On retrial, Luis was acquitted.  You know Luis, don’t you?  His last name is Melendez-Diaz, as in Melendez-Diaz v. Massachusetts, requiring an actual living, breathing person to take the witness stand in order to put laboratory reports into evidence.  You know, confrontation and all.

I learned that Luis was acquitted from Brian Tannebaum, who made the point that Melendez-Diaz isn’t merely a case name, like Gideon or Miranda, but a person.  Sure, they live in perpetuity in hornbooks and briefs, but each was an actual person who was dragged into court one day with a whole lot on the line. 

After a glorious victory with the Supremes, Luis had to go back to court and face retrial.  We tend to forget about the people after the big story has been told.  After all, the Melendez-Diaz decision changes the landscape for those courts where papers proved the crime instead of people.  But for Luis, the celebration wasn’t quite complete.  He may have won the point, but he still had a trial to face.

And he was acquitted.  Not that he walked out of court afterward, as he is serving a ten year sentence for another drug case, but it beats a consecutive sentence any day. 

This small part of a big decision isn’t likely to be worthy of a lot of consideration.  After all, while every criminal defense lawyer knows about Ernesto Miranda, how many know what became of him?  After his big win at the Supremes and his statement suppressed, he was retried and convicted.  Some win, huh?

But in other news today, the Nassau County, New York, Crime Lab, previously  the only crime lab on probation in the country, has now had its drug chemistry lab shut down.  Closed.  Out of business.  The report is cursory, but nonetheless interesting.

New York officials have ordered the immediate shutdown of the drug chemistry section of the Nassau County crime lab.

District Attorney Kathleen Rice says the lab, which is currently under probation by a national accrediting agency, has produced a series of errors in its analysis of controlled substances. Nassau’s is currently the only crime lab in the country under probation.

Naturally, Rice then goes on to detail the heinous criminal behavior of the people she can’t prove to be guilty.  Gotta love Rice’s ability to make lemonade.  Without valid scientific evidence to prove that a substance is a controlled substance, Rice has nothing.  No case. No crime. No nothing.

Actually, she does have something.  There’s a piece of paper, a very official looking paper, that says it’s a laboratory report.  The very official looking piece of paper says that scientific tests were performed.  Maybe it even names the tests.  It most certainly provides an ironclad assurance that the substance in question is bad stuff, illegal, criminal.  It’s scientifically proven, the report says.

Except the lab “has produced a series of errors.”  It doesn’t say that anywhere on the report.

Notably, what happened in Nassau County, first the probation and then the closure, is unique.  Maybe it’s the worst in the nation.  Maybe it’s the only one where action has been taken to shut down a lab.  Maybe others are just as bad, or slightly less bad.  But if one crime lab was so bad that it had to be shut down, is it possible that others aren’t as perfect as the reports they issue would have us believe?

Lest we forget, the National Academies of Science  isn’t impressed with crime labs.  It’s report was damning.  Nothing has changed.  Nothing except that labs have to produce living, breathing witnesses in court so that they can’t just submit the official looking piece of paper that conclusively proves that a very scientific test was performed and the defendant is guilty as sin.

And Luis was acquitted.

Making sausage is messy.  Making law, if one follows the orderly process, shouldn’t be.  But then, judges would be required to squint their eyes really hard and pretend that nothing they did had any impact on the real world to ignore the consequences of their actions and go along for the ride.  Magistrate Judge James Orenstein in the Eastern District of New York isn’t going down without a fight.

Via Volokh, Orin Kerr notes that Mag. Orenstein is a naughty boy.  Again.

Back in August, I had a long post, Fourth Amendment Stunner: Judge Rules That Cell-Site Data Protected By Fourth Amendment Warrant Requirement, about a recent Fourth Amendment decision by Magistrate Judge James Orenstein. I wasn’t subtle in expressing my view that it was wrong: I called Magistrate Judge Orenstein’s decision ” an extraordinary opinion, in my view: It’s an extraordinary result, reached in an extraordinary way, and based on an extraordinary number of errors.” …District Judge Roslynn Mauskopf had reversed the decision.

Prior to being appointed to the District Court by President George W. Bush, Judge Mauskopf was a prosecutor, rising to United States Attorney for the Eastern District of New York, a position she held for five years before being appointed judge.  This by no means suggests that she’s unfair, but you ought to know.   Mag. Orenstein was also a prosecutor for most of his career as well.

After being benchslapped, Mag. Orenstein was presented with an almost identical case, sent from another judge.

Despite the order reversing his earlier order and granting the government’s application, Judge Orenstein decided to stick to his guns and deny the application on the ground that he was right before and the District Court was wrong.

Perhaps not surprisingly, my take on Mag. Orenstein’s initial decision was a bit more favorable than Orin’s.  I was  a fan of the Warshak decision, if not fully supportive of its rationale, and still harbor this wild notion that Congress doesn’t get to pass laws enabling warrantless access to anything technologically analogous to the Pony Express to avoid Fourth Amendment scrutiny.  But that’s just me.

The issue here is whether a magistrate judge, after having been “reversed” by a district court judge, can stick to his guns.  We’ve recently discussed the question of slavish adherence to precedent, which would compel a judge to issue an order that he concluded was unlawful. 

