Category Archives: Cross

Category for crosses, to make them easier to separate out from other posts.

Cross: Mike Cernovich, The 800 lb. Gorilla Lawyer

Feb. 24, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Mike Cernovich, Mission Viejo, California criminal defense and civil rights lawyer, pioneer of the blawgosphere with Crime & Federalism, and now, Danger & Play.

Q. You grew up poor. As in, very poor. Your mother suffered from mental illness. You suffered from mental illness as well. And yet, you went to college, went to law school and became a lawyer, which is either the American dream or against all odds. Which is it? How did you manage to break away from a childhood that should have offered you no chance? Are you angry about it?  Looking back now, do you see the obstacles you had to surmount as character builders?

A. Fortunately I didn’t have a serious mental illness, though knowing it was somewhere in the DNA led to some bouts of worry and even what others might define as depression or anxiety. It does occur to me that my eccentricities and online antics make me indistinguishable from someone who is insane.

I have low inhibitions and lack the social constraints most have – likely the result of a low-grade mental illness.

Childhood offered me a lot of chance. Our public schools were good. Yes, I had to fight a lot and was bullied, but that’s life. The fight never ends. Even if you try quitting life, you’ll have bills to pay and a body that’s growing older. You fight or you die, though of course we all die anyway. I’d rather die knowing I gave life my all.

I believed in the American dream. Work hard, avoid trouble, and good things will happen. The American dream is still alive, with some caveats – work hard, avoid college (unless you go for free), avoid marriage until you’re in your 30s, and do not buy a home!

I feel no anger for my childhood. I had two loving parents who did their best.

My dad enrolled me in martial arts when kids bullied me, and he attended classes with me. Did he make money or understand the world? No. We were poor, but rich in love.

I’ve met lots of rich children with “parent issues,” and it astounds me people still talk about their childhood well into adulthood. My dad coached pee-wee league baseball and was always around. He was kind to my mother and never cheated, even though he was incredibly handsome. My mom babied us kids in whatever way she could. They were affectionate and warm people, and still are.

Did it “traumatize” me as a child to visit my mom in a mental institution? Yes, and that wasn’t her fault. Rather than see myself as the victim because my mom was ill, I got over myself. My mom struggled with a terrible condition, yet did her best to raise a family. How did she feel? What was her existence like? What more can you ask of a person?

All that said, my parents were weird. They were deeply religious, and because of my introversion, they were at one time convinced I might be joining a satanic cult. That seems funny now, but Satanic panic (much like the current college campus rape hysteria we are now living through) was real.

Geraldo Rivera and others held specials, talking to “experts” on Satanism. One “warning sign” that your child might be involved in the occult was that he or she spent a lot of time alone. My dad would call me down from my room and make me socialize. I also had to attend bible study multiple times a week in “home churches.”

It wasn’t fun. Duh, introversion!

Looking back, I developed my hatred of the media because they made my childhood more difficult than it needed to be.

Living a good life means re-framing how we view a situation. Could I be resentful of my parents for failing in some ways? Or could I express gratitude for them for doing their best to raise us?

As an example of that thinking, consider this childhood story. My parents sold their wedding rings to buy us presents for Christmas one year. They didn’t want us to go without Christmas and sacrificed in the way they knew how.

When looking at my parents, I am left with a sense of inadequacy. That is, am I doing enough for those I love?

Q. As an undergrad at University of Illinois, you majored in “legal studies,” suggesting that it was always your plan to become a lawyer. Why?  What about the law did it for you? Notably, you were also in the National Guard/Army Reserve since your senior year of high school. Was that because you also wanted to be a soldier, or was that the poor kid’s way out?  And what about the discipline imposed by military service. How did that affect you?

A. My plan was always to be a soldier. I enlisted in the National Guard at 17 as a way to attend basic training before graduating high school. From there, the plan was to join the regular army.

My dad, who never demanded much of us kids, asked me a favor: “Would you please give one semester of college a try?”

My dad’s biggest fear was that I’d end up working a hard factory job as he had. I sensed my choice meant a lot to him.

I always hated school, but did the old man a solid. I loved college. It turned out that it wasn’t school I hated. High school was a kid prison where dreams go to die. Learning is fun. Being monitored like a prisoner is not.

I was a Gerry Spence fanboy and always identified, and still do, with the underdog. Lawyers create change more than anyone else, other than media people. Though we view lobbyists as being in control, the most power exercised over people comes from the entertainment and media industries.

The world was a mess and I wanted to change it, and thought law was the best way to do so.

Life took me on a different path, and so I now fight for the underdog using media methods.

Q. You went straight from Illinois to Pepperdine for law school (which I’m told is one of the most gorgeous campuses in America, on the Malibu shore). Why Pepperdine?  Did you know, going in, that you wanted to practice criminal law, or did you fall into it?  Notably, you did exceptionally well in certain courses in law school, like Constitutional Law, and yet weren’t in the top of the class. What happened?  For a guy who is clearly very smart, what compelled you to be such a bonehead?

A. I was tired of liberal cry babies in college, and there were only two law schools in the country with a reputation for being somewhat conservative – the University of Chicago and Pepperdine.

One day, I looked at a map. “If I go to Chicago (presumptuous, of course, as their admission standards are crazy high),” then I’ll work in Chicago. My entire life will be a 3-hour stretch on a map.

Thus, Pepperdine. It was the right choice. The culture shock hit me, as law school is more like high school than it is in college. Since you see the same people in your section each day, there’s gossip and pettiness. I didn’t like many of my classmates.

I did well in the classes I enjoyed and made the Dean’s List a couple of times. There was no goal to be in the top 10% or to make law review, because who cares? Those were credentials for people who wanted to work in large corporate law firms serving their corporate masters. I wanted to raise hell.

If I didn’t like a class, I wouldn’t grind it out for the grade. I was more interested in attending trial lawyers training skills held by Gerry Spence and writing my law blog.

When I should have been studying for Wills & Trusts, I was watching that Irving Younger series of cross-examination videos and reading books on body language and charisma.

I attended ATLA trial lawyers seminars and CLEs while in law school. When a speaker moved me, I would email him or her asking for copies of their closing arguments, which I’d study. I got a hold of the trial transcript in the Randy Weaver prosecution, where Gerry Spence was the lead defense attorney.

I read more trial transcripts and closing arguments during law school than most lawyers will ever read in a lifetime of practice.

Thus I lived a dual life. To some professors I was a brilliant legal mind. (Three of those professors, including a top gun constitutional law professor, hired me as their research assistant during law school.) To others, I was forgettable.

Q. You took, and passed, the California bar first time out of the box, yet failed to get your ticket punched.  Since you’ve written about it publicly, I need to ask: you were the target of a false rape accusation, back in the days when rape still meant rape. What happened? How did that experience affect you, shape your perspective?  What did you learn about the criminal justice system from having been in its clutches?

A. I was Patient Zero to the false rape epidemic. “Date rape” was common, the media said, and thus there was pressure to prosecute rape cases where there was no evidence of rape.

My case was bogus. I slept with the girl on the living room floor while her best friend was in the room. (Anyone who wants to fact-check me, ask me for a copy of the case file. It’s somewhere in my Gmail, I’m sure.)

The prosecutors were highly sensitive of the media, as was the judge, who once said to my lawyer, “Think about what the media would say if I dismissed this case!”

I was full of rage, anger, depression, and every other toxic emotion. I had followed all of the rules, and my life was “ruined” by a feminist media and legal system.

The biggest lesson of my rape case is to stay far away from the criminal system. Never talk to the police, even if you’re a witness, because who knows…Maybe they need to close a case, and you were there, after all.

You wrote a book review on Ordinary Injustice, and that was my case. I was a kid with such promise who worked hard, but hey, the media might say something rude about the judge or District Attorney. That’s what really matters.

That mindset, that the players within the system matter more than men charged with serious crimes, is yet another ordinary injustice of our day.

Q. During that period, you started one of the earliest and most well-regarded law blogs around, Crime & Federalism. What made you decide to write?  What was it like in the early days of blawging, before the internet was lousy with pundits of little merit? Was there something you were trying to achieve, or did you just want to write? You were never afraid to stake out a position, take on anyone you thought was wrong and speak your mind. Were there consequences? Was it worth the effort?

A. Whenever someone isn’t saying something that needs to be said, I’ll say it. Hence, why I started Crime & Federalism.

Even though I was at a conservative law school, no one seemed to care about criminal justice issues. How can you support a small government while being a boot licker? It made no sense to me then or now. Likewise, how can liberals be skeptical of police yet try growing every other area of government? That’s nonsense. If you give the FDA more power, then the FDA will hire its own federal agents. The Leviathan always grows and always needs guns.

Blogging in the early 2000s was a golden age. Everyone who wrote did so as a hobbyist. Skilled lawyers like you wrote because you had something to say and not because you needed to get clients.

Writing cost me some friends and job opportunities. My name is forever married to controversy.

Until recently I did not realize that everyone is religious.

If you say that “rape culture isn’t real,” you’ve insulted the god of many liberals. If you say, “You can’t support a small government and police state simultaneously,” you’re a heretic to others.

That said, I have no regrets. I met many great people like you and was able to join a conversation that mattered.

Q. How did you earn a living during the period between your first bar exam and when you took it again, and were admitted to practice, in 2011?  It can be hard enough for a new lawyer to survive and support himself, and you were constrained to do so without a law license. How did you manage to accomplish what so many others failed to do?

A. I started my own freelance legal writing company while in law school. I ghost wrote appellate briefs and other motions. (See the answer above about grades!) I developed a reputation as a good writer in law school and never wanted for projects.

It was cool. I wrote the motion to dismiss that successfully got a case dismissed under Ashcroft v. Free Speech Coalition while still in law school. I’ll never forget receiving the email from the lawyer I was working under.

I also developed an expertise for 42 U.S.C. 1983 in law school. Few lawyers understood qualified immunity or other scam legal doctrines that only apply when you sue the government. Word got around, and Norm Pattis would sing my praises to other lawyers, who would then send me work.

My ex-wife always had big money jobs, so I didn’t have the financial pressures typically associated with men. No wife to support, no kids, no mortgage, no Rolex, no need for the “finer things in life,” and I drove a car that embarrassed my ex-wife and made my friends laugh.

How much money does a man need to make? Not much, actually, if you reject the social pressures associated with being what the slave masters call a “real man.”

Q. When you finally started your practice, you focused on criminal and civil rights litigation. You wanted nothing to do with working for a firm, for someone else. What do you have against making money? What made you want to continue the fight for the underdog? You knew only too well how hard and frustrating the representation of defendants could be, yet chose to make that your niche. What were you thinking?

A. I did not enjoy client contact and preferred doing law and motion work. I only worked for solo or small firm lawyers, as they had better attitudes about life.

What is law if not a status game? Think about how many great lawyers are afraid of saying they are solo – as if you need to work for some firm to matter. When a big firm lawyer goes off to start a small practice, they say, “We run a boutique firm.” Lawyers might be the most insecure professionals in the world.

Lawyers are trapped in the status game, and that game leads to sickness of spirit.

The biggest assholes in the legal profession are corporate and other white-shoe lawyers. I simply do not like those people; they are unethical and overbill, and they aren’t fun.

Conventional people bore me, and while it may sound glib, much of my life has been a quest to escape boredom.

Q. At some point, you “morphed” from the Mike Cernovich at Crime & Federalism, to the Danger & Play guy, your latest venture into blogging, where you have taken up arms promoting masculine health, both physical and mental. What happened? Was this a response to your youth, your having been falsely accused of rape? Your growing fat and realizing you needed to get your shit together?  What turned you into @PlayDangerously?

A. When you are falsely accused of rape and see the legal system from the inside as a client and the outside as lawyer, your eyes open up. You realize that everything you had been told about the legal system was a lie.

What other lies have we been told, and what are the source of those lies?

We’ve been lied to about rape culture. If you took the arguments about college rape culture seriously, you’d never send your daughter to college. That’d be like sending her to the Congo. Yet, people claim 1 in 4 women are raped while simultaneously sending girls off to college, and those girls even go walking in public and attend parties. It’s almost as if those rape statistics are made-up.

We have been lied to about gender, especially about a man’s role in society. As a man, you’re supposed to live for everyone except yourself. Make a woman happy, even if she nags. Please everyone, expect nothing for yourself because that’s selfish.

When a man buys a cool car, it’s because he’s having a mid-life crisis. A man can’t have fun or do anything he likes without being attacked.

A man who divorces a harpy is evil. A woman who divorces a man because she “just doesn’t feel it anymore” is a hero. Even a woman who cheats on her husband will be celebrated under the Eat, Pray, Love attitude towards women.

Those were lies resulting from what Nietzsche, whom I read in college but never understood until I became a man, would call the “slave mindset.”

