Over the weekend, a new reader emailed me about a recent story that outraged him.  He wanted me to write about it, asking whether it disturbed me as much as him.  It was an absurd story, about an 11-year-old arrested for a stick drawing that suggested some significant anger issues, that occurred a mere 18 miles down the road from Columbine.

But I didn’t write about it.  There was nothing to add, other than the sad fact of its occurrence.  That’s not enough.

The popularity of a blawg is, in part, based upon creating a community of people who find something of value to read.  The easiest way in which the popularity of Simple Justice could be promoted is to sate the desire of those who share my sensibilities.  Feed the crowd what they want.

It’s easy to enough to do, as there is a never-ending supply of stories of injustice.  For those of you who are unaware, Packratt at  Injustice Everywhere does a daily summary.  Just last Friday, he  provides 18 reports of police misconduct, some with videos.  You can get them on a running basis at his National Police Misconduct News Feed.  If you want to feel the outrage, this is the perfect place for you.

It’s not my purpose to harp on the same issue, writing and rewriting the same heart-wrenching words about anger, frustration and outrage.  Over the weekend, Tom Kirkendall at  Houston’s Clear Thinkers  twitted how Norm Pattis’  is “writing the best material in the blogosphere about the injustice of over-inclusive sex offender laws” with this post. Tom’s a smart fellow, so I take his word for it.

Having read the same post in any one of 100 variations, however, there’s nothing new about sex offender registries being over-inclusive and harmful.  I’m happy to hear that Norm is writing about it, but I have no interest in writing about it myself.  There is nothing new to be said and no reason, other than to please the audience, for me to say it again.  If it pleases you to read about it again, Norm is there for you.

I write because I have something to say about a particular issue or situation, not to please or feed anyone’s desire to be outraged.  This is increasingly difficult over time, as posts begin to haunt me.  Haven’t I said this already?  Didn’t I already make this point?  The answer increasingly is not only “yes,” but numerous times.

There’s an interest in discussing issues and situations, but, this being my blawg, my interest is in what I think is a worthwhile discussion.  More often than not, non-lawyers have little to contribute, expressing their overwhelming feelings of anger and frustration with little nuance and less understanding of how it fits within the scheme of things.  You’re filled with hate and anger? Great. Next.

I was informed the other day by  some guy I don’t know on twitter that he disagrees with how I handle comments.  Putting aside the humor in his presumption that his view is relevant, He thinks I’m silly and over the top.  He favors handling thinks differently at Simple Justice.  He has no blog of his own, but writes for HuffPo. He wants to please the crowd, and thinks I should too.  He thinks I should please him.

This morning, there were a few things I considered writing about.  One was an article in the  New York Times magazine about mommy blogger, Heather Armstrong.

Typically, there are 100,000 visitors daily to her site, Dooce.com, where she writes about her kids, her husband, her pets, her treatment for depression and her life as a liberal ex-Mormon living in Utah. As she points out, a sizable number also follow her on Twitter (in the year and a half since she threatened Maytag, she has added a half-million more). She is the only blogger on the latest Forbes list of the Most Influential Women in Media, coming in at No. 26, which is 25 slots behind Oprah, but just one slot behind Tina Brown. Her site brings in an estimated $30,000 to $50,000 a month or more — and that’s not even counting the revenue from her two books, healthy speaking fees and the contracts she signed to promote Verizon and appear on HGTV. She won’t confirm her income (“We’re a privately held company and don’t reveal our financials”). But the sales rep for Federated Media, the agency that sells ads for Dooce, calls Armstrong “one of our most successful bloggers,” then notes a few beats later in our conversation that “our most successful bloggers can gross $1 million.”

Her mommy blog brings in $30 to $50k a month?  Holy crap. What am I doing wrong, I wondered as I read those words.  Dr. SJ said the same thing to me, with even greater emphasis.  Needless to say, no one from HGTV called yesterday to inquire as to my availability.