For those who believe that the orderly development of the law, by adherence to such precedent despite a sufficient belief that it’s wrong to endure the likely reversal, is put at risk, and that judges should adhere to precedent no matter what until a higher court reverses, Mag. Orenstein’s decision is “anarchy.”

But then, the relationship between a magistrate judge and the district court is somewhat different.  While Judge Mauskopf had the authority to “reverse” Mag. Orenstein’s decision, it was neither really a reversal nor a decision.  The case “belonged” to Judge Mauskopf, and she referred it to the magistrate for hearing and determination.  He then reported back to the judge from whence the case came, and she, as the assigned Article III judge, was responsible for approving or disapproving the magistrate’s recommendation.  It was nothing more than his recommendation, subject to the assigned judge’s approval.  She didn’t approve.

In the decision, Mag. Orenstein recognizes that Judge Mauskopf wasn’t enthralled with his ruling and addresses it:

Nevertheless, for reasons I have explained elsewhere under similar circumstances, Judge Mauskopf’s decision is not controlling authority, particularly where, as here, she is not the district judge currently on miscellaneous duty, to whom any review of this order will be assigned under this court’s rules. Moreover, deferring to the decision of a single district judge on a matter normally litigated before a magistrate judge on an ex parte basis-and thus not subject to further review where the government’s challenge to the magistrate judge’s adverse decision is successful-would needlessly “freeze the development of the law in [this] district, and possibly in [this] circuit, in a way that would not be possible with respect to motions normally made in the first instance to a district judge.”

He additionally notes support out of the Third Circuit and elsewhere, that bolsters his position.  The question remains, however, whether a magistrate judge is “empowered” to hold to his decision in the face of disapproval of a district court judge, even if on a different case.  More importantly, from the orderliness perspective, is whether this would “freeze the development of the law.”

The “freezing” point goes very much to the argument in favor of a judge taking the risk of ignoring precedent and issuing a principled ruling.  Evolution of the law begins at the bottom, where a judge hitches up his pants and does what he’s got to do.  Only then does the issue present itself, properly formed and fleshed, for consideration above.  It would be easy, and safe, to just cite to the precedent and shrug.  Even noting that, but for precedent, the decision would be otherwise fails to tee up an issue adequately except in the rarest of instances. 

Judges will disagree.  Judges should disagree, if agreement violates the principles they believe correct.  And judges may well find that those with the authority to give them a good smack will disagree with them.  It’s the rationale, the argument in favor or against a particular interpretation of law or the application of the Constitution, that generates change.  Even then, it’s awfully hard to come by, but without it, it’s impossible.

Not only do I happen to agree with Magistrate Judge Orenstein’s decision, which likely doesn’t count for anything, but I applaud his willingness to stand firm in his belief that the Constitution, the document to which he swore fealty, demands that decision.  I admire his willingness to face reversal, to look squarely at the possibility that a higher court will say mean things about his intellect and motives, because he believes that the Constitution, and more particularly the Fourth Amendment thereto, demands that the warrant clause be enforced, even if Congress forgot about it.

If nothing else, Mag. Orenstein’s decisions give rise to decisions by district judges that compel their consideration of the constitutional issue, whether to accept or reject his interpretation.  If he was to accept Judge Mauskopf”s spanking and run away with his tail between his legs, it would produce a more orderly decision-making process, and one more likely to be wrong.

I remember being told the story of an old time lawyer who would wear a tie, albeit sans suit jacket, when mowing the lawn.  The reason was that a lawyer was a lawyer, a professional, at all times, no matter what he was doing.  As a matter of dignity, he should always comport himself as a lawyer.  He should always behave like a lawyer. He should always wear a tie.  I don’t know what happened when the old time lawyer went swimming. 

We’ve moved beyond those days, where others are impressed with our dignity as demonstrated by our lawn-mowing attire.  Not to the point where we can walk into court in flip-flops, and blaming jurors for thinking we’re so not admiring our brilliance while overlooking our lack of self-respect, but to the point that we can dress as we please after hours without fear that we’ve single-handedly undermined the profession.  Unless, of course, you learned to be a lawyer online.

Susan Cartier Liebel, shopkeeper at Solo Marketing University and Legal Rebel, offers a parable.

Let me set the stage. We are in the middle of historic snow storms in the Northeast.  Everyone is bundled up for arctic chill.  Outrageous outfits, hoods, boots.  Nothing even really matches.  It’s about keeping warm.

Add to this I just had oral surgery which has left me with a goose-sized egg on my jaw in brilliant hues of purple, black, green and yellow.  I also can’t speak very well.  (Ergo, why I am not at LegalTech in New York.)

So, today I finally ventured out to the supermarket to stock up on food because of another ‘dangerous’ monster storm coming.  I confess, with everything going on I looked like a battered Walmart shopper. 

So, Walmart shoppers, you now know where you stand in the scheme of grand appearances.  Bear with me, as Susan uses quite a few words to tell her tale.  At checkout, Susan was overcharged, and questioned it, reaching the exalted level of the 19-ish year old manager.