I began examining those lies one-by-one, and as I did, more lies were revealed. I started writing about those lies at Crime & Federalism, though never expected to make a living as a writer.

When moving to Danger & Play, my web traffic grew. People started asking me to write a book and to make donations. A (now) good friend of mine even told me it was possible to make money blogging.

As with other areas of my life, I studied hard. I learned how to build a mailing list, create social media presence that can’t be ignored, write a book that would sell well, and earn money online.

Now I earn more than most lawyers as a writer. That was never my goal, as it didn’t seem possible.

But as a poor kid, I believed in the American dream – and still do. Work hard. Avoid debt. Work two jobs if you need to, and you’ll become a “success.”

Q. While you are still every bit the lawyer, you are also a writer and proselytizer for guys being guys, as reflected in your first book, The Gorilla Mindset. What’s that about? What is the Cernovich perspective that has caught the attention of so many guys? Should men be apologetic for being men? What has happened that this is even a question? Is there a reason why some men find it shameful to be male?

A. Gorilla Mindset is the book I needed but did not exist. How do you control your thoughts and emotions? How do you deal with depression, anxiety, and other toxic feelings? How do you reach the point in your life where you smile and say, “I am enough. I have enough.”

Men enjoyed Gorilla Mindset and enjoy my writing because it’s instructive. It’s direct. “Do this to get that result.”

My writing is also unapologetic. I don’t tell everyone the secret to life is “loving yourself” or any such nonsense. You must take action every day to change your life.

I even tell people they aren’t ready to read my writing yet, which is bracing for many. We are used to being pandered to, to being told our precious feelings rule. When someone says they don’t like my writing, I say, “Great. Don’t read it.” This is upsetting for the weak and refreshing to those who are serious about improving their mindset.

Men are ashamed of being men due to the power of media and societal brain washing. If everyone tells you that you’re a piece of crap, you might one day start believing that. The message from every level is that men are potential rapists, dead-beat dads, and insecure boys with small penises who buy mid-life crisis cars.

I love being a man and my guys discover that being a man is great once you begin living life on your terms by rejecting societal brainwashing and ridding yourself of the slave’s mindset.

Men enjoy my writing because it’s not preachy. “Life on your terms” means just that. If you want to have five kids as a Muslim or Jew or Mormon or atheist, great. If you want to have “Peter Pan Syndrome,” cool. It’s your life. I ask only that you live it with high consciousness.

I write to men as men, which means treating them with dignity and respect. Few others are doing this, as they are caught in preaching to men what it means to be a “real man” – which always, of course, means being a loaded up pack mule who serves an ungrateful wife and never questions The System.

Q. Reaction to your position has been both very positive, and very negative. I’ve seen you characterized as mean, angry and hostile toward women, which is in stark contrast to the Mike Cernovich I know, a smart, calm, thoughtful and exceptionally helpful guy. To what do you attribute this attitude to you? Is it just feminist antagonism toward anyone who doesn’t bend over to be an ally, or is there something deeper going on? How has the gender/culture war affected our ability to be ourselves and still get along with others with whom we disagree?  Is there any hope of overcoming this ever-deepening anger, or are we doomed?

A. What is the truth about me or you or anyone else?

The truth is that people see what they want to see. You know the feeling of telling someone you are a criminal defense lawyer. “How can you defend those people?”

Somehow, one aspect of your life dominates the conversation. You’re not a complicated person with great children. You’re not a husband or businessman or writer. You’re someone who defends those people.

Haters see in me someone who rejects their cult thinking and slave mindset. That is all they will ever see and nothing I say or do will change their perspective.

My writing is from the heart and vulnerable. I’ve written about growing up poor, the feeling of visiting my mother in a mental institution, of being bullied, and about fear and anxiety. I’ve posted pictures of myself going through a hideous skin condition where I looked terrible. (The “moral crusaders” who attack me as evil created a fake Twitter profile to mock me and my skin.)

How can anyone read my writing and conclude I’m a hideous person? That question may have kept me up at night years ago, but now that humans make sense to me, I realize it’s a pointless question.

People are going to see what they want to see, and your goal is to share your story. This means you will find many haters. You will also find people who value you.

You could say I’m a troll, a lawyer, a writer, a man committed to helping others, and someone with deep compassion and the courage of his convictions. They’d all be right and wrong at the same time.

Live your life in three dimensions and full color. Express who you are. It’s not your problem that others can only see in black-and-white.

Cross: Marc Randazza, First Amendment Badass

Feb. 17, 2016 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Marc Randazza, practicing nationwide out of Las Vegas, Nevada, and writing for Popehat and the Legal Satyricon.

Q. Before you decided to wreak havoc upon the law, you were a journalist coming out of college. What made you turn to journalism? How did that work out for you?  What about your journalism career made you say to yourself, “for a journalist, I’d make a damn good lawyer”?

A. In high school, I only had one teacher that I really got along with – my writing teacher. So that gave me an instant interest in journalism.  I thought that Hunter S. Thompson and Ernest Hemingway were great role models.  So, I majored in journalism because I thought it would be a good major for someone who liked to write and drink gin.

There was one problem, though. There was a mandatory class in J-school that met on Friday mornings at 9 AM. That was incompatible with my lifestyle, which commanded that weekends began on Thursday and ended on Tuesday – and no classes before noon.  So, I took a detour, changing my major multiple times.  At one point, I majored in “Social Thought and Political Economy.”  This was a major that only existed at UMass.  Today, you’d call it, “SJW studies.”  As much as I liked the revolutionary aspect of it, even back then, I started to realize that these people were fucking nuts.

I didn’t really learn much in the first few years of college. I was there to drink, do drugs, and chase girls. Despite my requests, UMass wouldn’t give me college credit for that though, so I flunked out.

When I managed to come back, they got rid of that 9 AM course in the J-School, so I went back to journalism. Then, I took a course, Journalism and Law.  That was the first time I was academically exposed to the First Amendment.  And, that was the first time that a professor showed any interest in me, or told me that I had any promise.  Karen List.  She saved my life.  From there, I thought “I want to be a First Amendment lawyer.” I buckled down, and was an A student from then on.

Once I graduated, life took me on a few detours. I decided to work in journalism a bit, writing for Italian newspapers, doing some correspondent work in Rome and Palermo.  I couldn’t really make much of a living at that though, and started writing and working on fishing boats, merchant marine ships, all over the world.  I actually started mailing out applications when I would hit port calls.

So, it was more that I considered journalism to be my pre-law experience than I was a journalist who decided to become a lawyer.

Q. One of your inspirations for going to Georgetown Law was the movie, The People vs. Larry Flynt, which explains far more about you than anyone likely cares to know. What is it about Larry Flynt that caught your attention? Would you rather be the Hustler or repesent him?  Did you have a particular interest in obscenity law?  And with that in mind, a Jesuit school?  Was Georgetown amenable to someone with your interest in the First Amendment?

A. Remember in undergrad that I spent some time in that “SJW studies” major? As a college left-wing radical, we all knew that the Right wanted to take away our free speech rights.

But, around that time, I learned how vicious anti-free-speech feminists and the left could be. I learned that I believed in the First Amendment as a value in itself, untethered from any political polarity.

I saw how the lawyers who represented Flynt, and Flynt himself, stood up for freedom of expression against the left and the right. I also noticed through law school that the cases that were the most constitutionally interesting happened to be ones dealing with erotic expression.

Georgetown was not a place I would call friendly toward the First Amendment. However, that had nothing to do with the Jesuits. In fact, the Jesuits were great – I became quite good friends with those that I spent any time with. The real problem at Georgetown was that it had “social justice warrior” mentality as well. The prevailing view there was that if it was speech that made someone upset, it should not necessarily be protected.

For example, I was drinking in a bar one night with some classmates, and one of them suggested that I run for the Student Bar Association. I had zero interest in the SBA, but he pulled out a copy of the Washington City Paper, and there was an article about penile implants. There was a picture of a guy with a quote that said, “you could hit my penis with a sledgehammer, and I wouldn’t even feel it. – Fred C., unsatisfied penile implant customer.” My buddy tore that page out, slapped it on a sheet of paper, and underneath wrote “Vote for Marco, 100% real, No insensitive dick.”   He said, “there’s your campaign poster.”

I agreed. We put the posters up everywhere on campus, and the Women’s Legal Alliance went around and tore them down, because they were “offensive to women.” Then I got called down to some dean’s office, where I got scolded for being “offensive.” And, in my mind I was thinking, “you were lucky to get in here, just go along to get along… say you’re sorry, and move on…” But, what came out of my mouth was “are you fucking shitting me? This is the eve before an election, and because these harpies are pissed off at their fathers, my political speech is being censored, and you want an apology from ME?” I was asked to leave the room, and I heard the sounds of a pretty heated argument inside, and then the WLA cow had to apologize to me. And, I got my posters put back up.

That’s when I started to realize that I really did want to be a First Amendment lawyer… and that I was likely to have clashes with the left-leaning anti-speech forces as much as I might have to confront the “religious right” as portrayed in the People v. Larry Flynt.

Q. After you got your law degree, you chose to head down to Florida for a masters in mass communications. Were you having second thoughts about law? You wrote your thesis on “vote pairing,” which turned out to be enormously timely in the 2004 elections. What did that do for you? Was it worth the time after law school to get a masters degree?  Has it helped you as a lawyer?

A. Actually, I decided to do the masters there because I wanted to do more academic work in media law – and UF had a great program for that. My undergraduate mentor suggested that I might enjoy working with Bill Chamberlin, a great communications law scholar who was there at the time.   I got offered a fellowship, and thought it would be a lot of fun – and it was. While I was there, I joined the bike racing team. I also got a big grant from the student government to revive the UF skydiving team, so I spent a lot of time jumping out of airplanes, reading First Amendment law, and riding bikes. Who the fuck wouldn’t want to do that for a few years?

I did find that UF was a lot more tolerant than Georgetown. I took a few classes in the law school there, and I was struck by how much better the classes were – professors who actually wanted to know you, and professors who wanted to teach you. The contrast was day and night.

The success of my thesis was shit luck. I started writing my thesis on how evil the RIAA was for trying to enforce copyright law. But, as I did my research and writing, my position on that changed 100%. As I kept looking at the problem, I realized that my view boiled down to what a lot of people think — “boo hoo, people don’t want me to steal.” Once I realized how full of shit I was on that, I lost my passion for the project after a year of working on it.

At about the same time, the “Vote Swapping” thing popped up. I thought it was interesting as hell. It was political speech and coalition building online. It had everything except porn, as far as a fun First Amendment topic. So, I called my thesis advisor and told him that I wanted to change my topic, after a year of work, and three weeks before a major draft was due. He was pretty exasperated with me, for good reason, but told me he would bless the change.

So I hunkered down for three weeks in the J-school computer lab, and ate every meal from the vending machines there. I did not sleep much, nor even see the outside world, but I got a really good draft done. Then, it was perfect timing, because I figured that the 2000 election results would mean that I could just slap on one of two pre-written conclusions.

And then we sat there all night long waiting for the election to be called.

And then the legal challenges started. I was just in the right place, at the right time. All the usual suspects who were going to write about the election ran like moths to the flame on the core issues, leaving a big issue like this as unoccupied territory – allowing a new scholar like me to write and publish on it. I got my thesis published.

Then, in 2004, it looked like this would be an issue again. I updated the thesis for 2004, and got another publication out of it.

The publications I got from that got me on Fox News. And one thing led to another, and the attention from being the “Liberal foil” on Fox plus the publications (one of which got cited by the 9th Circuit) led to me establishing an early name for myself in First Amendment law.

So yeah, I would say it was worth it. The Masters was worth it for a few reasons. Mostly, I learned more about writing and First Amendment law in that program than I did in law school. Bill Chamberlin really took me under his wing, and taught me more about scholarship than I ever thought I could know. I made great friends and connections there. I thought the legal education at Georgetown was mediocre. But, the UF faculty, both in the J-School and the law school, was much more focused on developing us as students, and creating community. I wouldn’t have given that experience up for anything.

And, funny enough, as much as I shit on law professors without legal experience, the best law professor I ever had was Bill – who didn’t even have a JD. But, he is really the one who taught me legal writing, and he was the one who inspired me to publish scholarship for the sheer love of it, and who gave me the skills to keep doing so.

Q. You were an adjunct professor at Barry School of Law for a while, teaching First Amendment, Copyright and Trademark law. How did you like teaching? Did you consider going the tenure route? What was your sense of others in the legal academy?  You’ve been critical of academics for keeping to themselves and engaging in a “circle jerk,” refusing to engage with people outside their clique. What is your problem with scholars?  Are they as smart as they think they are? Are they in touch with reality?  Do they use their scholarly credentials to serve less than savory purposes with their social and political agendas?  And how did they react to your challenges?