Many others have parlayed their efforts blogging into a new gig on the internet. Among law bloggers, most have transitioned into social media and marketing for lawyers, or legal technology prophets.  A few have set their sights on coaching lawyers to go solo, usually in conjunction with marketing.  These things interest me only in their reflection of professional and ethical failings.  I’ve got no plans to teach anyone how to blog for profit.  And given what Heather Armstrong is doing, I clearly have no qualifications to do so.

I appreciate people sending me links to interesting stories. It doesn’t mean I’ll have anything to say about them, or that they will end up in a post.  Some people get angry with me for that, letting me know that they think the story is important and that their time in sending it to me has been wasted by my not respecting their effort enough to write about it.  They’re angry that I haven’t served them well.

Maybe the upshot is that my failure to please any crowd is the cohesive aspect of Simple Justice.  Maybe it’s cost me $50,000 a month in advertising revenue and a shot at hosting an HGTV show.  Maybe I won’t be the foremost blawger at much of anything, with a coterie of people I don’t know on twitter criticizing my comment policies.

It’s likely that there will be a substantive story or two that I feel compelled to write about in an hour, but for the moment, the only thing that wants to come out of my keyboard is that I’ve got no plans to please the crowd.  And to those of you who are angered by this, get the hell off my lawn.

As the book itself remains embargoed, my review of Walter Olson’s  Schools for Misrule remains locked away in the safe.  But since University of Illinois Lawprof  Larry Ribstein posted about some of the underlying concepts, I figured it’s fair game to deal with Ribstein, even if Walter will have to wait.

The central theme, as described in the editorial review and Ribstein’s post, is:

Walter describes law schools as essentially the hatcheries of bad ideas that have led to the sort of excessive litigation that Olson has chronicled in his long-running blog, Overlawyered.com.  These include the undue expansion of tort law, class actions, courts running schools, new and potentially open-ended rights, international jurisdiction over U.S.-based legal disputes, the growth of the “new property, and institutional reform litigation.

Ribstein then acknowledges, with no small amount of satisfaction, that Walter gives lawprofs great influence over the state of the law, a conclusion that warms the cockles of lawprofs hearts given that most of the legal profession considers their influence marginal at best.

It’s the combination of great influence, and politically-tinged pedagogy, that Walter sees as the core of the disconnection between what the lawprofs are teaching and the damage they are doing. 

Olson suggests that the source of the problem is law professors’ becoming disconnected from simply teaching existing doctrine and turning to the creation of social policy.  Olson traces this to an influential article, Harold D. Lasswell and Myres S. McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L.J. 203, 206 (1943), which argued that  

if legal education in the contemporary world is adequately to serve the needs of a  free and productive commonwealth, it must be conscious, efficient, and systematic training for policy-making. The proper function of our law schools is, in short, to contribute to the training of policy-makers for the ever more complete achievement of the democratic values that constitute the professed ends of American polity.

Having been a jurisprudence student of Myres McDougal at the end of his teaching career, his thrust was not to push a particular point of view, but rather to implore students to consider, as part of the whole of the law, the policy implications of the law and its interpretations.  In other words, think a bit harder than just what’s good for me at this moment, as one works to develop the law into a force that benefits society.  Still, each of us harbors our own ideas of what policy approach will prove more beneficial.

According to Olson, law schools “predictably churn out certain kinds of bad ideas:” expansion of law with little recognition of costs and limits, laws that increase the demand for lawyers, more power to international and federal lawmakers and less to state and local, positive rights rather than just the right to be left alone, more power to the courts, less to politicians.

Olson’s solution is more science, less advocacy, more emphasis on training in lawyers’ skills.  He concludes that “we neither need nor want more philosopher-monarchs. But we could use more good lawyers.”

This comes dreadfully close to reviewing Walter’s book, but since Ribstein started it, how can it be ignored?  Ribstein’s criticism conflates two independent notions, that training students to become good lawyers in what lawprofs dismissively call the “trade school” approach, is not merely inadequate, but an affront to the loftier goal of creating legal philosophers.  It’s never been my view that the two are in conflict, and students have to pick one of the other. 