He told me in a very annoyed and condescending voice the sale price was from last week and shouldn’t have been there but he was going to give me the sale price anyway.  What a guy!

We walked over to customer service where the customer service person looked at my face.  She did that barely discernible stare for a second and then looked away.  The manager started to explain what was going on. He was explaining the problem incorrectly which would have resulted in the wrong credit.  I kept slurring, ‘excuse me’ but he kept talking and talking with his back turned away from me.  Finally I tapped him on the back and said, ‘Hello?  I’m talking to you?’  He continued to talk like I wasn’t there.  I was getting highly agitated now. 

Wait for it…

And as my husband likes to say, ‘you don’t want to get my wife mad.’

I refuse to offer any sexist commentary with regard to this brutally common affectation, and suggest the reader draw her own conclusion.

Finally he left and I started to explain the problem correctly.  The customer service person started to talk to me very loudly and slowly as if I were both deaf and incapable of comprehending.  Now I’m seeing red.  She was doing some convoluted math to give me the credit but kept coming up wrong.  I explained the right way to do it.  She told me she can’t do it my way.  I said fine and then asked her just to see if when she did it my way we came up to the same number.  We eventually did.  There was no pretense of politeness on her part.  No ‘please sign here’ or ‘please swipe your credit card.’  She just bossed me around like a subordinate.  After the transaction was completed she dismissively said, ‘have a nice day.’  And then as I was walking away (drumroll, please) she muttered under her breath, ‘uppity white trash.’

Outrageous?  Yes.  Unwarranted?  Absolutely. Lesson?

Yes, this is still a marketing lesson.

We are correctly or incorrectly perceived, judged, and treated as we present ourselves.  I looked bruised and battered and dressed to unimpress.

As solo practitioners you don’t have the luxury of not dressing appropriately and presenting appropriately in public ever because everyone you meet is a potential client or referrer of clients. They will make snap assessments about you whether you like it or not.  Better they make a snap positive assessment.

This is where the marketing perspective differs from the substantive perspective.  The problem here, according to Susan, is that she didn’t dress to impress either a 19-year-old Sam’s Club (I’m guessing here) manager or his chargé d’affaires, the customer service rep?  That’s not the lesson I see at all. 

That’s not to say that there isn’t a lesson to be had. Indeed, there is, and an important one to boot.  Lawyers are persuaders, communicators.  Communication is a two part process, sending and receiving.  We can send a message any way we please, but if it isn’t effectively received by the other party, the one who we need to persuade to see things our way, than we’ve failed to properly communicate. 

We do this with judges. We do this with clients. We do this with juries.  We vary our words, tones, logic and examples to suit the people we seek to convince.  What happened to Susan wasn’t a matter of her unimpressive attire, but her unpersuasive manner.  She was going to let them have it her way, perhaps because she was “agitated,” and they made her “mad.”  By her choice of words, it appears that she was all about the sending part of communication, focused solely on herself, rather than the receiving piece.  She forgot that the point is to get the other person to do what she wanted them to do.

It’s a common error, but one that renders lawyers who fail to recognize it remarkably ineffective.  It doesn’t matter how angry you are, unless your only goal is a nice, cathartic rant.  If you’re happy enough to vent your spleen and get nothing out of it, then self-obsess and have a nice day.

if, on the other hand, your purpose is to persuade another person to do something, than your focus has to be on them.  Who are they, and what do they need to hear to be convinced that you are right?  This is the substance of what lawyers do, regardless of whether you’re in a bespoke suit or blue jeans.

So Susan was shabbily dressed and the girl muttered “uppity white trash.”  If she had dressed more lawyerly, the girl would have muttered “scum-sucking shyster.”  It’s easier to blame it on the clothing than to be an effective lawyer. Lesson learned.

Nathan Koppel at the  Wall Street Journal Law Blog posts about law school applications being down 12%. 

Say it ‘aint so: Is law school starting to lose some of its luster? Are college graduates increasingly doubting the long-held notion that a law degree is a certain path to financial stability?

Evidently so, according to some early indications.

The University of Missouri School of Law’s admissions coordinator told the school’s newspaper, the Maneater (woah-ohh here she comes!), that applications are down over last year, when the school enjoyed its highest application total since 2004.

Koppel asks whether law school has lost its mojo?  If only.  What it’s losing are those potential lawyers who are smart enough to realize that law ain’t what it used to be.

 Koppel’s take?

Color us slightly confused. Firms are showings signs of life and some have indicated they will hire more associates than in years past. Shouldn’t that fuel more law school applications?

Perhaps the steady drumbeat of media accounts questioning the value of a law degree is starting to filter down to the college ranks. And perhaps graduates are finally snapping to the idea, increasingly held, that there is a paradigm shift in which firms will be less leveraged and hire smaller associate classes for years to come.

As always, though, the problem is the what-else question. Sure, law may be a rockier path these days, but what else is out there for smart, ambitious, probing, argumentative college grads?

I’m here to help, Nathan. Granted, every person who doesn’t apply to law school may have his or her own reason, and since I’m neither privy to each one, nor capable of identifying those students who decided not to apply (if I was inclined to ask each one personally why he or she made the decision), I’m left with no option to but to engage in wild speculation.   So I will.