A. I loved teaching. But, I knew that teaching at Barry, I was looking at a class full of students who were not going to be treated kindly by the shrinking job market. So, I did everything I could to give them practical training – I wanted them to have an edge. I remembered the contrast between my professors at Georgetown, who seemed to only teach so that they could promote their publications, and my professors at UF who seemed to really want to be “teachers.”

I tried my best to emulate the latter. And, I tried my best to help my students not only learn the theory, but to learn the practice. For example, I made them all bill for their time on their papers, so they could learn how to actually practice law.

Another thing I enjoyed was actually fostering debate and challenging ideas there. I taught a seminar on the Free Exercise clause, and I had a student in there who was an Evangelical Christian – I made no secret of the fact that I am a militant Atheist. When that kid booked the class, he came to me and said he was shocked – that he was hoping for, at best, a B-, because I never agreed with anything he said. I explained to him that he wasn’t graded on how much he agreed with me – but by how well he articulated his own position and how well he knew the material.

I did consider going the tenure route. In fact, I went through the interview process for a few rounds, until I finally decided it wasn’t for me. Two things made me change my mind: First, one of the professors on the committee told me that using current events and a sense of humor in teaching was a bad idea, because I might “trigger” someone. The example she used was how she knew someone who had used the O.J. Simpson trial as an exam question, and a woman in her class who had been abused by her husband ran out of the room in tears – so you never know when you might “trigger” someone.

My response to that was, “give me a break.” Yes, you should care about your students’ experiences and value them. You don’t make rape jokes or jokes about the Holocaust, but that’s because that’s just douchey. But, there is a point where we can’t just say “never include current events” and “never make a joke” because everything will flip someone out.

With a media event that is on every network, every radio station, every website, for all that time – and you can’t handle an exam question that mentions O.J. Simpson? That says something about your mental health. If we are going to temper our sense of humor to that low of a risk tolerance, we might as well hang up any hope of trying to communicate at all. Maybe we should be more careful about who we let in to law school, if someone is going to run out of an exam hyperventilating if we mention O.J. Simpson on an exam.

Second, they told me that they didn’t like how much practical experience I had, and they wanted me to cease practicing if I was going to teach. I said “what sense does that make?” They explained that the preference was for professors who had not been “tainted” by more than three years of practical experience – and I was already past that. I told them that there was no way I was going to cease practicing, because that was the greatest source of teaching material you could ever have. That did not go over well with all of the committee.

I found my colleagues at Barry to be pretty cool, but in general, I think only about a quarter of full time academics have any business teaching law students anything. The whole academy is built on bullshit. When you have law professors who never took the bar exam, and the average actual experience practicing law is less than three years, what is this entire institution based upon?

Q. You are renowned for your cautious use of delicate language, particularly the word “fuck” wherever possible. Some have called you vulgar, but others say that you’re making a point, that words are just words, and you’re doing what Lenny Bruce tried to do in the ’60s, to inure people to words they find offensive rather than to censor words. Which is it? Are you a foul-mouthed cretin, or is there method to your madness?  Is it helping, or are things getting worse with the efforts to silence “hate speech,” micro-aggressions and offensive language?

A. Lenny Bruce said “Take away the right to say ‘fuck’ and you take away the right to say ‘fuck the government.'” I love that.

And, I know that I am often using “salty” language. I did not grow up “upper class.” I grew up in a fishing town, the son of a guy who fixed air conditioners, the grandson of fishermen, in a very working class town. “Fuck” is punctuation for us. I love how these soft-handed academic pussies have a big problem with me speaking in my home vernacular, but they’d call anyone racist who complained about someone from a black neighborhood throwing in a little bit of their vernacular. Or if someone shit on someone for tossing in a little bit of Yiddish into their speech. You say “shmuck,” I say “fuckhead.”

I wish I could say that I’m half the fucking visionary that Lenny Bruce was, but I just speak from the heart, and sometimes that heart says “fuck you.” I spent a few years trying to be someone I’m not. I tried using soft academic language. I tried “code switching.” I didn’t like it. I’m a working class Sicilian from a fishing town in New England, suck my salty cock if you want me to talk like some fucking pussy from wherever the fuck land.

Does it help? It helps in some ways. For example, I have never met anyone who said, “I’m ambivalent about Randazza.” Yes, it turns some people off. Well, I think those people would be turned off by me after they got to know me better even if I toned it down. I know it turns some people off, but I’m pretty sure that there’s nobody in the world who dislikes me who would like me if I’d just stop using indelicate language. I don’t know anyone who is ambivalent about me.

At the same time, I get mail from people who appreciate that I bring the law down to a more proletarian level. You know, there was a time when they burned people at the stake for translating the Bible into English, because “the people” shouldn’t be reading the word of god – it should be given to them by the priests.

So, I understand that the academics think that maybe only their over-privileged pussy students should learn the law from their over privileged namby pamby mouths. But, “sir, I am incredulous as to your disingenuous notion” is how they say it. “You’re full of shit” makes a lot more sense, and gets right to the point.

Q. As a lawyer, you’ve been on both sides of the copyright debate, going after copyright trolls like Righthaven, but also seeking to enforce copyright on behalf of your clients, most notably in the porn industry. Is this just a lawyer doing his job, or is there a principle at stake here? Which side do you back, the enforcers of copyright or those victimized by the trolls?

A. I don’t think that copyright is a “you’re with us or you’re against us” formula. I realize that there are a lot of fucking idiots out there who are religious zealots when it comes to copyright. Remember my original thesis? I thought, “copyright bad.” Why? Because I loved downloading gigabytes worth of “free” music from Napster, and I was pissed when it had to shut down.

And so as I attacked that issue, I realized that the “freetards” are really full of shit. Yeah, copyright maximalism sucks. I hate the fact that copyright terms are so long – I think they should be subject to a 25 year term and a 25 year renewal term, which can’t be bought or sold until after the renewal. I think Fair Use should be beefed up to a real goddamned right. I think that orphaned works should automatically drop into the public domain.

At the same time, I think that rampant piracy sucks. It hasn’t just hurt the big companies, who I give no fucks about. Its hardest impact has been on small producers. Ultimately, it means less small producers, less small productions, less diversity of thought. So, every time some fucking asshole steals and redistributes a small-batch film, its not like they’re stealing a hamburger from McDonalds, its like they’re stealing an artisanal dry aged Elk steak from some one-location restaurant. You shouldn’t do either, but if the food industry had a 20% chew-and-screw rate, do you think we would have anything but chain restaurants?

That’s going to be the ultimate result from unchecked piracy. Big companies will still be able to extract money from their businesses – but new entrants and diverse entrants will be locked out.

When it comes to copyright, I refuse to take a “side” on the enforcement vs. defense divide. I see no “divide” there. The law is the law. I think that some aspects of the law should be changed, but I’m not the legislature. I enforce the law on my clients’ part when I am called upon to do so, and I defend my clients when called upon to do that.

In Righthaven, I thought what they were doing was wrong, and a perversion of copyright, so I greatly enjoyed defending that set of cases. On the other hand, I understood that the news business is tanking because it can’t monetize the way it could before.

I’ve encountered plenty of crybabies who cheered when I defended Righthaven victims, but got very bent out of shape when I enforced copyrights on behalf of porn companies. What they didn’t see is that I actually defended a number of “torrent” cases too – when I thought there was an important principle in play, or just when a client called upon me to.

For example, in one case, a defendant called me because he knew that I did a lot of these cases for the plaintiffs. He presumed that since I did the plaintiff side a lot, I’d know the playbook well. He was right, and I defended him quite well. I can’t discuss the actual settlement, but lets just say that he was quite grateful. In another case, I took on a client pro bono because I thought that he had a very interesting argument. The defense lawyers all thought that dividing defendants on improper joinder arguments was the best strategy – I thought that keeping defendants together allows them to join forces. That worked well in that case as well, as it wound up getting my client out for nothing.

On the other hand, I brought lots of torrent cases on behalf of a client because, as I said in the press at the time, that client was losing money left and right because of widespread piracy.  The company demanded that I put an end to it. I did my duty, and did it damn well, and it laughed all the way to the bank. They’ve subsequently said that they didn’t want to do those cases, and that it was all my doing – now that this narrative suits them. But, I’ll say here and now that this is total bullshit. In fact, I’m the one that shut them down, when I felt thought it was a bad idea.

Q. You were general counsel to a gay porn filmmaker for quite a while, until the relationship went south when you complained about their shooting a movie in your law office. Any qualms about your choice of client? In dealing with First Amendment law, there is certainly a concern in assuring that broadest possible use of free speech and expression be maintained, but that doesn’t mean you have to get too cozy with the porn industry. In retrospect, would you do it again? Is there anything you would do differently?  You got very close, some would say too close, to your client. Have you learned from that?

A. Yes, I was. I have no qualms about having chosen to represent a porn company. That company in particular? Yes. I recall wanting to fire them as a client before being their GC, but before I did so, they made me a very lucrative offer to come in as GC. I was a new dad, and the offer was too good to turn down.

Then, I actually got to be very good friends with the CEO, which put me in a bad spot. I tend to have personal friendships with my clients, and that led me, at least then, to not do “cover my ass” letters on every conversation. When you eat 5-6 meals a week with someone, you tend not to then run back to your desk and write a letter confirming the conversation. It just comes off as you’re spending more time covering your ass than actually doing work.

Of course, sometimes you have friends who you see acting like complete douchebags, and you think, “I’m different, I’m his friend.” That’s delusional. If they act like douchebags to everyone else, it will eventually be your turn.

Since that experience, it doesn’t matter to me if I’m representing a family member – they get CYA letters. Also, I’ve decided that the moment I realize that a client is trouble, I get rid of them. And when I have friends who act like douchebags toward other people, I get rid of them – because I don’t want to wait for it to be my turn again.

Q. You’ve handled some very well-known internet cases, including one in which I was a defendant, Rakofsky v. Internet. But that has also put you in touch with some of the internet’s craziest denizens. Were the cases interesting? Was it cool to become an internet legend as a First Amendment Badass? What about the crazies? Did you realize just how many crazies would go gunning for you, and to what extremes they would go? And not just you, but your family. Are the crazies on the internet out of control?

A. The cases were really interesting. I loved the Rakofsky case, not so much because I liked what was happening, but it allowed me to represent a bunch of people who I really respected. When the “gang of 15” or however many of you hired me, most of that group of defendants were people I looked up to, mentors of mine. When people who you admire say, “I want you to be my lawyer,” it really gives you a lot of confidence. But, it also kicked me in the ass to be a lot better. I didn’t have the luxury of not being on my A++ game every day in that case.

The other high profile cases I’ve done have really been enjoyable, not because of the attention, but because I get calls from young lawyers who say, “can you spend some time teaching me?”

Being an “internet legend?” I don’t even know what that means. Sure, I think it is funny when I do something like the Glenn Beck case or the Julien Blanc takedown or sticking up for Amy Alkon against the TSA. But, remember that for every bit of attention you get, you get negative attention too. So, yeah, being well known means being well known by everyone – not just people you like.

Along the way, I picked up stalkers, one of whom famously tried to extort me, and that lunatic is still in my life. I’ve got a few others who are obsessed with me. Eventually, you just let it roll off your back. It does suck when desperate lowlives target your family, and I realize that I’ll have people like that around for a long time. It isn’t just the well known ones either. When you work as a high profile lawyer, there are a lot of desperate losers out there who would suck poison from Hitler’s dick to be in my position, and they get jealous and bitter when they see you successful. Then they start attacking you.

I won’t say it didn’t bother me at first, but eventually it sorta just becomes background noise. In fact, sometimes it even helps your career. For example, recently someone wrote a hit piece on me, hoping to hurt me. Then, I got hired by a really great client. I asked them what made them call me, and they told me, “I read this really stupid article about you, where the author clearly had sand in his pussy about you, so it made me do more research, and I decided that we wanted you on our side.” So, sometimes I have to thank the douchebags in my life.

Q. You were involved early in the move to end revenge porn, by going after Craig Brittain and Chance Trahan, who ran the notorious website, IsAnybodyDown. Since then, a cottage industry has arisen, led by a couple of law professors, together with a small organization called the Cyber Civil Rights Initiative. As someone who started the fight, where do you stand on their goal of criminalizing revenge porn? They also argue that male bullying and harassment silences women’s voices, so it too must be stopped. How does that square with your view of free speech?  They’ve also called for the elimination of Section 230 of the Communications Act, the “safe harbor” for websites, so that they can penalize websites for content posted by others. Do you agree that it’s time to end the safe harbor?