Law students should leave school with the skills needed to practice law, or they’ve just wasted a whole lot of money and entered the employment world unequipped to do much beyond cash their paycheck (if they can get one) and screw up people’s lives. Sadly, this doesn’t seem to trouble many lawprofs.

On the other hand, having the capacity to think beyond the rote application of precedent, or the mechanics of statutory construction, enables lawyers to fulfill their responsibility of taking existing law and applying it in an ever-changing environment (think, what would Blackstone say about the internet?) in a way that both serves their clients and provides a societal benefit. Is this a bad thing?

Walter Olson says, well, yeah, it’s a bad thing.  It’s a terrible thing, because the policy concepts lawprofs are feeding these students reflect extreme and biased positions, giving rise to a generation of lawyers (and “legal thinkers”) who buy into the dangerous ideas taught them in school. 

Walter provides a laundry list of examples, mostly from law school clinics, demonstrating that they are inculcating a belief that one side on controversial legal issues is good while the opposition is evil.  For example, a law school clinic will represent tenants in eviction proceedings against landlord, with the clear message that tenants are poor and deserving and landlords are greedy and undeserving.  Should law students be taught to hate landlords?

Ribstein begs off responsibility.

I think it’s important to see law schools as only the supply side of the idea market.  Law professors manufacture ideas, but somebody has to buy.  There would be no problem if our ideas had power just because they were objectively persuasive.  The real problem is that those who control the legal system — lawyers, judges, professors — welcome a particular subset (pro-lawyer, pro-litigation) of the many good and bad ideas law schools manufacture. 

Both ideas have certain flaws. On Walter’s side, the ideas promoted are consistent with the needs filled.  There aren’t too many corporations looking to law school clinics to defend them against class actions, while there are plenty of individuals with worthy but financially trifling issues in need of help.  Open up a pro-corporation clinic and watch the tumbleweeds blow across the room. 

On Ribstein’s side, he gratuitously ignores the influence, both in suasion and grading, that lawprofs have over their eager students.  Students’ minds are empty vessels waiting to be filled, and lawprofs are only to happy to fill them up with their preferred scholarly notions. 

Blaming “those who control the legal system” is a cop out, as there’s a criminal defense lawyer for every prosecutor, a landlord’s lawyer for every tenant’s lawyer.  To paint lawyers as monolithic, pro-lawyer, pro-litigation, is to ignore the constant struggle within the profession to find betters ways to serve.  Clearly, Ribstein needs to stop reading only lawprof blawgs and spend some time with real lawyers to learn what they’re thinking.  We are hardly all litigation-happy, money-grubbing, irresponsible shysters.

Ribstein then contends that it’s Olson, not lawprofs, whose ideas will perpetuate the worst of the legal profession:

We need good ideas, including ideas that challenge the status quo, that are not going to be produced by those immersed in the day-to-day practice of law.  Olson’s solution could help perpetuate an increasingly outmoded system that relies on one-to-one legal advice, costly litigation, and excessively complex legal rules

This goes to Walter’s contention that law students should be taught more to practice law and less to advance “good” causes, which Ribstein contends will only perpetuate an “outmoded” system that promotes litigation and overly complicated rules. 

Ribstein’s point here is well taken, that breaking away from our litigation-loving ways requires more than teaching students how to do what lawyers have traditionally done.  But then, nobody raises factors like the excess of lawyers being churned out by law schools, the absurd expectations created by Biglaw, law schools and mommy as to the financial remuneration these students expect within a week after leaving law school, or lack of balance in the legal academy that gives rise to a viable legal system.

Both Walter and Ribstein operate under the assumption that there are good and evil sides in the law, when the truth is that none of us sits at the right hand of God.  Every case is different, every client is different and every cause is different, requiring us to consider the political propriety of our efforts as sui generis. 

But then, we’re lawyers, and charged with the responsibility of representing our client.  Unlike lawprofs and policy wonks, we only have the luxury of pontificating about our policy favors in our free time, such as when we blawg.  When we put on our lawyer hats, we have a job to do, and our client is always on the right side, even when he’s wrong.  That’s what I was taught in law school.