While certain “outlets” have focused almost exclusively on how many baby lawyers are paid top dollar for bottom skills, the word on the street has gone beyond just the mounting debt, lack of jobs, lower salaries and lousy lifestyle.  None of these things would dissuade anyone from seeking to join a profession, since profession isn’t defined by the guarantee of big bucks. 

The law has become a business.  Lawyers market themselves like laundry detergent, demean themselves for the marginal dollar and are represented in the public eye as fast-talking used car salesmen on television commercials.  Used car  salesmen are offended at being compared to lawyers. 

Having shed the mantle of a learned profession, and reduced ourselves to hucksters, a student pondering his or her future is left to compare and contrast the relative worth of becoming a lawyer to, well, any other job out there.  Consider that the equation works out this way: You won’t earn much as a lawyer, but you will pay huge opportunity costs, both in law school tuition and three years of your life, and potential earnings, lost.  At the end of the road, law degree in hand, used car salesmen will look down on you.

Not a rosy picture.  Worse still, the people who come to realize this are the smarter kids, the ones who bother to figure out the efficacy of law as a career.  While some might speculate that there are still those students who truly want to be lawyers applying to school despite the plethora of reasons to do something else, my guess is that there aren’t too many. 

Few college students have a really firm grasp on what being a lawyer is all about.  They may think it’s like television.  Their mothers may tell junior that she would kvell if only he was a lawyer.  Their friends may suggest that Muffy is suited to the law because she argues about everything.  These are students who think they really want to be lawyers, when they don’t.  Some will figure it out sometime during their third year.  Others will be the lawyers with websites touting their vast experience, deep empathy and high qualifications, twelve minutes after they pass the bar.

My take is that the bloom is off the rose because we, lawyers, have allowed desperation to seize whatever sense of professionalism remained and turned a once honorable profession into just another money-grubbing vocation.

But if it’s bad now, the drop in applications suggests it’s going to get worse.  While there may be 12% fewer students interested in a shot at becoming a star of their own TV commercial, law schools are going to continue pumping out as many lawyers as chairs in their lecture halls.  Hey, lawprofs have to pay the Ferrari lease too, you know. 

Some may wonder whether reduction in applicants is at the top end, bottom end or across the boards.  The best answer to this question can be found by asking who is most likely to figure things out first?  That’s right, the top end.  If law is just another business, but with vastly more expensive barriers to entry, then smart money goes elsewhere. 

So we have the same number of seats, and crank out the same number of inchoate lawyers, but we draw them from the universe of those too lazy or stupid to figure out that profession isn’t what it used to be.  Great.

So now the ball goes back to the rest of us, those puffing the living daylights out of themselves in every possible venue.  Are you proud of yourself, or is getting the next quick buck all that matters?  If it’s not worth cleaning up our act for our own honor and integrity, consider the 12% of students who have decided that they would rather be something other than a lawyer.  Do it for them. Do it for the children.

Having received scores of emails inquiring whether the reference being propagated across the blawgosphere by that yenta, Kevin Underhill at Lowering the Bar, I feel compelled to put the rumors to rest.

Alan Simpson, who was a senator from Wyoming and more recently a co-chair of the president’s deficit commission (don’t remember that? Neither does anybody in Washington) is renowned for his “colorful language.” He reinforced that reputation recently by saying this on CNN :

We’re going to get rid of all earmarks, all waste, fraud and abuse, all foreign aid, Air Force One, all congressional pensions . . . . That’s just sparrow belch in the midst of the typhoon. That’s about six, eight, ten percent of where we are. So, I’m waiting for the politician to get up and say, there’s only one way to do this: you dig into the big four, Medicare, Medicaid, Social Security, and defense. And anybody giving you anything different than that, you want to walk out the door, stick your finger down your throat, and give them the green weenie.

I have no idea what the heck Simpson is referring to.  I am not now, nor have I ever been, referred to as “the green weenie.”  Frankly, it sounds disgusting, which is backed up by the only reliable source on the internet, the Urban Dictionary.

Moreover, if there was any connection whatsoever between me and the green weenie, don’t you think  Marc Randazza would be the  first to know about it? 

Yet again, the clash between technology and the law shows that neither Congress nor the courts can be trusted to handle the unintended consequences.  Via Fourth Amendment, the Eighth Circuit in  United States v. Kramer banged Neil Kramer with a two-level upward adjustment for having used a computer, pursuant to 18 U.S.C. § 1030(e)(1), in the course of transporting a minor in interstate commerce for the purpose of sexual activity.

What sort of computer did he use, you ask?  Was it an Apple? (Oh, please don’t let it be an iPad, please, please, please…)  No, it wasn’t a Mac.  It wasn’t even a PC.  It was (ta da) a Motorola.  More particularly, a Motorazr V3.

Huh?  That’s not a computer.  That’s a cellphone.  Welcome to the world of technology, as envisioned through the eyes of Congress and expressed through the will of the court.

The language of 18 U.S.C. § 1030(e)(1) is exceedingly broad. If a device is “an electronic . . . or other high speed data processing device performing logical, arithmetic, or storage functions,” it is a computer. This definition captures any device that makes use of a electronic data processor, examples of which are legion.