A. Regarding revenge porn, I took down three of the biggest purveyors of that shit. I made nothing on the cases, and never expected to. I have given hundreds of hours of pro bono time to the victims, and I’m really proud of that. I really don’t think that the “Cyber Civil Rights” crowd has their heads on right. They do have some brilliant women in that group, some of whom I call friends. I really admire Erica Johnstone, for example. But, I think collectively, that group is awful. It is more of a group devoted to hating on men than solving problems. For example, one truth they refuse to acknowledge is that most revenge porn gets posted by women. Most online harassment comes from women. But, they have a few dipshit academics who taught them to just re-define words to mean what you want them to mean, and then an email that says “hi” turns into “harassment.”

As far as bullying silencing women’s voices? I’m not entirely at odds with that notion – but what I disagree with is the lie that this is a male vs. female thing. Come on, the biggest fucking lunatics on the web are women. Men get bored really fast. Women will focus on a target for years. I’ll say this, I haven’t had a straight male stalker. It isn’t men who attacked my wife and my three year old daughter. And it sure as shit wasn’t any “cyber civil rights” harpy that spoke up and said it was wrong when it happened. Not one of them. So, while I do like a few of its members, I think that organization has no credibility, and no honor.

That all said, I do think that Section 230 goes too far. I defend the living shit out of my clients who depend on it, but before I take a 230 client, I have a talk with them – I make sure that I am convinced that they don’t just say, “fuck you, Section 230,” when they’re confronted with real abuse. Unfortunately, a lot of the Silicon Valley companies refuse to have that principled of a position. And, when they just didn’t give a shit, it was bad enough. But, they’ve lately started taking the Cyber Civil Rights position – meaning, if it is a woman complaining, they’ll shut it down.   But, when it’s a woman or a minority doing the harassing, that’s just “redistributive justice.” So, now 230 went from a shield for companies that didn’t give a shit, to an actual political tool. That’s not a good thing.

Q. Your litigation approach comes from Caesar’s maxim, murum aries attigit, “the ram has touched the wall.”  One might call that a scorched earth approach, that once someone has pushed the button, there is no backing off and you go for broke. Where did that come from? It’s a bit of an inflexible approach to litigation, but one that could well scare the crap out of your adversaries if you’ve got the chops to pull it off. Has it helped or hurt you? Do you sometimes wish you had taken a softer, more flexible approach to litigation? Has your “tough guy” approach to litigation ever turned around on you and bitten you in the butt?  Do you have any regrets for going out on a limb to be that First Amendment Badass that the internet loves (or hates)?

A. Murum Aries Attigit. That phrase gets batted around a lot with my name attached to it. But, what does it really mean?

Caesar described the concept in Commentarii de Bello Gallico. It literally translates to “the ram has touched the wall.” The “ram” meaning a battering ram, and “the wall” meaning a besieged city’s outer defenses. Under Roman Law, a general had the right to offer any terms to a besieged city. As long as the city submitted, the terms could be quite favorable. The Romans were quite civilized in this regard, and dispensing quite favorable, even beneficial, terms was not uncommon. Why destroy a city if you can turn it into an ally?

Of course, these terms were not available indefinitely. Diplomacy ended once the first battering ram touched the city’s walls. Then, the general was legally prohibited from offering any terms except complete destruction.

It is well known that this is my personal motto in litigation. I announced it in Righthaven, for example. And, the rest is history as the company now no longer exists.  I announced it in the Roca Labs case.  It didn’t work out well for them.

If only they had accepted the really reasonable terms they were offered before the ram touched the wall.

But my most proud achievements while employing Murum Aries Attigit are those that nobody will ever hear about. They are cases where my clients authorized me to offer ludicrously generous terms, the other side accepted, and no metaphoric blood was shed. I wish I could talk about those, but usually they come along with confidentiality agreements. Suffice to say that I love those. Client gets a four figure bill instead of a six figure one. About half the time, the opposing party winds up calling me to represent them within a year or two.

As an example, I once represented a party that got a ridiculous defamation demand. My personal desire was to utterly destroy the other party — and I had all the tools with which to do so. The allegedly defamatory statements were quite problematic for the plaintiff, but I had a full report from an official source proving each of them exactly true. The report was a public record but not one that the plaintiff thought we could find. We found it. Nevertheless, I am proud to say that we ultimately settled the matter, with my client even writing a check to the plaintiff. Why? It was smart. The client paid less than the cost of a motion to dismiss, or even a small discovery skirmish. The plaintiff’s lawyer could not believe his good luck in not getting dashed against the rocks. Client thanked me.

Of course, there is always the fool who thinks that favorable terms are a sign of weakness, or that some terms are not favorable enough. “Just walk away” is often something that gets put on the table. But, we always have a Stercus Caput who will think that Murum Aries Attigit means blind aggression, or even that it contains a component of anger. Nothing could be further from the truth

Murum Aries Attigit is an excuse for diplomacy and mercy, not a philosophy of “take no prisoners.” Anyone who sees it that way is an idiot.

As far as going out on a limb… I have mixed feelings. The moment I became a somewhat public figure, I realized that it would be hard to go back. Back in 2013, I moved to Italy for a while. All of a sudden, nobody knew who the fuck I was, nobody was impressed by me. I was anonymous again. And, I sort of liked it. But, I look at what I do as a calling, and I don’t get to choose whether I’m in that gladiatorial sand or not. This is the path that fate put me on, and I’m not likely to get off it any time soon. Do some people hate me? Sure, so what? Fuck them. You think I give a fuck about some cowardly little shit who hides behind a VPN to say snarky shit about me?

You know what I like about my life? There’s not a motherfucker in this world who ever says, “I’m ambivalent about Marc Randazza.” That is what scares me… people being ambivalent about me.

Has it bitten me in the ass? Sure. You can’t win every case.

The first time I had a big loss, a friend sent me this quote by Theodore Roosevelt:

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.

That really resonated with me. Even when I’ve taken a beating, I remember that and I know that I’m not ever going to be the sorry sonofabitch who knows neither victory nor defeat, and I won’t ever be called “timid.”

Cross: Josh Kendrick, The Defense Works Late

Feb. 10, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Fault Lines contributor and criminal defense lawyer, Josh Kendrick, of Kendrick & Leonard, in Columbia, South Carolina.

Q. In some of the earlier Crosses, a theme of lawyers who studied hard science, particularly physics, began to develop. But you studied marketing at Clemson. Did that have anything to do with your deciding to become a lawyer?  Did marketing have an impact on your ability to study law?  Do you find it makes you a more persuasive lawyer?  Does your marketing background help you to “sell” your legal services at a time when so many other young lawyers are struggling to survive?  And given that you have the marketing background, what about all the “marketing” advice being given to lawyers. Good or bad? Helpful or harmful?

A. Studying marketing didn’t help me study law. It might have gotten rid of some pressure, because I could have gotten a real job if I flunked out of law school.

The only real advantage it gives me in practice is from all of the business classes I took. I understand enough of the basic business concepts that I can figure out how to run our firm like a real business, which is something a lot of lawyers neglect. Avoiding being broke is a big part of small firm practice.

I am not anti-marketing, but the marketing of a law firm is very different than any other business. The advice being given to lawyers on marketing is bad and it’s harmful. That’s because it misses a fundamental part of marketing. Marketing involves selling a product to a customer.

That’s a simple concept with Coca-Cola or Nike shoes. Most consumer products don’t change. They aren’t all that necessary to your life. And at the end of the day, the difference between brands really doesn’t matter much.

Lawyering is nothing like that. Every situation is different. Each case, even if it looks identical, will have differences that affect the way it needs to be handled. The way a case is handled is the product being sold by a lawyer. And it is constantly changing. It has to change. There is no formula to representing real people with real problems. A good lawyer has to be able to adapt legal representation to each unique client and their unique problems.

Marketers miss that completely. They think lead generators or expensive websites are going to rocket a lawyer from the bottom to the top. And lawyers seem to fall for it repeatedly. They put no thought into the product or the customer. They assume it’s all the same and can be sold the way new cars are sold.

Real marketing involves getting the right product to a customer in a way that benefits both parties. People think marketing is getting your name to the most people and having the widest exposure. That’s only half of it. If the product sucks, the marketing is a waste.

Q. Your first job out of University of South Carolina was as an associate to Debra Chapman in Columbia, South Carolina.  Why not prosecution or indigent defense, as for so many other lawyers interested in practicing criminal law?  Was it your plan to do criminal law? Were you dedicated to being a defense lawyer, or did you just fall into it?

A. During my first year of law school, I realized I hated it. I wanted to drop out. Apparently, they don’t give you refunds based on “this sucks,” so I stuck it out. I started working for a guardian program, going to court with abused children and speaking on their behalf. That sent me to the courthouse.

I immediately knew court was where I wanted to be. It was interesting. It involved people. Unlike law school, the law wasn’t some abstract theory at the courthouse. It was a real thing with real effects on people in trouble. The whole idea of practicing law made sense in the courthouse.

I got a job for the summer after my first year of law school as a law clerk with the solicitor, which is what we call state prosecutors in South Carolina. I liked it, but I am too anti-authority to be a prosecutor.

Debbie Chapman offered me a job at the end of the summer as a law clerk at her defense firm. I loved it. Criminal defense was dirty and exciting and frustrating, but it involved real people with real problems. Watching how those problems got solved hooked me. I knew that was the only thing I wanted to do.

I might be richer if I had picked a different area of law. But my happy hour stories are always better.

Q. Chapman’s practice sounds like it’s pretty high volume, which means that your time was spent running around to cover cases rather than being able to give any particular case a great deal of focus. What did you take away from that experience? Did you have the time you needed or did you find yourself stretched too thin?  Did you get to try cases? Were you mentored through your early years or thrown into the deep end and told to swim?  Looking back now, with your decade of experience since your first job, do you see things you would have done differently, better?

A. Covering a bunch of cases and focusing on one case aren’t mutually exclusive. It just takes a lot of work. Criminal defense lawyers don’t clock out at 5. I worked late and long hours. I was never stretched too thin, I just worked more. That was the most valuable lesson I took away from that job; you are limited by how hard you are willing to work. Our firm doesn’t have a lot of limits. We have fewer cases now, but there are still times we work early in the morning, late at night, and every hour in between.

I tried a bunch of cases. At the time, I thought I had been thrown into the deep end, but I now realize I was being mentored. Debbie let me do a lot of things on my own, but looking back, she was always keeping a closer eye on me than I thought. I received a first-rate education from her on dealing with everything from clients to judges.

Debbie mentored me by recognizing what I could do on my own without letting me screw up anybody’s life.

But two years out of law school, standing in front of the Fourth Circuit Court of Appeals for oral argument in a search and seizure case, it definitely felt like the deep end. I wouldn’t change a second of it, though.

Q. After three years, you went solo. Why? Was it your choice to go solo, or was it something that happened to you?  How did clients find you? What did you do to survive at first, to establish your practice?  What kind of cases came to you, and how did you keep clients coming back?  Much is made about the things a new solo practitioner “has to do” if he’s to survive. What did you have to do?

I think Debbie and I just decided it was time for me to strike out on my own. She didn’t want a partner and I was ready to be more than an associate. But it was friendly, because she referred me my very first case.

I had handled a lot of cases for Debbie and a lot of people knew me. They referred me cases when I went out on my own. I took a lot of court-appointed cases and those clients ended up referring me more business.

The most important thing I did was find office space with older lawyers that knew what they were doing. Theresa Johns, a solo practitioner in town, rented me an office. So I was on my own, but she had years of experience and was always willing to share with me. She gave me cases, helped me figure out what to do on my cases, and continued mentoring me. Theresa helped me with everything from understanding how to try a murder case to understanding how to budget my office expenses.

There is no secret to surviving. You have to work very hard. I took cases for very little money. I swallowed my pride. Most importantly, I learned from lawyers who knew what they were doing. You have to find mentors. That’s the key to survival. It’s too dangerous to figure out the practice of law on your own.

Q. One of the best, and worst, experiences in a criminal defense lawyer’s career is his first jury trial. What was yours?  Was it the usual experience of fear and trepidation?  What went through your head as you stood up for jury selection, for your opening, for your first cross-examination?  Going in, did you think you were ready?  Were you? When you look back now, what would you have done differently?

A. The first time I tried a major case, I sat at the defense table and prayed the judge’s clerk would come out and tell us the judge was sick and trial wasn’t starting. I was as nervous as I have ever been. I get the same feeling before every trial, and I have done countless trials. But when that feeling goes away, I think it will be time to stop trying cases.

My first trial was a nightmare. The guy was accused of repeatedly raping his little daughter. He confessed to it and still insisted on a trial. One of the most experienced prosecutors in the state was on the other side. Debbie gave me first chair and told me to figure out a defense.