When the Innocence Project takes on a cause, its thrust is to test DNA to show that a convicted defendant may not be guilty.  It invariably begins with a conflict with the legal fiction that a jury cannot be wrong, having determined that a person is guilty. But DNA has broken down that fake wall, forcing us to realize that juries, hard as they may try, get it wrong and convict the innocent.

When the Innocence Project took on the cause of Anthony Wright in Pennsylvania, however, it had an additional stumbling block to address. 

Anthony Wright was convicted of rape and murder in 1993.  Soon after the state passed a bill in 2002 allowing people who have been convicted of a crime access to DNA testing to prove their innocence, Wright asked that he be allowed to perform DNA testing on evidence that was found at the crime scene.  Former Philadelphia District Attorney Lynne Abraham claimed that Wright wasn’t entitled to testing because he had confessed to the crime.  The trial court and a state intermediate court agreed and denied the testing. 

In its decision this week, the Pennsylvania Supreme Court overruled the lower courts and expressly disavowed an earlier intermediate appeals court ruling that was relied upon to deny the testing.  The court acknowledges that the legislature passed the DNA testing law in response to a number of DNA exonerations, including one in which the person cleared by DNA evidence had confessed to the crime.  The court notes that the fact that a confession has been deemed voluntary and admissible at trial does not mean that it is true and says, “We need not be reminded of the countless situations where persons confess to crimes of which they are innocent, either out of desire to cover up for the guilty person or because of a psychological urge to do so.” 

It’s been about a month since I received the email from John Kindley.  John and I are not on the same political page, and have had some disagreements as a result.  But he knew a guy who needed help.

Critical Aside: When someone needs a hand, put aside whatever other differences you may have and do what you can to help.  We may argue and disagree in the blawgosphere, but what we do in real life affects real people.  It trumps whatever petty disagreements we have online.

Kindley wrote to me about the “nutty professor,” Julian Heicklen, who he came to know via his anarchist connections.  Heicklen needed help in my backyard, and Kindly asked whether I would be willing to do so.  His case and situation were clearly interesting, so I agreed to speak to him.  I awaited the call, which Kindly informed me was coming.  It didn’t come.  I waited.  Then Heicklen’s story appeared in the New York Times and people all over the blawgosphere are putting in their two cents.

This is what it’s all about .

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

“Mr. Heicklen?” the magistrate judge, Ronald L. Ellis, asked. “Mr. Heicklen? Is Mr. Heicklen awake?”

“I believe he is, your honor,” a prosecutor, Rebecca Mermelstein, said. “I think he’s choosing not to respond but is certainly capable of doing so.”

There was, in fact, nothing wrong with Mr. Heicklen, 78, who eventually opened his eyes and told the judge, “I’m exercising my Fifth Amendment right to remain silent.”

Only a day after  John Wesley Hall’s list of linkable Fourth Amendment Supreme Court decisions, Michael O’Hear at  PrawfsBlawg provides a state by state list of early release initiatives over the past decade, what he calls the “early-release renaissance.”

Much of the new legislation is designed to encourage and reward inmates for participating in prison-based programming, which seems to reflect a renewed confidence in the capacity of offenders to achieve rehabilitation under the guidance of corrections officials.  (The extraordinary growth of drug treatment courts across the country may provide even clearer evidence of this.)  Likewise, much of the new legislation is intended to provide release opportunities for inmates who suffer from terminal illnesses or who have otherwise become seriously physically disabled.  

Such legislation seems to reflect a turn away from the indiscriminate approach to incapacitation that prevailed in the 1990s.  Finally, much of the legislation is intended to provide enhanced release opportunities for nonviolent drug offenders, which may indicate a weakening of the close association between drug crime and violent crime that seemed to develop in the public’s imagination during the crack epidemic in the 1980s.

While I suspect it’s far less a demonstration of the public’s acceptance of the concept of rehabilitation as a means of the correctional system ridding itself of the excesses of tough-on-crime legislation, we’ll take it any way it comes. 

