all this courtroom stuff that means that litigants who deserve to win end up winning?  Do we not sleep well at night believing that there is someone out there who will correct the wrongs produced by the best system ever invented?  And do we not think this might happen in our lifetime?

The fact is that some areas of law are commonly litigated, and the issues presented are both of the sort that arise regularly and of the sort that interest most judges.  Criminal law tends to be such a thing, though even then the justices often show such a naive belief in what happens on the street as opposed to the sanitized world on which their decisions are based as to defy credulity.  But what of patent law?  Or maritime?  If that wasn’t the area of practice before climbing onto the bench, what are the chances a justice will have a clue?

Perhaps the solution is in having more specialized courts to deal with more obscure or technical areas of law, where the judges will bring experience in their respective trenches to the bench and have a meaningful grasp of the nuance and significance of issues.  But this lends itself to other problems, where courts become entrenched, and the politics of the law manifests itself into judges promoting a perspective they believe to be correct rather than giving a fair hearing.  It’s hard not to have a political perspective on the law in an area where one practiced.  It’s certainly true of criminal law.

A better answer might be for the Supremes to have access to specialists in niche practices to advise on the nature of issues in areas where the justices aren’t familiar.  Putting the questions to Supreme Court clerks, kids who have experience in nothing but can reasonably anticipate bright futures and huge bonuses when they get scooped up by Biglaw, is hardly a substitute. 

What is clear, however, is that the justices aren’t supermen (and women) capable of knowing the most intimate aspect of every practice area on a constant basis.  Sadly, that’s exactly what we need of them, as the decision of the nine can make the legal world spin on its axis.

What’s the difference between an inmate whose “nose started bleeding” after he “banged his face against a wall” and one who was slammed against a bunk by police officers?  Nothing, in Cleveland.

From the Plain Dealer :

Supervisors rightly treated these inconsistencies as honest mistakes or minor contradictions, not deliberately false statements, Deputy Chief Hector Cuevas said this week in an interview.

“We’re not looking for perfection,” said Cuevas, whose assertions were supported by Chief Michael McGrath. “These are not English professors generating these documents.”

McGrath and Cuevas are not bothered by dueling versions of how a man’s nose began bleeding during a May 2010 struggle inside a jail cell. Two police officers involved said the man banged his face against a wall. Two guards said officers forced the man down on a bunk.

Officers are required to complete special forms after using nondeadly force, whether the action is as tame as twisting an uncooperative suspect’s arm or as serious as firing a Taser. And supervisors are required to investigate the incidents to ensure the actions were appropriate.

“I don’t know if they’re substantial or significant differences,” Cuevas said. “It’s not unusual that you have four different officers and four different accounts of what happened.”

For example, on an incident report last October, Patrolman Martin Lentz claimed he hurt his left elbow during a struggle with a man cited for jaywalking. But Lentz displayed his right elbow in a photo taken to document the injury. Supervisors did not note the discrepancy, records show.

Deputy Chief Timothy Hennessy said this week that Lentz specified the right elbow on other forms that were not included in investigatory files provided to The Plain Dealer. Hennessy believes Lentz made an innocent mistake and sees no reason why the officer would have lied.

The chief took issue with a recent finding that many people whom officers scuffled with were never convicted of a crime. Sometimes, he said, force is necessary to gain control of mentally unstable people who have not broken the law but are in need of medical attention. Other times, victims of domestic violence don’t pursue charges, so cases are dismissed, McGrath said.

“We take pride in who we are and what we do,” McGrath wrote in his e-mail. “I assure you that the Division of Police will continue to serve this community with respect and dignity.”

We have a constitutional right to be left alone.  We have a right to walk away.  We have a right not to answer questions or comply with demands.  Much of our jurisprudence is grounded in these rights, which the Supreme Court reiterates in justification of creating exceptions.  And how does that play out on the street?

This video, via Bad Lawyer, provides one of the best teaching tools around when it comes to showing the reality of police/citizen encounters.  First, the set up.

Maybe you recall this story, a Utah man was pulled over by the City of Bountiful, Utah police.  He got out of his car, unarmed, hands at his sides and implored the police officer to tell him why he was stopped.  The cops deployed the TASER on him,  mmmmmmmm . . . 8 or 9 or maybe 10 times.

“The attempt to elude capture is a direct challenge to an officer’s authority,” Justice Kennedy said. “It is a provocative and dangerous act” that “places property and persons at serious risk of injury.”

As  part of the perfect world some believe possible, the eradication of consumer products that have any potential to cause harm seems a wonderful and justifiable goal.  As with police, prosecutors and courts, the theory sounds wonderful; who wants little Johnny to scrap his knee and endure pain again? 

Walter Olson at  Overlawyered has made a cottage industry out of  explaining the insanity of trying to create this perfect world, of believing that government can somehow manage to  get the system right this time where it has failed so many times before.

It’s not that we shouldn’t want to protect children from serious harm, though only a fool would believe that we can create a harm-free world short of putting every child in a bubble.  Some risk is actually useful, and teaches children how to navigate a world as they mature, but the tragedy of a dead child is something no one wants to face. 