As soon as I stood up to give the opening argument, I lost the fear. I loved talking to the jury. By the time I was cross-examining witnesses, I wasn’t scared anymore. I loved every second of being in a trial. No happy ending for the client, though. We got our asses kicked all over the courtroom. He got a lot of jail time.

I don’t remember if I thought I was ready going in or not. But I know I wasn’t. That is the most valuable lesson I learned. No matter how much you prepare or how hard you work, things will happen in a trial you can’t predict. Being able to deal with those surprises is what makes a good trial lawyer.

Q. Three years ago, you went from solo to a two-person firm, with your partner, Christopher Leonard. Partnerships are like marriages, minus some of the benefits. What made you decide to partner up?  How is it working for you?  Much as partnerships offer synergies, someone to help out when you’re busy on trial and somebody to talk to, there are also times when conflicts arise. Were there any downsides to going from solo to partner?  Have there been any days when you think to yourself, life was easier when it was just you running the show?  Or has it been better to know that there is someone there for you?

A. Chris was my law clerk for a few years when he was a law student before he came to work with me as a lawyer. We have a very, very different partnership than most lawyers. In the years we have worked together, we have never spoken a cross word to each other and haven’t had any conflicts. That sounds hard to believe, but we just don’t disagree on much. And when we do, it’s never an argument.

There aren’t any downsides to our partnership or any days I wish I was on my own. That is a product of the thought we put into the partnership. A lot of partnerships between lawyers fail for a variety of reasons, but all of those reasons stem from failing to think about what you are doing. You have to find someone you can work with through stunning defeats and famous victories, as well as everything in between.

Chris and I have been dead broke, lost big cases, gotten sued, and gotten bar complaints. But we have also won acquittals, settled big cases, and had a blast practicing law. We love our law practice and all the highs and lows that come with it.

I get along with Chris. People underestimate that. If you are going to spend your whole working life with someone, you should probably like them. We have similar work ethics and similar views on the practice of law. I am a better lawyer because of the partnership and I assume Chris is too. At the end of the day, that is best for the clients, because nearly every case gets looked at by both of us at some point.

Q. You haven’t strayed very far from your South Carolina roots, and from what we hear up north, it’s a pretty tough place to do criminal defense.  Have you found that to be the case? Are the cops tougher, less “benevolent” toward criminal defendants, than elsewhere?  What about the local judges, particularly the non-lawyer judges?

A. I guess I don’t really know, since I have never practiced anywhere else. But it sure seems like this place is tougher than most. It’s not the cops, though. It’s the jurors. They are the ones that are tougher on criminal defendants. I don’t ever feel like “beyond a reasonable doubt” is getting through to jurors.

Non-lawyer judges are interesting. They can be very tough on criminal defendants. One time I had one deny my request for a jury trial. I faxed him a copy of the constitution and he made me come down to the middle of nowhere the night before Thanksgiving. I don’t think the meeting went the way he expected. I got my jury trial. And later worked out the case, because I think he figured I was too much trouble to mess with.

A lot of them are fine. They learn the law and try very hard to be fair. But you can find yourself in a lot of awkward positions. Nobody wants to fight the judge, but you can’t let clients get screwed because you want life to be easy.

It’s probably harder to practice law here, especially compared to big cities. But this is where I live, so I don’t whine about it too much. I would love to try cases in other places eventually.

Q. Unlike most criminal defense lawyers, you’ve made the transition from a local criminal defense practice to a federal practice as well.  As you no doubt know, they are very different animals, from the language of the courtroom to the clean marble floors. How did that happen? Did you have any help making the transition, or were you on your own?  If state practice is hard, federal practice can be overwhelming, given that the feds typically bring cases with overwhelming evidence and inordinately favorable law. Did you find it difficult, frustrating to fight the feds?  Are you happy to get a federal case, or does it fill you with dread to know what you’re facing?

A. I love federal court. I am thrilled to get a new federal case, whether it’s a CJA appointment or I get retained. But yes, it can be frustrating to fight the feds. A lawyer I was trying a federal case with once described it like playing baseball, except you don’t get a bat.

When I started working with Debbie, she had a big federal practice. I was always involved in federal cases. I was doing federal appeals right out of law school. I knew the guidelines and understood the law early on. I saw how hard it was but I love a challenge.

Federal cases are a challenge. The stakes are high and usually the prosecutors and judges are very smart. The statutes and case law are complicated. Jurors get wowed by all those marble floors. The agents spend years amassing a crushing amount of evidence against clients. Everything is stacked against you. It’s high-level law. But that’s why I love it. If you aren’t trying to practice at the highest level, I don’t know what gets you out of bed in the morning.

Q. You also do some work outside of criminal defense, as do many solo and small firm lawyers. What’s your preference?  Do you enjoy doing, say, a personal injury case or is it just business?  Some criminal defense lawyers consider non-criminal matters “easy,” because they’re up against lawyers without nearly the trial experience they have, and the outcomes don’t involve anyone spending the rest of their lives in prison. And some find it’s a good break from the life-or-death nature of criminal work. What’s your sense of doing civil litigation? What about the paperwork, which is usually far more extensive than in criminal defense?  Is there a difference in the kind of lawyer who does civil work as opposed to criminal? Which do you prefer?

A. Criminal defense is my favorite, but I love a good personal injury case. I started out doing civil cases thinking it was not as stressful as criminal work because no one was going to jail. But that thought was quickly discarded. Civil clients can have their entire life ruined by medical bills, loss of jobs, and permanent injuries. The stakes are different, but often just as life-changing for a client.

The paperwork sucks. And there aren’t a lot of surprises. By the time you get to the end of a civil case, you have deposed everybody and papered each other to death. Trials aren’t all that exciting, because everybody usually knows what everybody else is going to say.

There are plenty of nice civil lawyers that are easy to work with. But there are a lot more jackasses than there are in criminal practice. I don’t know why. It’s completely counterproductive to go out of your way to be a jerk. It also makes you look like a fool.

Lawyering has to be one of the only jobs where we reward a person for being a bully. But I will always look down on some asshole who can’t act like a human being. Being primarily a criminal defense lawyer helps, though. It’s hard to intimidate a lawyer who has gone against prosecutors that could eat most civil lawyers for lunch.

But there is no doubt I run into the rudest, most obnoxious lawyers in civil practice. I think criminal lawyers tend to be more confident in their abilities, which makes us more comfortable in our skin. People who scream and yell and won’t be civil know that at any minute they could get exposed as a phony.

Q. You decided to take your life in your hands by writing for Fault Lines. Why?  Were you always a writer hidden in a lawyer’s body?  Did there come a time when your experience in the trenches compelled you to need to get out and call bullshit at what you were seeing around you? What made you decide to take the chance and put your thoughts out there?  How has it worked out for you? Are you finding that you can make a difference? How have your fellow lawyers, judges, clients viewed your writing?  It’s a lot of work. Is it worth it to Josh Kendrick?

A. Two reasons, one selfless and one selfish.

A civil lawyer once told me I must really enjoy doing criminal trials, because the system is so slanted in favor of defendants. From the second a cop looks at a guy suspiciously all the way up to the United States Supreme Court, there is not a single bit of the criminal justice system “slanted in favor of the defendant.” What a profound misunderstanding of criminal law. There is nothing more unfairly balanced than the might of the government aligned against the common man.

Fault Lines is getting out the message that our criminal justice system is not fair. Police, prosecutors, crappy defense lawyers, judges who don’t care. It’s all there. It’s an important message. People need to understand how important the criminal justice system is. They need to understand the danger of never questioning the government.

On a more selfish note, I think I am a good writer. But I don’t know. You don’t pull punches, so this is a great way to figure it out. When you tell me something sucks, I don’t get my feelings hurt, I get to work. Over the last few months, I can see my writing getting better and my communication getting clearer. That’s how I make a living, so this is a good thing.

It’s been well worth it. I pay more attention to the news. I pay more attention to what is going on with legal issues. I think more deeply about what I see. I feel like I am using my brain more and that’s always a good thing.

People tell me they like the writing. It makes people think and that’s the goal. The Fault Lines stories relate to regular people, and that’s the trick. At the end of the day, people have to realize the criminal justice system is much closer to their lives then they realize.

Cross: Mike Masnick, Digging Up Dirt On More Than Tech

Feb. 3, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Mike Masnick, head of Techdirt and the guy (yes, the guy) who coined the phrase, the Streisand Effect.

Q.  While people today know Mike Masnick, one of the most influential voices in tech policy, few may be aware that you were weaned on  anarcho-syndicalism and Wobbly songs during your undergrad years at the Cornell School of  Industrial and Labor Relations. Did you start out wanting to bring down capitalism? Were you pro-union or management? Would you rather strike or lock-out?

A. I’m not sure I honestly had any serious viewpoints on any of that when I started at Cornell ILR.  I will say that I had just come off an intense reading of the infamous “Illuminatus! Trilogy” by Robert Anton Wilson and Robert Shea, that a high school friend had given to me, saying “I need you to read this to stop you from becoming like a CIA spook or something” (a vibe I didn’t know I was apparently giving off at the time) and the book actually had a pretty intense influence on my view of things at the time, to the point that it was more “I’m not sure I trust any of what I’ve been told before, and I really ought to question lots of assumptions.”  And then, my very first day at Cornell, my very first class, was labor economics, and the professor started off the class by using economics to convince us that cocaine should be legalized.  And I thought “huh, this could be an interesting 4 years of challenging my assumptions.”

So I don’t think I’ve ever identified closely with any of the standard viewpoints along the political spectrum, and that included early on at Cornell.

When I first registered to vote in NY, they had a box on the card for party affiliation and it had three choices: Democrat, Republican or Independent.  I didn’t even want to check Independent since even that had too much connotation in my head.  So I didn’t check anything, and when I got back my voter card from the state it said: “Party Affiliation: BLANK” just like that in all capital letters.  And I’ve kind of always kept that as my party affiliation.  I’m a BLANK when it comes to that kind of stuff, and try to understand each issue within its actual context, rather than from a preconceived party line.  So I never even really considered if I was on a particular side in the labor debate, and actually gravitated towards professors who argued the antiquated notion of it being labor against management was a concept worth replacing, and was interested in systems and models where incentives were aligned, rather than antagonistic.  I’m a big fan of trying to find non-zero-sum game opportunities where you can “grow the pie” and increase overall opportunity.  That’s why I’m attracted to tech and innovation, as it’s full of those things.

I will say, however, that having ILR on my resume almost cost me my first “real” summer job.  I had been interviewing to be a “marketing intern” for a mail order catalog company (mainly computer stuff and lab safety equipment — I once got to model a hazmat suit and some specialty gloves for the catalog!) and the VP freaked out when he saw my resume, thinking I was there to organize the workers in the warehouse or something.  But the rest of the marketing team liked me and convinced him to hire me — though the VP then never said a single word to me the entire summer.  For what it’s worth, the only other job I had interviewed for that summer would have been working in the HR department at a large electric utility, and part of the interview process included them warning me that if I took that job, I might regularly have to stand up to union bosses who would likely physically and verbally threaten me.  I was kind of glad I didn’t get that job.

Q.  While historically, many ILRies went on to law school, you went the  business route, continuing on to B-School at Cornell in 1997. Back then, AOL ruled the internet and Microsoft had just begun to make the internet available to any idiot who could point and click. Why not law? Were you fascinated by the new-born internet when you picked your poison? Where did you plan to put your talents to use going in, and did that change as tech developed during your years in Ithaca?

A. I went to ILR fully intending to go to law school.  All through high school I thought I wanted to be a lawyer.  I really picked ILR because so many students from there do go on to law school.  But, I was also (from the very beginning) intrigued by the fact that Cornell offered this “5 year program” which is that undergrads could apply to the business school in their junior year, and if they got in, their senior year of undergrad would actually become their first year of business school.  They didn’t let too many students do that (just 3 my year), but for some insane reason I thought I needed to do that *and then* I would go to law school (not at Cornell).  In my head, I thought it would make me a better lawyer if I also had an MBA.

I even bought a practice LSAT book at some point and did a few practice exams.  And then, at some point during my first year of B-School I realized a few things: (1) I’d actually always been much more interested in tech and innovation than in law.  (2) Business school was lots of fun and there were some pretty cool jobs for people graduating with an MBA and (3) Everyone I met who was in law school or had recently graduated law school was absolutely and totally *miserable.*  And I said, maybe I should just go into the technology world instead.  The fact that I now write so much about legal issues is some sort of karmic retribution for never actually going to law school.  I did really enjoy my labor law classes though.

Q. The seeds of Techdirt were born from a newsletter you  started in  business school. What did you know about tech then? Did you have much  to offer,  or was the tech scene so nascent that you knew as much as anybody else  who  paid attention?  Did you make an active decision that this was where  you  wanted to be, or did it just happen?