And in accord, the Circuit offers this chunk of scholarly wisdom:

Orin S. Kerr, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L. Rev. 1561, 1577 (2010) (“Just think of the common household items that include microchips and electronic storage devices, and thus will satisfy the statutory definition of ‘computer.’ That category can include coffeemakers, microwave ovens, watches, telephones, children’s toys, MP3 players, refrigerators, heating and air-conditioning units, radios, alarm clocks, televisions, and DVD players, in addition to more traditional computers like laptops or desktop computers.” (footnote omitted)). Additionally, each time an electronic processor performs any task—from powering on, to receiving keypad input, to displaying information—it performs logical, arithmetic, or storage functions.

And you wonder why I pay so much attention to things Orin says?  Of course, Orin’s laundry list was intended to point out the vagueness of the law rather than provide a road map for prosecutors to locate potential enhancements.  The point, however, is swallowed up in the language of § 1030(e)(1), which today reads like a second-grader’s understand of how a computer works.  Actually, a second-grader would have a better grasp; more like a legislator’s understanding.

Furthermore, there is nothing in the statutory definition that purports to exclude devices because they lack a connection to the Internet. To be sure, the term computer “does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.” 18 U.S.C. § 1030(e)(1). But this hardly excludes all non-Internet-enabled devices from the definition of “computer”—indeed, this phrasing would be an odd way to do it.

Of course, the definition of computer was enacted in 1986.  Some of you might not remember 1986 too well, but at the time the internet was virtually non-existent for normal folks,  Online existence was just budding, and to the extent early adopters were involved at all, it was in chatrooms or bulletin boards wholly populated by those who used a particular ISP, such as AOL, Prodigy or CompuServe.

So Congress didn’t address it?  Congress didn’t have the slightest clue the internet existed.  Of course, the law was amended a few times during the 1990s, as the internet emerged, and again as part of the USA Patriot Act, but then Congress wasn’t worried about correcting its overbroad definition of computer, or its omission of the internet, but rather how it could scream terrorism and emasculate constitutional rights at home.  But I digress.

This misbegotten definition might seem to implicate the enhancement if the bad guy brews himself a strong cup of java on his computer to keep him awake while he embarks on his interstate tryst with a minor, but the Circuit explains why we need not fear so broad a reading:

Of course, the enhancement does not apply to every offender who happens to use a computer-controlled microwave or coffeemaker. Application note 4 to § 2G1.3(b)(3) limits application of the enhancement to those offenders who use a computer “to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor.” U.S. Sentencing Guidelines Manual § 2G1.3(b)(3) cmt. n.4 (2009). Therefore, the note continues, the enhancement “would not apply to the use of a computer or an interactive computer service to obtain airline tickets for the minor from an airline’s Internet site.” Id. This is a meaningful limitation on the applicability of the enhancement, but it is no help to Kramer.

Notably, it’s not the statutory or caselaw that offers limitation, but the application note in the Sentencing Guidelines.  Though it’s double non-binding, and readily changeable, it’s all that stands between your toaster and prison.  Not prison for the toaster, but the defendant.

The Eighth Circuit recognized that its decision swept a device that no normal person would call a computer under existing technological understanding, or served to satisfy the Congressional purposes upon which the law was grounded way back in 1986, but was constrained by the plain language of the statute.

But to the extent that such a sweeping definition was unintended or is now inappropriate, it is a matter for the Commission or Congress to correct. We cannot provide relief from plain statutory text. See United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005) (“As more devices come to have built-in intelligence, the effective scope of [§ 1030(e)(1)] grows. This might prompt Congress to amend the statute but does not authorize the judiciary to give the existing version less coverage than its language portends.”).

Don’t let those warm bodies imprisoned while the courts await Congress’ swift and decisive move toward correcting antiquated definitions of technology bother you.  The rules of statutory construction are far more important than any conceivable application of lenity.

But then, a nagging question was raised over at Fourth Amendment blog:

So, how can the government now argue that a cell phone seized in a search incident is not a computer, too? When is a cell phone a mere storage device and not a computer? Only when the government wants it to be not a computer, apparently.

A curious point indeed when one considers that computers received significant protection under the Fourth Amendment, while cellphones are entirely different.

And what does Orin Kerr have to say about this?  He approves.

Seth Godin offers a lot of idea in his role as marketing philosopher, and most offer some germ of wisdom that has the potential to be applied in all walks of life, law included.  Sometimes, however, he comes up with a really boneheaded notion, like this:

Self sufficiency appears to be a worthy goal, but it’s now impossible if you want to actually get anything done.

All our productivity, leverage and insight comes from being part of a community, not apart from it.

The goal, I think, is to figure out how to become more dependent, not less.

Is “autarky” dead, as Godin contends?  Or more to the point, should it be our goal to become more dependent? 

The reason this strikes so close to home is that it’s happening at an alarming rate, that people (and I include lawyers in that group) need for others has grown to co-dependency levels, whether for answers to questions that people could answer for themselves if they exerted minor effort or, worse still, validation from any source available. 