Here is the list, broken down by state, with footnotes, because O’Hear is a lawprof and it just wouldn’t be cool without footnotes.

It’s hardly clear that the Houston police are any more brutal or abusive than any other police department, but the  video of Chad Holley being used as a kicking bag is the sort of thing to galvanize interest.  A smart politician will make a grand gesture after being outed as the facilitator or concealer of misconduct, and so the Houston City Council held a hearing.  There’s no better way to clear the air than to allow the malcontents to vent.

Paul Kennedy was unable to attend the hearing, but  provided the forum for former Harris County Criminal Lawyers Association president, Robert Fickman, to tell the story.

I attended today’s City Council Meeting along with my officemate Vivian King. Altogether I am sorry to report that the meeting left me largely disappointed. However, my resolve to fight police brutality has never been stronger. 

First,  I had called upon our fellow members of the Harris County Criminal Lawyers Association to attend. I thought that some of our 500 plus members would want to join us in speaking out against police brutality. 

I was mistaken. Vivian and I were the only two members of the Defense Bar there.

John Wesley Hall has provided a compilation of everything anyone could want, and most importantly links, to 4th Amendment decisions of the Supreme Court of the United States.  This is one huge undertaking, and provides an incredible resource. 

H/T Orin Kerr : “sweet”.  Sweet, indeed. I offer my appreciation as well for the hard work of putting this together.

Poor Norman Cox.  As a 6News reporter, he must have been awfully proud that his son was an Indiana Deputy Attorney General.  As the Statehouse reporter, and Emmy winner for revealing official misconduct when a state auditor running for office failed to file papers on time, he understood better than most what it meant to hold such an critical position.

And then came twitter.  Oh boy.  Via Mother Jones :

On Saturday night, when Mother Jones staffers tweeted a report that riot police might soon sweep demonstrators out of the Wisconsin capitol building—something that didn’t end up happening—one Twitter user sent out  a chilling public response : “Use live ammunition.”

From my own Twitter account, I confronted the user,  JCCentCom. He tweeted back that the demonstrators were “political enemies” and “thugs” who were “physically threatening legally elected officials.” In response to such behavior, he said, “You’re damned right I advocate deadly force.” He later called me a “typical leftist,” adding, “liberals hate police.”

Only later did we realize that JCCentCom was  a deputy attorney general for the state of Indiana…

The Indiana Attorney General’s Office said Wednesday morning that Cox’s comments were under review. A later statement said Cox was “no longer employed by this agency.”

“Civility and courtesy toward all members of the public are very important to the Indiana Attorney General’s Office,” the statement read. “We respect individuals’ First Amendment right to express their personal views on private online forums, but as public servants, we are held by the public to a higher standard, and we should strive for civility.”

Cox told 6News’ Joanna Massee on Wednesday that his Twitter comments were intended to be satirical.

“I think this whole situation is a bit ridiculous. Public employees don’t lose their own First Amendment rights, especially on their own time and own resources by virtue of their public employment,” he said. “I think we’re getting down a slippery slope here in terms of silencing people who disagree.”

He followed the rules to the letter. After all, it was the internet, whose only purpose is to create the fictional impression of a lawyer and firm to which clients would race for their legal needs.  The other set of rules, the ones that apply to the behavior of lawyers and their relationship to deception, don’t apply.  All the marketers say so, and they would know.

From the Legal Profession Blog :

The attorney had, among other things, advertised his practice as himself “& Associates” when in fact he had a solo practice. He also had a video linked to his web page in which a non-attorney was presented as a member of the firm. The web page listed non-existent firm practice groups, and falsely indicated that he had three office locations and decades of experience.

The attorney was left unnamed in the post, but the  ABA Journal prominently identified the lawyer: Jason Matthew Head of Virginia Beach.  His name wasn’t hard to find, as it appeared at the top of the  order suspending him from practice.