A. I’d been into tech stuff basically forever.  My dad got us an Atari 800 in 1980 when I was 5 years old, and I grew up with that thing and thought technology was awesome.  I got that from my Dad, I think (he’s an electrical engineer, and enjoyed gadgets and technology as well).  In high school, I started reading Mondo 2000, which was like a bizarro world Wired magazine before Wired existed.  And then, just as I was graduating high school, the very first issue of Wired Magazine was published.  I still remember my friend Ari handing me the first copy in the parking lot of our high school, telling me that it was “the new thing” after Mondo (yeah, rather than drugs in the parking lot I was getting tech magazines — make of that what you will), and I quickly got a subscription and would devour the magazine cover to cover every month.

And, of course, the other amazing thing was once I got to Cornell, I got on the internet for the first time in the fall of 1993, and got sucked in immediately.  I spent an awful lot of time exploring IRC and Usenet — including falling in with a crazy group of folks on Usenet who were all fans of the Illuminatus Trilogy (it all comes around!), including a bunch of folks who went to the University of Illinois at Urbana Champaign, and they started telling me about this neat thing they were working on called “Mosaic” which was the very first graphical browser software for this new concept known as “the World Wide Web.”  So, one night, I dialed in with my 2400 baud modem and downloaded Mosaic overnight while I slept.  And, from there I was hooked on the whole concept of the internet and how powerful it might be.

So, yeah, once I got to B-School and shook off the law school plan, I basically focused 100% on how the hell can I get a job in the startup world.  I basically planned my entire curriculum around that idea: every class I took I wanted to somehow get me closer to being able to work in startups, technology and innovation.

And, as part of that, I did two things that still kind of surprise me today.  First: I ran to be the President of the “High Tech Management Club” at the business school (clubs are *everything* in business school, because they’re cheap and easy resume fodder).  I still have no idea how I won that election, because I was pretty shy and reserved (as one of only 3 students who hadn’t worked prior to going to business school I always felt woefully unqualified to be there, and kept waiting for all the other students and professors to ask me to leave).

Second: I thought that if I was going to get a job at a startup, I had to demonstrate some sort of special skills beyond just “I’m an annoying MBA guy” so I started writing a “newsletter” for the High Tech Management Club (there was no prior newsletter, it was just something I made up).  And I tried to make it funny and entertaining.  And I put a little note at the bottom saying “if you’d like to subscribe, send an email to…” and then I sent it off to the whole club, and apparently some of them liked it because they forwarded it to former colleagues and suddenly subscriptions started rolling in.  I think I almost died when someone who worked at Netscape subscribed like two weeks in.

Finally, there were two professors at Cornell who I became incredibly close with and who really impacted my view of the world.  The first was Alan McAdams, who had been an economist for President Nixon and a gov’t witness in the IBM antitrust trial in the 80s.  And he taught a class on “management consulting.”  He was sort of nutty (he’d wear a suit with sneakers that were untied) and the entirety of his “management consulting” class was basically trying to convince us that the world was about to go through a massive upheaval thanks to digital information and the internet.  He’d constructed a “model” (and I think the only actual tie to “consulting” was that he wanted us to go out and “consult” using this model) which he called “The University Model” and it was all about the economics of open source software (before “open source” had even been coined, I think…), and how the way that people thought about innovation and information flow, and even scarcity itself, was about to drastically change.

And so you had this older, slightly nutty professor, ranting about “the university model” and “open source software” and how Bill Gates had no idea what was coming his way.  And this was 1997 and everyone in the class thought he was crazy.  And I think I did for the first month as well, and then he kept explaining the economics of what he was talking about and suddenly it fused back into all those Mondo 2000s and Wired Magazines and I realized he was saying the same thing in a different language — and I suddenly saw that, oh shit, Professor McAdams was *right* about where the world was heading, and no one believed him because he was slightly nutty and explained it to business school students who didn’t have the slightest clue what open source software was.  But I started hanging out with Professor McAdams and a couple other students who were pretty into understanding this stuff too.  I remember how Netscape announced its plans to go open source around that time and we had a huge discussion about it.

The other professor was Don Greenberg — who also has an interesting history.  He’s been at Cornell forever (I think he’s still there), and basically invented the field of computer graphics in the 1960s.  He was an architecture guy who saw the potential for computers in architecture and somehow was able to build his very own school within Cornell that was entirely focused on computer graphics.  While I was in business school, he had just started teaching a class in the school about innovation.  It was basically a class in disruptive innovation.  In fact, while I was in that class, Clayton Christensen’s famous book on the Innovator’s Dilemma came out, and it basically tracked with the class itself.  The class was about predicting technology trend lines.  Each section (over the course of a few weeks) would take a look at two competing technologies and try to measure out the trend lines.  So this was in 97 and we were debating cable broadband v. dsl v. fiber.  And Linux v. Windows.  And digital photography v. analog photography.  I loved that class so much that I became the TA for it the next semester so I could basically run through it again.  And it sort of primed me to understand just how disruptive technology can be to various industries.

Q.  After graduating, manifest destiny took you to Silicon Valley, where you tried your hand at working for a living, first with Intel and then with a start-up. What happened?  Why didn’t you go the obvious route and get some tech corner office and a massage? Certainly, going to work for some cool tech company would have  been a more financially prudent course, yet you chose to take your own path? What were you thinking?

A. As mentioned earlier, once I realized I wasn’t going to law school the plan was always to go the startup route, however possible.  The Intel thing was really just a stepping stone, though an interesting lesson in how that company achieves at an extremely high level.  Amusingly, part of my job at Intel was figuring out ways to convince top marketing employees not to bolt for startups.  Really.  And then my startup experience was similarly instructive.  I joined a “hot” startup right after it had raised $10 million from some of the biggest names in venture capital (at the time).  And proceeded to watch the company do almost everything wrong.  The board brought in a “seasoned” CEO who knew nothing about the business, but she’d once worked in a totally different sector and had helped a company through a “successful” IPO — so she insisted she could do that again for us.  She then forced out the founders and the people who did understand the business and brought in some of her friends.  Almost everyone whom I originally came to work with bailed out and I stuck around for a bit.  Amusingly, even though I was still “new” because i was one of the few remaining “holdovers” from before, the new management quickly gave me a ton of responsibility because at least someone had to know what was going on.  I don’t think they even knew I’d only been there about 4 months when they gave me a ridiculous amount of control.

But I finally decided to quit after I had lined up a MASSIVE deal to have our technology used by the US government, and after lining up everything, and briefing our VP of Engineering on all the details, he came into a meeting with some Defense Dept. officials and proceeded to clearly not understand our own technology.  It actually reached the point where he was asking some Air Force guys to *explain our own technology* back to him, so he could better understand the deal.  I quit the following week and decided that if I was going to go down with the ship on a startup, it should probably be my own damn startup.

And, of course, since I’d started Techdirt earlier at business school, I’d kept that going as a hobby on the side (partly to keep me sane).  I dabbled with starting something entirely different (more or less a LinkedIn before LinkedIn), and then someone smacked me around and said “you have this website with thousands of followers, just go with that.”  At the time, I thought the internet ad business was a dangerous one, so I wanted another business model, and we started a research and consulting business called Techdirt Corporate Intelligence, where we’d supply basically mini-Techdirts to companies focusing on any news relevant to them.  I called up two people I knew in business school and explained the concept to them, and both said that their (fairly large) companies needed such a service immediately, and suddenly we were in business, with that service financing Techdirt itself as well.  Many years later we finally put ads on Techdirt itself.  And I’ve never looked back. So I did end up in a startup — though a different kind of startup.  And we’ve continued to grow both sides of the business, building the following around Techdirt, and then building out other aspects to our business, including our main focus these days, which is a think tank called the Copia Institute that is working on a bunch of products to help the tech industry navigate the policy world more effectively.

Q.  So Techdirt was born, and Mike Masnick was saying what others need to hear in language that was unmistakably clear. You had to realize that you were going to make some enemies, like Tom Sydnor of the  Progress and Freedom Foundation, who said:

“I think Techdirt is demagoguery in the sense that a demagogue is somebody that tells only one side of the story, and exaggerates, and so I would largely say that Techdirt is demagoguery.”

Were you ready for the anger that was coming your way? Did it concern you that you would be called a demagogue? What did you do about it? Did you respond, care, laugh?  Did it ever affect your writing or willingness to call someone out at Techdirt?

A I’m from NY, so I don’t mind people having opinions and being blunt.  Tom was just angry because I’d exposed his bullshit smear job on Larry Lessig among a few other nutty statements (like the time he defended $150,000 awards for a single download of a song) and I knew how angry he could get (seriously, watching him get angry in person is kind of funny — it’s a DC tradition).  So, yeah, Tom’s insults are pretty easy to laugh off.  Of course, it’s probably worth mentioning two additional facts: (1) the day that article came out where Tom also said that no one in DC paid any attention to me (literally that very day), I had gotten a call from the White House asking for my thoughts on a policy proposal.  So, Tom and others can say what they want.  Reality doesn’t necessarily match Tom’s view of the world.  (2) Notice that the Progress and Freedom Foundation doesn’t exist any more?  It disappeared around that time.  So…

At the same time, as a friend pointed out, the *original* definition of demagogue actually meant someone who is “championing the cause of the common people.”  The meaning has changed over time, but originally it meant speaking out for the public’s rights, and to some extent that’s exactly what I try to do.

But, more generally, angry responses tend to be more amusing than anything else, as they’re so frequently based on faulty assumptions.  If anything, I consider such responses a form of “batting practice” for when I have to deal with more professional disagreements with positions I’ve staked out.  As for impacting my writing, I can’t recall any cases where it has.  I will say that in recent months, though, I have started to consider (at least marginally) Mark Bennett’s Rule 1 in thinking about certain engagements.

Q.  Not that you haven’t had some significant achievements at Techdirt, like your role in killing SOPA, but let’s be honest, the best thing you ever did was coin the phrase, the “Streisand Effect” in 2005.  What are you going to do for an encore, or is it all downhill from there? Seriously, do you attribute the ubiquity of the Streisand Effect to your great influence or was it just one of those things?  If nothing else, how does it feel to know that a phrase you coined is likely to live forever in infamy?

A. It was totally just “one of those things.”  I’m still not even sure how it happened.  When I coined it, Techdirt really wasn’t that big or well known, and I didn’t see it being used very widely for a while.  It was maybe a couple of years later that it somehow popped up in Forbes, and then not long after that I got to go on NPR’s All Things Considered to talk about it.  And from there it’s just grown and grown.  I coined it, but had basically nothing to do with its life after that one throwaway line.  The world is a strange place sometimes.

And, of course, now that the phrase has become much bigger than me, people who have known me a while are constantly amazed to find out I coined it.  It’s the kind of phrase that no one ever thinks got “coined.”

At least Mike Godwin was smart enough to put his own name in the phrase he coined.  🙂

Q.  Among the “causes” you champion at Techdirt, particularly open internet and net neutrality, you have taken a very strong free speech, anti-copyright position.  Indeed, you’ve been pretty strident about your views that information wants to be free and should be. Why? Where did this come  from? Is this a libertarian free-market thing, or is this a belief formed in the early days of the internet, when the only “law” was the wild west, and
anything goes?

A. As a correction, I don’t consider myself “anti-copyright.”  I think today’s copyright system is totally broken and needs to be fixed.  And I would say that no copyright system at all would almost certainly be better than today’s copyright, but that doesn’t mean that no copyright is the ideal either.  I’m interested in exploring different and much more limited models of copyright — ones that take into account free speech, the public’s rights and innovation.  I also don’t actually buy much into the “information wants to be free” line of argument either — and agree with Cory Doctorow that basically the only time you hear that line these days is when someone wants to insult people pushing for copyright reform.  Stewart Brand’s full quote, from where “information wants to be free” comes, is a lot more interesting and nuanced:

On the one hand information wants to be expensive, because it’s so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other.

To me, it’s that “fight” that is so compelling and interesting.  And starting from way back in the stuff I did with Prof. McAdams, I realized increasingly that when you could increase the power and value of the “free” information side of things, AND (importantly!) minimize the downsides to it, you could do amazing things for the world.  That’s why I actually have spent a ton of time trying to highlight all different kinds of new business models and people who are successfully embracing those business models.  Because I think it’s possible to actually create a world in which there’s wider overall benefit (access to information, the ability to create and share and learn and innovate) combined with those doing the work still being able to earn a living doing so.  It’s that old non-zero-sum game, align the incentives thing all over again.  It’s just that some people who have built careers around controlling the old way of doing things get fairly upset at a changing world where they’ll have less control.  And so they spin fanciful stories like how it will destroy everything, when it’s usually just destroying the unfair advantage of a gatekeeper.