The problem is that many justify their behavior by saying they just enjoy the camaraderie and the ease of getting a little help from their friends.  What’s the problem?  What’s so wrong with being co-dependent?   The problem is that people can’t manage for themselves.  Pull away the security blanket and they crumble.  They need others, just as Godin urges they should, but they can’t manage without them anymore.

The group, or tribe as Godin prefers to call it, is the greatest machine ever made to achieve mediocrity.  For many, that’s a step up from where they would be on their own.  What a sad commentary on people, but the truth is that they aren’t willing to work too hard, think too much, expend a whole lot of energy to do better.  So dependency turns out to be a positive way of life for those who would otherwise firmly hang on to the bottom rung of the ladder.

Others, however, will work hard, think harder and expend whatever energy is needed to accomplish their goals.  They not only don’t they embrace group, but avoid the group’s pressure for conformity.  The group doesn’t want anybody to bust the curve, making the rest of them look bad.  The group can’t tolerate a new, vibrant idea because all ideas must measure up to the lowest common denominator to obtain approval.  This is what dependency brings you.

This isn’t to say that we don’t help each other, cooperate, leverage our own abilities by those of others.  A self-reliant person enjoys the benefits of others when available, and others enjoy the benefits of the self-reliant person in return.  We use each other’s knowledge, experience, contacts, insight to the extent it helps. 

The key, however, is that when the self-reliant individual differs from groupthink, he goes down the path of his own choosing.  He doesn’t sublimate his own ideas to the group, nor does he blame the group when he makes the wrong move.  He assumes responsibility and takes it.

Given the “tribes” that have and continue to form all around us, in the blawgosphere, on twitter or Facebook, maybe LinkedIn or at your office or school, it’s all too easy to wrap oneself up in dependency, slough off personal responsibility and defer to the tribe.  This gives rise to the age of neediness, our willingness to shed our own thoughts, ideas, initiative so that we don’t disrupt the happiness of the tribe.  The ease and validation we receive in return is worth our giving away our independent thought and judgment.

Independent people won’t care what Seth Godin says, which is part of the irony of his push toward the need for dependence.   Codependent people won’t care either, as there was never any chance they would function on their own.  But there remains a group on the cusp of independence who aren’t sure if it’s worth it to work hard, think hard and expend the effort to be an individual.  This group enjoys the warmth of the crowd and seeks its approval, but still has that nagging feeling that they could do better, do more.

Godin’s advice makes perfect sense if you’re sheep, bees, lemmings, and that portion of people who can’t think or function on their own.  It’s not so good for lawyers.  What we do demands the ability to think on our feet, without the approval or advice of the tribe to bolster our insecurities and need for validation. We need to be able to disagree with others when we disagree with them. We need to be capable of providing sound, independent thought.  We need to rise above mediocrity.  This can’t be accomplished while looking around for the warmth of the tribe’s approval.

Enjoy the benefits of the group to the extent it’s actually beneficial, but if you can’t break away from seduction of dependency and exercise independent thought and responsibility, then you’re in trouble.  If you don’t have it in you to tell the tribe to get lost, then you can’t be a lawyer.

Chief Judge of the General District Court in Loudoun, Virginia, Dean S. Worcester, took a stand and raised a ruckus.  From the Washington Post :

In Loudoun County, Chief General District Court Judge Dean S. Worcester ruled last week that he would defy the Virginia Supreme Court because the justices were simply wrong.

The decision stems from a state high court ruling last month that said judges in Virginia may not use an obscure writ to reopen cases of immigrants who weren’t told that a criminal conviction could lead to their deportation.

Hooray!  We love it when a judge shows the guts of his convictions and stares down bad precedent, refusing to become a slave to law he knows to be wrong.  Woo hoo!!!

But wait a sec.  We think this decision is wonderful because we favor the outcome, that defendants who were not informed of the collateral immigration consequences of a conviction should be allowed to make a fully informed decision.  We applaud Judge Worcester’s refusal to adhere to precedent because we don’t like the precedent.  It’s wrong, we say. Wrong, wrong, wrong.

But wrong precedent is a two way street.  What if the Virginia Supreme Court had nailed it, held that defendants whose pleas were less than knowing, voluntary and intelligent, and some trial court judge decided that he didn’t care for the precedent and denied their writ?  Bad judge?  Sure, but is it only because of whose ox is gored? 

Orin Kerr took up this fight over at Volokh Conspiracy.  Not surprisingly, many of his commenters/detractors immediately took the leap of faith toward  Judge Clyde Roger Vinson’s decision holding President Obama’s healthcare reforms unconstitutional.  Others asked less politically charged questions, but made the same point, what’s a judge to do when faced with precedent he believes to be bad law?

Orin answers :

Orin Kerr says:

Dave H asks a hypo:

You are a lower court judge, and your superior court hands down a ruling that explicitly orders a private citizen to allow a solider to be quartered in his house in a manner that was explicitly not prescribed by law. It is left to you to enforce this. What do you do?

I think there are two lawful options: Follow the precedent or resign from the bench. As for which lawful option I pick in this hypo, you have not provided me with enough information to make that decision.

Quibbles with the hypo aside, Orin argues that the only “lawful” options available are comply or quit.  Some others offer snarky options, like never decide or find some dubious fact and twist a decision out of it to reach the desired outcome, but these really don’t address the problem.