The problem with the Consumer Product Safety Consumer Improvement Act of 2008 is that the government can’t contain the collateral damage to the very businesses that enrich and facilitate the better aspects our lives.  Nancy Lord, Commissioner of the Consumer Products Safety Commissions concedes the point :

Several years ago, a child died after being carried in the company’s product.  The agency did an in-depth investigation of the incident but did not find a causal link or a reason to take further action and so notified the company.  In 2010, the company was re-contacted by a representative of the agency who stated that we were reinvestigating all infant deaths in slings.  According to the business owner, the CPSC representative told her that a recall of her product was likely but we needed to do an investigation first.  

In the meantime, she was told to immediately stop sale of the product until the investigation was completed.  In response, the company pulled down its website (it being primarily a web-based business) and immediately stopped sale of all its sling products.  A date was scheduled for a CPSC representative to come to the company to observe the destruction of the company’s product but the agency backed off until the recall became official.  Weeks went by with no further word from the agency.  The website remained shut down.  The company finally received an email stating that no recall would, in fact, be done.  The time between the initial contact and the email closing the investigation was approximately 8 months. 

The time frame, 8 months, is lightning fast in the context of government.  It’s like some perverse variation on the bible, where a minutes becomes a day, and a day becomes a year.  You know, how government employees work “very hard,” yet never seem to get anything done within a time frame that anyone else, in any other job, would considering anything remotely resembling timely.  But it’s close enough for government work.

So what happened?

Because this was a very small internet-based business with one type of product, it was not able to last with no sales through the prolonged investigation and was forced to close.  The employees lost their jobs and the company owner was forced to default on an SBA loan which she had obtained to expand her business. 

The business death penalty.  I realize that business is evil to many, though small business is not so evil.  I’m as inclined to hate the way business deal with consumers as much as the next guy.  But I also realize that without them, I’m back to farming the north forty and sleeping on straw mats.  We hate them for being scum, and need them because they’re are scum.  This is no homage to business, but a realistic recognition that putting them to death makes our own problems worse.

Yet the CPSC put this business to death, not because it deserved it but by attrition.  Lord talks about the lessons learned.

This incident raises a number of important issues.  For example, if we have not determined that a product contains a defect or is a substantial product hazard, are we justified in recalling it, based only on the fact that it is associated with a death or serious injury?  When is it appropriate to “require” a stop sale during an investigation?  Obviously, the answers to these questions need to be made on the basis of the facts in each individual case.  As the circumstances of this case demonstrate, an across-the-board inflexible rule does not make the most sense. 

It’s always nice to ask questions, but whoever said that knowing the question was halfway to finding a solution was wrong. It’s 3% tops.  Given that focus of the CPSC on safety (which would explain why the word appears in its name), the presumption will always be to shut business down, take no risk, let no child be harmed until their work it done.  Oh yeah, and let the agency suffer no embarrassment for making the wrong call.  Safety first. 

The only people who care about the business are the people who own or work for the business. We all care about children.  We all feel the horror of a tragedy.  To those who endure no loss from the excesses of government safety, exactly like the excesses of security, the government should take no chances.  We are only too happy to take no risks when it’s someone else who suffers for our caution.

This incident also illustrates the need for the agency, once it opens an investigation, to manage that investigation to conclusion in an efficient manner. 

This is where Nancy Lord proves, conclusively, that she does her job well.  She has kept every option for her agency open, while giving the appearance of recognizing that her agency’s delay and mishandling destroyed a business and harmed the lives of those who relied on that business.  Innocent lives harmed for nothing because the government couldn’t manage to do its job in an “efficient manner.” 

Efficient, of course, doesn’t mean what most people think it does. It’s not prompt. It’s not effective.  It is good enough to make the doer satisfied that he could not have done it better, quicker, more whatever.  It does not mean that it accomplished the task correctly within a required time frame so that it didn’t leave a trail of dead bodies in its wake. 

Lord’s concession that the CPSC failed isn’t a promise that they won’t put another business to death, but rather an admission that the process of doing its job is the death penalty.  Eight months is too long for a business to be dormant and survive?  What about two months?  What about two weeks?  Call a business out for being a danger to children and see how well it thrives afterward. There’s very little room to move here, but the duty of the CPSC and existence of an innocent business under scrutiny are incompatible.  Something has to give, and it’s not going to be government.

Granted, business has done more than its share to justify scrutiny. Greed is a powerful motivator.  So then have we, as nobody should need a warning label telling people not to touch a whirling buzzsaw with their tongue.  And if they did, chances are good that they couldn’t read the label anyway.  Our belief that we should be entitled to do whatever strikes as convenient at any given moment, with someone else to blame for our own moments of shocking stupidity, is no better than the corporation that manufactures the shiny death trap.

But the government solution, replacing sound judgment with misguided trust in the government to create our perfectly safe and secure world, won’t work either.  It doesn’t work with security. It doesn’t work with safety. It just plain doesn’t work.  We can stop buying crap from companies that sell needlessly dangerous products.  We can stop sticking our tongues against whirling buzzsaws. We can stop expecting government to get it right when they have never been capable of doing so before.

Our beautiful babies will skin their knees.  Some miscreant will mug an old lady for a fix.  There will never be a world that’s perfectly safe and secure for all.  And our lives will be better for it.