So I don’t think the idea formed from one or the other of “a free market thing” or “the wild west of the internet,” but rather a combination of both of those things.  In short, one of the key takeaways I got from Prof. McAdams and his discussion of the University Model was that those two things weren’t in conflict.  I know that many people in the “free culture” world also claim that they’re “against free markets” or something like that, but I don’t come from that line of thinking.  I think the two things work together perfectly well.  I’m a big free market supporter, while also embracing the value of free culture — and I try to show that those two things can thrive together.

Q.  At some point, Techdirt began to shift and expand its content to include some serious and harsh criticism of law and law enforcement. What caused this expansion? Was it a natural outgrowth of the work you had been doing on tech? As you headed away from your tech wheelhouse, did you find the lack of a law degree or legal experience made it challenging to be sure that you understood what you were doing? Any chance you now wish you had done law school rather than business school?

A. I think it was a natural outgrowth in many ways, though often there are ties back into technology and innovation as well.  For example, we’ve spent a lot of time discussing the problems of civil asset forfeiture.  But my interest in that area came about mainly after the Department of Homeland Security used that procedure to “seize” and then attempt to forfeit some hiphop blogs, claiming they were engaged in copyright infringement.  That story (mainly about the blog Dajaz1) touched on a number of points that were always relevant to me: copyright and free speech — but then forced me to educate myself on civil asset forfeiture.  Similarly, on issues of criticism of excessive law enforcement, some of that came out of the stories we’d had about people using their phones to film police.  So there were direct tie-ins.

Also, lately, much of that kind of coverage is driven by our writer Tim Cushing who is much more focused on those issues than the rest of us.  And since he’s passionate about it, we’ve let him explore that area on Techdirt.

I don’t think the lack of legal experience or a law degree has been that much of an issue for a few reasons.  1. I’ve always said that the blog is part of my way of learning things as I go.  When I write something ill-informed and stupid, people inform me pretty quickly, and I learn for future posts.  Some may find that to be a horrible concept — and I do try to get it right originally — but sometimes people make mistakes, and using them as education for the future seems like the best possible result.  2.  In doing Techdirt over the years I’ve somehow attracted a fairly large group of lawyers who like to read the site and I’m able to reach out to many of them to bounce ideas off of them before writing certain pieces in areas where I’m not as familiar.  And the amazing thing I’ve learned is that even lawyers with decades of experience in certain fields are confused by issues.  As an example, in a recent story about a particular copyright lawsuit, I reached out to a bunch of lawyers trying to understand the details and it seemed like many of them were equally confused.  I really had to talk it through with many different people, sometimes going back and forth between different lawyers before I felt I had a handle on the basics.  And, of course, after that post went up, I heard from a few more lawyers as well, who had different takes on it.

So it’s possible that I didn’t understand the details because I didn’t have a legal background, or it’s possible that the law itself in this area is *insane* and no one has a really good grasp on it.

Q.  One of the complaints about Techdirt is that it pulls no punches,  and that you won’t hesitate to rip someone’s lungs out if you think they deserve  it. I kinda know that feeling. Does it concern you that maybe Techdirt can
be a  little too strident, a little too harsh in its attack? Have you ever come to  regret having gone after someone? Was there ever a post where, in retrospect,  you think that it was a mistake, whether because you were wrong
or just did more  harm than was justified?

A. First of all, who do you know who’s complaining about Techdirt?!? But, more seriously, that’s a really good question.  I will say, however, that I *try* to make sure that if I’m ripping apart something, it’s their ideas, statements or actions, rather than them as a person.  We may not always succeed at that, but it’s something I strive for.  As an example, when talking about a musician, I’m pretty careful not to, say, make fun of their music.  Because something like that is a taste thing, and if lots of people like it, even if I don’t, well, that’s a cheap shot to make fun of that.  But if they say something I think is dumb about copyright or the internet, well that’s fair game.

I’ve met some of the people that I’ve criticized and it can be an interesting experience.  I once had the CEO of a multi-billion dollar company call me up and lecture me for an hour where I couldn’t get a word in edgewise (which was weird).  A few years back someone actually engineered something of a surprise dinner between me and a well known author whom I’ve criticized repeatedly, and it was a pretty intense conversation, though it made me realize that much of what that guy wrote was to play the role of a character (i.e., he would raise a point from his book, and I would point out multiple examples of why his argument was wrong, and he’d immediately back down saying “well, you know more of the details about that than I do…” — and I kept thinking “but you’re the one who wrote the book!”).  I once met a Congressional staffer whom I had written not very nice things about, and I recognized the name, but couldn’t place why I recognized it.  And she told me that a committee she was on had been trying to call me to testify before Congress and “people” (never identified) had refused to give her my contact info (though I’m pretty easy to find).  I gave her my card and only later realized who it was and how I’d basically gone sentence for sentence in attacking some comments she’d made (that, to be fair, were really dumb), and that the idea of having me testify was probably designed to make me look bad.  But, whatever.

There are definitely stories I regret.  Like almost everyone, there are times we’ve fallen for the “too good to be true” stories.  I remember this story as an example: Recording Industry Helps Rapper/Single Mom Get A PhD, Though It Tried To Weasel Out.  Though we quickly got tons of comments on it raising questions, leading to a much more thorough followup: That Story About Warner Music Paying For A Rappers’ PhD? Well… Not So Much.  Of course, amusingly on that story, I made the “mistake” of reaching out to Warner Music to do some further fact checking, and I kept delaying publishing my updated story in order to get a quote from them, which they kept stalling on.  It turned out the real reason for the delay was so they could feed the story to another “reporter” who used to work for the recording industry (and now works for the MPAA), so that he could write up a story mocking how Techdirt had been fooled.  So that was fun.  But, we try to be upfront and honest in admitting when we’ve made mistakes.

There was also the weird Lily Allen story a few years back.  She’s a pretty famous singer (whose music I actually like) who said some silly things about copyright law, and then as part of a blog she set up to present her viewpoints, had copied a blog post of mine, word for word, without a link or attribution.  I used it to point out the somewhat hypocritical nature of her position, and it led to some other revelations about her — including that while she was insisting that infringement was “not alright” she had been literally releasing “mix tapes” of other musicians’ work off of her EMI-owned website.  I don’t think we were particularly mean to her ourselves, but it did point out a level of hypocrisy, and some others may have been mean following that.  She deleted her blog and then announced she was no longer making music (she changed her mind sometime after that, of course). It led one music industry lawyer to claim that I had somehow commanded my “internet mob” to attack her and drive her out of the industry.  And while I think there were probably some ugly comments made by some people, I thought all of our posts were quite fair and MOST of the commentary on her site and elsewhere that I saw seemed to be focused on reasoning to her why she was being hypocritical.  But it’s not like I was trying to drive her out of the industry.  So, I don’t regret those posts, but it did feel weird that some people then tried to blame me for having her quit making music (for the little while she did).

Separately, I know that the fact that we don’t pull any punches has certainly made life more difficult for us as a business.  We’ve lost advertisers and advertising partners over stories.  We had a really big ad partnership a few years ago that got yanked in large part over our SOPA coverage.  Last year, right as we were about to launch our new think tank, the Copia Institute, we had been close to a sponsorship deal that got killed after the company pointed out we’d published an article ridiculing a company who was a very important client.

But I don’t regret that kind of thing at all.  If we compromised our coverage in order to please advertisers or partners, then we’d compromise everything.  It’s not worth it.

Q. One of the more curious things you’ve done is create a community of “anonymous cowards,” the name given to your Techdirt commenters who prefer to remain anon. Having read your comments, they can be pretty funny,
pretty nasty, and pretty batshit crazy. Do you ever worry that the commentariat has gone too far off the deep end, and they’re driving away more serious readers who don’t want to hang out with the anonymous cowards?  You’ve added a feature about the “funniest/most insightful” comment of the week. While this may be a fun contest for your commenters, does this incentivize outrageous comments? Do you ever worry that this makes people stupider rather than illuminates, as your posts seek to do?

A. We copied the “anonymous coward” concept from Slashdot, whose software we originally used to power Techdirt.  And it’s just stuck.  And, honestly, on the whole I think our comments tend to be pretty great compared to comments on most sites.  We do have all kinds of commenters, and many are incredibly thoughtful and knowledgeable.  Some are indeed crazy.  And there are a few trolls trying to stir things up.  I have no idea if the crazier comments have driven away more serious readers — I doubt it would be a noticeable impact, honestly.  If people are upset by the comments, they can still read the articles and ignore the comments.  And, frankly, when the crazier comments do come up, it’s quite amazing to see much more intelligent and thoughtful responses point out where they’re off-base.  I actually learn a ton from our comments as well, and they’ve absolutely made me a much better and more thoughtful commentator on the issues we cover.  And the fact that you have some crazy comments mixed in seems unlikely to “make people stupider” when there are almost always other comments carefully picking through and rebutting the really crazy ones.  I think some people think that stupid comments magically make other people stupid, whereas I’d like to believe that those comments, mixed with rational, careful responses, actually makes people much more thoughtful.

And, similar to the “batting practice” point I made earlier, crazy comments are a form of batting practice for engaging in more serious debates.  You’d be amazed at how useful going 12 rounds with some trolls in the low pressure arena of a blog comments form comes in handy when you then have to confront the top copyright lobbyist for the US Chamber of Commerce in debate on a stage in Washington DC.  Throw whatever you want at me, I’m ready for it.

Similarly, I’d argue that the “funniest” and “most insightful” awards and voting in our comments have actually incentivized better overall comments, as it doesn’t require being outrageous to win — just insight or humor.  It certainly beats the typical “up/down” voting that many sites now employ.  If people are going to comment on the site, we’d like them to either make us think or make us laugh.  So we put some little nudges towards that.  Does it always work?  Of course not.  But I think that our comments are a hell of a lot more interesting (and amusing) than tons of other sites out there.  I don’t always have time to read all the comments, but I do read a lot of them and I get a ton out of it — often in reading how other commenters debunk the crazy ones.

 

Cross: Walter Olson, A Good Lawyer’s Best Friend

Jan. 27, 2016 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Walter Olson, whose blog, Overlawyered, is recognized as the first law blog ever, and who is a Senior Fellow with the Cato Institute.

Q. As the founder of what most of us consider the first law blog, Overlawyered, you have become as transparent in your views as you remain a mystery as a person.  You went to Yale, long before all the safe space shouting began, but that’s about all I could find out about your formative years. So where did Wally Olson come from? Any other university, degrees?  What was your major?  What did you want to do when you went into Yale? And then what did you want to do when you came out?

A. I myself escaped by a bare whisker from attending law school; many times since I’ve been told that had I gone there I would never have dared take such a disrespectful attitude later on in my books (“the professors would have beaten it out of you”). And of course the debt burden might have made it harder for me to persevere as a writer.

Instead I briefly started grad school in economics, which had been my undergrad major, but soon realized that although I was drawn toward economic history and the analysis of market phenomena, I didn’t aspire to be a professional economist. You may wonder about my views on the law and economics movement, which are a bit of a love/hate mix – it has done so much splendid work, but also so much work that reads as if written by someone raised by wolves, such as models of litigation that assume it has zero transaction costs.

Q. When I first stumbled across Overlawyered, it was primarily about tort reform, with you and Ted Frank (who has since gone on to run the Center for Class Action Fairness) beating the crap out of personal injury and class action lawyers. What made you focus your interests on lawyers, in the first place, and personal injury lawyers in particular?

A. Two things combined to bump me from the economic onto the legal writing path. First, the litigation business in the 1980s was something completely new that was constantly making news, with stunning individual cases like Joe Jamail’s $10 billion score against Pennzoil on a claim arguably worth zero, and a new business plan of mass litigation both arising from and itself stoking public fears on hazards both real and imagined (silicone breast implants, childhood vaccines).

Second, I found myself thrown in among brilliant legal thinkers who were very good at getting me interested in their subject. I was helping edit a magazine called Regulation (put out now by Cato, then by the American Enterprise Institute), edited by Nino Scalia. I worked on pieces by rising writers like Peter Huber, Richard Epstein, and many more. “These are the most interesting issues in public policy right now and no one has managed to explain them to a general readership yet,” I thought.

Q. Since those early days, you’ve spread out to issues involving criminal law, school law (with an emphasis on the harm done to children by cops and school admins with their inflexible rules).  Still, the name “Overlawyered” is itself a pointed political statement. Why (or why not)?  Is your “issue” with the lawyers or the legal system? Why do you hate lawyers so much?

A. How silly to think I hate lawyers; they are (part of) the intended audience for almost every word I write. No, my target is the legal system especially as shaped by ideas, movements, and would-be reformers. Of course some members of the profession are personally quite evil but in the end I have trouble staying interested in evil persons; most of them are banal. I am much more fascinated by the way bad legal incentives built into a system can take nice, or at least ordinary, people and put them in a position where they are willing to destroy adversaries, connive at perjury, rationalize injustice, or whatever.