Of course, it wasn’t all about his deception online, as he blew his representation of a client which gave rise to the bar complaint.  But then, one need not worry about legal competence when, with a few bold keystrokes, one can appear to be the most competent lawyer ever on the internet.

Jason Head was admitted to practice in 2001.  It appears that he opened his office as a solo in 2002.  Perhaps he soon came to the realization that the stories of great wealth and success as solo practitioner, propagated by its advocates who deliberately shield their eyes from reality, were exaggerated.  Perhaps he found that clients didn’t flock to him and the phone sat silently.  He had to do something.

Almost every twist in Jason Head’s marketing scheme comes from the marketer’s playbook.  Be more than you are, from size to skill to experience.  Say whatever will make people give you money.  Forget that we’re lawyers, as the old rules were made by mean old men who don’t understand the internet.

On the internet, we can be anything we want to be.  Reality doesn’t matter any more.  We are what Google says we are, and Google will say we’re whatever we want to be.

Granted, the lords of the Virginia bar didn’t come to notice Jason Head because he was deceptive on his website, but rather because he blew a house closing and bounced some escrow checks.  Only after these hard violations did they happen to realize that he fabricated a world that didn’t exist, that he lied to the potential consumers of his legal services to make him appear more than he was.

So what if he was shameless in his self-promotion?  That’s what’s needed in today’s marketing world, where some kid lawyer claims to have decades of experience, a flock of associates and practice areas that rival the largest white shoe firm.  Shame is a passé concept.  Rather than be ashamed, we’re so very proud of amassing a marketing machine that makes us special online.

But all is not lost for Jason and the marketers.  The Virginia Beach Circuit Court suspended Head for 30 days.  That’s what the locals call an extended vacation.

Maybe shame is passé for those who are entrusted with preventing lawyers from deceiving people on the internet as well.  A thirty day suspension sends a tepid message to those lawyers who would flawg themselves across the internet, given the unlikelihood that anyone will ever notice their marketing lies.  Maybe the age of marketers is not only upon us, but here to stay with the blessing of the court.

The beef aside, public employees in Wisconsin (as elsewhere) are not allowed to strike.  That means that all those protesting around the capital rotunda are AWOL, unless they happen to be sufficiently ill to take a sick day.  And so they are, as shown in a slew of videos embedded in an  Atlantic post by Ford Vox.

No doubt many members of the University of Wisconsin’s Department of Family Medicine share the teachers’ concerns. Public employees are joining a struggle already familiar to most patients. Family doctors work the front lines advocating for our interests amidst a disintegrating health care system, summoning the will to keep battling with insurers and administrators all while trying to hold on to their belief that they can change human behavior. Family doctors feel your pain and have the battle scars to prove it.

But last week some of these weary warriors carried their patient advocacy too far. In videos breathlessly presented throughout the conservative mediasphere this weekend, doctor after doctor is videotaped writing patently fraudulent sick notes so that the protesting teachers (whose contracts specify that missing work without an excuse can result in dismissal) can keep marching on against the state’s union-busting Republican government.

[The note writing doctors have] managed to belittle a public trust between physicians, employers and patients. A doctor’s sick note is a serious document. It represents an employer’s desire to verify through a respected, independent, medically qualified third party the fact of an illness and the true need for convalescence. In the videos now circulating online, we witness multiple members of a noted family medicine department trash one of the well-recognized rights and privileges of their profession, with little forethought as to the consequences.

When they did stay on it message, it wasn’t much to behold. One of the unidentified young physicians tells an inquisitive local libertarian organization called the MacIver Institute, “We are here writing doctor’s notes to support our public employees who have been mentally anguished and distressed this last week and needed to be out here for their mental health.” Medically speaking, that’s comedy.

Elsewhere in the tape UW faculty member Dr. James Shropshire signs a fake sick note for the MacIver videographer, who tells him he’s from California and isn’t tolerating the cold Wisconsin weather so well. Dr. Shropshire responds flatly, “So I’m concerned about that. I’d like you to take the rest of the day off today, get some rest, and try to stay healthy,” and signs his excuse note.