I can’t agree with Orin’s contention that the choices are limited to slavish adherence to precedent or the bread line.  Not that I don’t understand both the law’s reliance on precedent and its underpinnings, and how this reliance can work for or against a position with equal impropriety. 

Rather, I don’t view the judge’s function as so ministerial that it’s inherently limited to the rote application of precedent.  If that were so, the law would never evolve.  There are some who believe it shouldn’t, though I’m unaware of anyone who’s pining for the return of Dred Scott. 

This isn’t a matter of judicial activism, per se, as its not in support of judges usurping the legislative function, but rather taking the risk of reversal and ruling as they believe to be the proper interpretation of law despite precedent to the contrary.  The worst that can happen is they get reversed, which can happen even when rulings are less than principled.

The problem with Orin’s options, apply precedent or quit, is that it precludes a judge from exercising judgment.  Judges are not mere umpires at the ballgame, calling balls and strikes based on a well-delineated zone.  Little in the law is quite that clear, and to the extent that judges are constrained to rule in a way that so significantly offends their view of the law, there must be a means of expressing their decision short of resignation.  Quitting just isn’t a sufficiently meaningful way to make a point, and is too extreme a message to challenge a particular bit of precedent.  There are just too many troubling precedents to quit over all of them.

Indeed, the outcome oriented appellate decisions are no more worthy of principled adherence than outcome oriented lower court decisions.  How many appellate decisions are grounded in utterly nonsensical reasoning, defying reality in the trenches or glaringly omitting obvious arguments that would compel a different conclusion?  And what about the rationales that cause lawyers everywhere to laugh out loud?  We know they’re there, and yet they come from a court entitled to dictate how lower courts rule.  What to do?

It strikes me as fundamentally contrary to the judicial function to demand that a judge comply with precedent that he believes to be unlawful.  It’s not for lack of appreciation of precedent, or respect for appellate authority, but for the ability of a judge at the trial court level to achieve the result he believes to be correct.  To expect judges to do harm in their rulings strikes me as nonsensical, and reduces the judicial function to ministerial.

The upshot is that judges will still adhere to precedent, both because of its force of reason as well as the judge’s lack of such a strong principled disagreement that he essentially begs to be reversed.  That said, there must be some outlet for principled disagreement that doesn’t require a judge to quit in disgust or issue an order that he believes manifestly wrong.

Or do we only want judges who are dedicated followers, because if the independent thinkers all quit, that’s all we’ll have left.

Via Adjunct Law Profs, Mitchell H. Rubinstein posts about a New York Supreme Court decision, Finkel v. Dauber, by Nassau County Supreme Court Justice Randy Sue Marber.  The plaintiff sued for defamation stemming from nasty comments on Facebook.

This action arises out of prurient statements posted by the officers of a Facebook group. The group’s information page shows that its name is “90 Cents Short of a Dollar”, and lists five officers and six members, five of whom are the officers…. The listed purpose of the group is “just for fun” and “inside jokes”.

Ninety Cents Short of a Dollar (hereafter referred to as “Ninety Cents”) is a “secret” Facebook group, which has no public content and does not appear on a Facebook member’s profile. New members must be invited by an administrator, here either of the Defendants… Although Ninety Cents lists only six members or “cents”, ten people are listed as “cents” in the group’s “recent news”.

What this means, “Ninety Cents,” eludes me completely.  Perhaps it’s some inside joke, or a cool reference to some movie favored by people younger than my favorite pair of shoes, but the judge doesn’t break a sweat worrying about it.  The comments, however, I get.

The following explicit material is necessary for analysis (spelling, punctuation and typos are as in original):

ooooh i like this group.

BTW the 11th cent, unbeknownst to many, acquired AIDS while on a cruise to Africa (with another member of the group who shall remain nameless). While in Africa she was seen fucking a horse. NICHTE NICHTE eleventh cent! I mean you know . . . I kinda felt bad for the eleventh cent…but then again I felt WORSE for the horse. … (Leah Herz 1/29/07, 5:04pm)

In regards to the 7th cents comments,,, it was not from an African cruise… it was from sharing needles with different heroin addicts, this led to cross “mojination” which caused the HIV virus… she then persisted to screw a baboon which caused the epidemic to spread.

(Jeff Schwartz 1/29/07, 7:43pm)

I heard that the 11th cent got aids when she hired a male prostitute who came dressed as a sexy fireman. apparantly .. she was lonely, because her friends no longer associated with her. her sexy fireman prostitute was her only company. in addition to acquiring aids, this nameless 11th cent aquired crabs, and syphillis. (Melinda Danowitz, 1/29/07, 8:00 pm) also i heard that the stds (sexually transmitted diseases) she got were os bad that she morfed intot he devil in one of our pictures…oops did i reviel the 11th cent?>

(Michael Dauber, 1/29/07, 8:32 pm)

For those of you reading this, what did you think your children were doing online after you went to sleep and they hid in their bedroom playing on the computer?  They write nasty, often dirty, stuff.  Sometimes about others.  Sometimes about each other.  Sometimes about you, but you will never know it because you aren’t a member of the Ninety Cents group.

One might suspect that a judge, being less than personally involved in the doing of an infantile online tribe proving their maturity by typing nastiness on a screen, would be outraged by the content of these comments.  You would be wrong.

A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other.

While the posts display an utter lack of taste and propriety, they do not constitute statements of fact. An ordinary reader would not take them literally to conclude that any of these teenagers are having sex with wild or domestic animals or with male prostitutes dressed as firemen. The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact.

Precisely.  The internet is replete with such nonsense, and no doubt will be stuffed full of more as children continue to lay hands on keyboard and confuse vulgarity with maturity.  It’s going to happen because kids are kids, and by definition do foolish things.

Insofar as the Plaintiff’s counsel suggestion that the posts constitute cyber bullying, the Courts of New York do not recognize cyber or internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyber bullying as a cognizable tort action.

While many, particularly the lawprofs, assume the existence of some generic wrong they call “cyberbullying,” and legislatures are prompted by vague public pressure to make bad things on the internet go away, Judge Marber refused to hop on the bandwagon and manufacture a wrong that doesn’t exist. 

On the legal side, no one has yet come up with  a viable definition such that we can even begin an intelligent conversation about the propriety of criminalizing (or tortifying?) cyberbullying.  On the practical side, Judge Marber has called out this “puerile attempts by adolescents” at vulgar humor for what it is.  Of course it’s ugly and nasty, but nobody believes it’s true.

As is invariably the way of civil actions, all parties demanded summary judgment, because all parties naturally believe there is no issue of fact to be tried and the only question, as far as plaintiff’s lawyers are concerned, to be answered by a jury is how much do they get a third of.  Judge Marber answered the question in a clear, crisp, single word.  Dismissed.  Well done.

If junior can’t handle the rough and tumble world of adolescence on the internet, then pull the plug on the WiFi router.  Better still, tell junior to toughen up, that throughout life people will call him mean names when they are angry with him, just as he calls other people mean names (though he’s not going to admit that to you). 

We would all do a lot better for our children to regularly repeat the old saw about sticks and stones, and stop elevating hurt feelings to mythical status worthy of life and death choices.

Two “requests” arrives yesterday, one from a young lawyer and another from a law student, interested in finding an experienced lawyer to guide them in their quest for success.  The law student cold-called, informing me that he had taken crimlaw and wants to be a criminal defense lawyer.  What should he do?

I chose my words carefully: Walk over to the courthouse and sit in a busy courtroom for a day.  Say nothing.  Just listen.  Go back the next day and ask any lawyer who you think won’t bite your head off if you can work for him for nothing, carry his briefcase and fetch his coffee, just to be around a real lawyer doing real lawyer work.  And if you’re truly ambitious, go to the Legal Aid Society and offer yourself for anything, absolutely anything, you can do to help.

He responded, “What’s legal aid?”

I sighed. “Do you know anything about the actual practice of criminal law,” I asked?  He informed me that he didn’t, which was why he was calling me.  I suggested he wasn’t ready yet.  He asked if he could call me back in a month.  I told him no. Maybe a year.

The young lawyer sent me a humorous email, with the subject line “New Lawyer Looking For Free Advice.”

The subject line may already have you mentally working on a post that involves something about Avvo Answers and Slackoisie, but please hear me out.

I’ve been an attorney now for a little more than two years. Until recently, I worked for a small town “general practice” firm (criminal defense, divorce, and a little of whatever we can get). I just went solo, and I’m trying hard to figure out how I should do things now that I’m the one in charge.

I’ve been reading your blog for perhaps more than a year now, though I don’t think I’ve ever left a comment .  I sometime have put fingers to keyboard thinking I’d tell you my opinion, but usually thought it best to keep it to myself. After all, I have a diploma that says I can charge money for my opinions, so why should I give them away for free?

I know you don’t owe us young attorneys anything, but I appreciate your being willing to give your opinions away for free.  Most of the stuff out there is from marketers, law professors, or law students… I’m glad to have your perspective on things.

Most of your posts about my generation address our weaknesses. However, should you ever decide to write a post or two that started off with something like “If I were a new attorney just starting out, I’d…”, I’m sure it would help a few of us new attorneys. I know I’d love to read it.

Weeks passed, and every once in a while Mr. P. would give me a shot and drop me in the hallway, sending my books flying. The other students didn’t know what to think. More weeks passed, and I was steadily adding new weights to the bar. I could sense the power inside my body growing. I could feel it.

Right before Christmas break I was walking to class, and from out of nowhere Mr. Pepperman appeared and gave me a shot in the chest. I laughed and kept going. He said I could look at myself now. I got home and ran to the bathroom and pulled off my shirt. I saw a body, not just the shell that housed my stomach and my heart. My biceps bulged. My chest had definition. I felt strong. It was the first time I can remember having a sense of myself. I had done something and no one could ever take it away. You couldn’t say s–t to me.

Today a man who invited a boy into the weight room to lift would be called a pedophile. Would you be alone in a room with a young boy? I sure as fuck wouldn’t. Projecting her own Oedipus fantasy, some meddling bitch would call the police on me, explaining that any interest with a young boy must be sexual.