Q. You’ve been a scholar with the Manhattan Institute, a conservative Think Tank, and now the Cato Institute, a libertarian Think Tank.  What drew you to the Think Tanks? What drew you to these Think Tanks in particular? What made you find a home in conservative libertarian politics?  Are you a faithful member of the team, or do you have any disagreements with Manhattan Institute and/or Cato?

A. None of these organizations (including the American Enterprise Institute, where I started off) imposes a heavy-handed ideological line, and I have been grateful for that. I’ve always written on a broader range of interests than law alone and have helped launch many publications in other areas, such as the websites Secular Right and Independent Gay Forum.

I am especially grateful to Cato because they explicitly urged me to do more rather than less branching out. Six years ago, when they invited me to join them, I felt that after a quarter-century, I’d basically written most of what I ever wanted to say about tort controversies. Cato has real depth in areas I’d never had much occasion to write on during my years in New York City, such as constitutional law and Supreme Court coverage. It has a libertarian vantage point that combines a traditionalist’s respect for the Anglo-American legal and constitutional inheritance with a more liberal stand on many present-day cultural issues. That happens to suit me exactly.

Q. Your first book, The Litigation Explosion, rips civil litigators to shreds, laying the blight of litigiousness of American society at their feet for fostering a lawsuit for everything.  Are lawyers really that greedy and manipulative?  Certainly, there are some causes worthy of litigation, right?  Where is the line drawn? Is Overlawyered over-tarring all civil litigators? Aren’t there any lawyers with integrity out there handling personal injury?

A. The Litigation Explosion comes down hard on modern developments in legal ethics, procedure, and so forth, but in every case it’s defending propositions — “don’t stir up litigation,” for example – that had been accepted, even seen as axiomatic, by generations of lawyers previously. I offered a wide-ranging critique, but there really isn’t any major element of it, whether it be about notice pleading or forum-shopping or wide-open discovery, where I wasn’t tracking the footprints of respected judges and practitioners who had already noted these problems.

Where I perhaps was a bit more original was in systematically challenging the then-fashionable ideology from the law schools that saw litigation as a socially productive way to get ever more justice and deterrence and social insurance and accordingly sought ways to promote more and more of these good things – Allow citizen suits over everything! Take any discovery you want! Let everything get to a jury! One-way attorneys’ fees when it’s over! I called this the “invisible fist theory,” a Bizarro-version of Adam Smith’s much more plausible invisible-hand theory of the economy, and I made fun of it. People forget how popular that view of litigation was for a while among supposedly advanced thinkers, though it has been in retreat for a while.

Q. In your next book, The Excuse Factory, you write about “how Kafkaesque employment laws make it nearly impossible to fire even the most incompetent and unmotivated workers.”  Is this about lawyers, or laws?

From the merely annoying, like the chronically late secretary, to the extremely dangerous, like the alcoholic airline pilot, Olson shows how the legal system coddles those who least deserve it. In the name of protecting victims of discrimination with laws like the Americans with Disabilities Act and the 1991 Civil Rights Act, we have made it tremendously difficult just to get people to do their jobs.

That was from 1997, and problems associated with the Civil Rights Act and the Americans with Disabilities Act are far more severe and ubiquitous today than anyone could have imagined back then. How did that happen? What has changed in America in the past two decades that has not merely reinforced the concerns, but expanded them to such unrelated issues as “fat shaming”?  Was this the lawyers’ fault?

A. I take no credit for being prescient; I could see the momentum building. In the law reviews, there were (and are) twenty articles urging the expansion of employment discrimination law for every one that sees problems or costs in it. Collective bargaining was shriveling year by year, while employment suits proliferated, resulting in the great aphorism I quoted from a now deceased-lawyer about how it’s easier to get $100,000 for one worker than it is to get ten cents an hour for all the workers.

Identity politics never cools off, and the anti-discrimination principle is as close as we’ve got in this country to a secular creed. Whenever I find a case where I think, this time they’ve got to admit the law goes too far – the fire department, for example, ordered to stop discriminating in favor of applicants to have the upper-body strength to carry a charged hose or a human body — I find that the ACLU or the feminist or ADA groups are proud of that outcome and that Congress is utterly unwilling to say no to them.

Q. Your next book, The Rule of Lawyers, was published in 2003, where you take on the class action bar, and most notably, the $246 billion tobacco settlement. Is there any virtue to be had for the lawyers representing the little guys against behemoth corporations?  You attack the lawyers for fighting for their own paychecks rather than the interests of the class, but is that a flaw of the system or the lawyers who chose to put their efforts toward gaming the system? Should class actions be banned, or do they serve any purpose? And with guys like Ted watching the watchers, is there any hope for legitimacy for the future of class actions?

A. The Rule of Lawyers tackled industry-wide litigation and what came to be called regulation through litigation, and especially the phenomenon of private contingency lawyers teaming up with state AGs, mayors, or other levels of government to take down industries, which nearly worked against gunmakers and was tried with varying degrees of success against a half-dozen other lines of business following tobacco. If your idea is to enact a romantic David and Goliath story, lawsuits by Masters of the Universe tort guys flying around in their private jets against mom and pop gun stores or nonprofit hospital executives aren’t my idea of that.

On tobacco, we lived through a period where not only were state AGs hiring their old professional and law-school chums without competitive bidding for eight- and nine-figure fee pots, but the legislatures of Maryland and Florida, to name two states, enacted statutes retroactively establishing liability in pending suits filed by those states, which made a cool budget enhancer, no? The whole process was just spectacularly corrupt on multiple levels, playing at the forms of a U.S.-style court system but really channeling loot to those in charge. I think the word is “tinpot.”

Now I think there was a very healthy revulsion afterward among bench, bar, public officials, and others, to the things I wrote about, and many of them quietly resolved that things must not be done this way again in future. But with a very few exceptions, such as sending the then Texas AG to prison, there was never a reckoning over what happened in the tobacco episode.

Q. And not to belabor your books, but your last book, Schools for Misrule (which I reviewed), goes after law schools and its overwhelmingly liberal professoriate.  That was in 2011, and by my highly unscientific calculations, the Legal Academy has not only grown more radical in its liberal politics, but more shameless in its exploitation of scholarly credentials to pursue its agenda.  Is there any going back?  Where are the intellectually honest scholars, the conservative academics? Law school isn’t gender studies, so what has gone so horribly wrong that it has been consumed by progressivism?

A. Please do belabor my books. This may be one instance where my view is a bit less bleak than yours. Schools for Misrule is a book about bad ideas in the law schools, and those bad ideas (as at business schools and schools of education) often arrive in fads that sweep through with little resistance: public interest law, welfare rights law, international human rights law, law and inequality, and whatever the Ford Foundation decides to move onto next.

But that is only part of the picture. While the law schools now host many thinkers unfriendly to free expression and due process, they also host many of the leading advocates of those principles. Who raised objections at Harvard when administration decided to cave to the new Title IX regime? A bunch of law professors. And there’s always that “compared to what” question: given the forces pushing ideological uniformity and indoctrination on many campuses, the law school – even where there is only a solitary one or two conservatives or libertarians – will often be a locus of resistance, simply because most law teachers crave the freedom to show that issues have more than one side.

Q. While some might mistakenly see your books and Overlawyered and believe that you’re a serious lawyer hater, that’s really not the case at all. Indeed, you’ve been very supportive of lawyers who defend the Constitution, both criminal defense and First Amendment in particular. What makes them different? Is it just a matter of practice area, the particular niche served, that distinguishes good lawyers from bad?  Perhaps your “overlawyered” issue is less a reflection of the legal profession, the sort of folks who choose to practice law, and more a condemnation of those who are greedy and disreputable?

A. I hope I haven’t let criminal defense lawyers, or lawyers who fight the government, off too easily. I’ve run pieces poking fun at far-fetched or turn-over-every-rock criminal defenses, and (often) at overstuffed fee requests by lawyers who prevail against the government. And as you’ve acknowledged yourself, the fact that there’s a ton of genuine police misconduct doesn’t mean there isn’t also a ton of bogus claiming of police misconduct, often by fairly arrested perps who may feel they have nothing to lose by such a bogus claim.

Even so, you’re on to something about how needless civil lawsuits don’t quite have a parallel on the criminal defense side. If you sprain your wrist slipping on your aunt’s porch the socially optimal number of lawsuits may be zero, no matter how genuinely it hurts, but when someone is in peril of imprisonment the optimal amount of criminal defense effort is not zero; it is reasonable for the state to have to prove its case.

Q. While this will not likely surprise you, a lot of lawyers find themselves in general agreement with your criticism of the profession, even if not with every specific issue.  That said, would we do better to have a society without lawyers? While much mischief can be attributed to the legal system, what would we do without it?  How do we “raise” the next generation of lawyers to do a better job of serving their clients and society without taking away their incentives to enter the profession?  Is an underlawyered future better than an overlawyered one?

A. The choice of not having lawyers or law at all is a false one. To criticize the medical profession over its dispensing of unneeded surgeries, side-effect-laden happy pills, or baseless psychiatric diagnoses is not to call for a world without the medical profession. Unlike some economists and some of my libertarian colleagues, I think there is merit in the tradition of recognizing certain learned professions that are subject to special ethical demands and elements of self-governance, as opposed to running on the business model of ordinary lines of commerce.

Unfortunately, our law often seems intent on keeping the bad aspects of guild governance (such as ferocious application of unauthorized-practice against innocuous service providers) while jettisoning core elements of ethics that are much more important in retaining public trust.

Cross: Marcy Wheeler, The NSA’s Worst Nightmare

Jan. 20, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Marcy Wheeler, whose blog, Empty Wheel, has done more to reveal the NSA’s secret surveillance of Americans than anyone other than Edward Snowden.

Q. Having recently questioned whether a physics education lends itself to thinking like a lawyer, you went in the opposite direction, getting your Ph.D. (that’s right, it’s Dr. Wheeler to you) in comparative literature from Michigan. To make it even worse, your emphasis was on 19th Century French and 19th- and 20th-Century Czech and Argentine “Feuilletons.” Did you ever think that you would end up writing about law, civil liberties and NSA surveillance?  Did your education contribute to your understanding?  Perhaps there are similarities between “Feuilletons,” what Newsweek described as a “subversive writing form” used under “authoritative regimes,” and the thousands of secret government documents you’ve read since?

A. I went to grad school because I had a general question I wanted to answer that ended up becoming the feuilleton research, not necessarily because I wanted to be a literature professor.

But my research absolutely does relate to blogging. My topic was about how a form that arose amid momentous media and nation-state change (the rise of industrialized newspapers and the nation-states that went with them) served as a place for certain kinds of speech, particularly in times of heightened repression. Stylistically, the feuilleton has usually been the conversational counterpart both to “high” literature and to more formalized political speech. And not incidentally, I wrote some about surveillance, interrogation, and torture because I was writing about dissidents in authoritarian countries. It turns out a PhD in CompLit can be perfect training for blogging. Heh.

Q. After your brief stint teaching Great Books and Communications in college, you decided that the ivory tower wasn’t right for you. Why not? That was from 2000 to 2002, well before the current wave of political correctness and “special” snowflake students. One would suspect there aren’t a great many careers that call for your rather specialized educational background, so how much must you have hated academia to blow it off after having gotten your Ph.D.?

A. Don’t underestimate my solid postmodern critical theory credentials! I even took a seminar with Slavoj Zizek, who invited himself to be on my dissertation committee (I declined the invitation).

One of the most fulfilling weeks I had before grad school I went from working on a writing project with a VP from Moodys to working on a writing project with an oil refinery operator in Superior, WI who had, by his own admission, barely made it through high school. In spite of the big disparity in background and training, they were struggling with similar issues but also, ultimately, managed to overcome them. Stuff like that made me a strong believer that the skills normally associated with a humanities education are necessary and undervalued in the “real world.” Increasingly, those humanities skills have been relegated to the academy, pre-law, or fiction writing, with B School becoming the place where people learn how to apply humanities skills to the real world. That’s a problem for the humanities disciplines (and definitely partly of their own doing), but also for a society that undervalues — or limits the practice of to law firms and board rooms — the critical thinking and writing skills trained in the humanities.

Which is a roundabout way of explaining why that CompLit PhD was a tremendous opportunity, and but I didn’t despair when I decided staying in academics wasn’t in the cards. Had it been possible to get a Media Studies job for print culture when I was on the job market, I might have stayed, but ironically, at the time those jobs all required a focus on the Internet. As it was, I was facing teaching in an English department teaching both Goethe’s and post-colonial world literature while my colleagues got to teach nothing but Dickens, which wasn’t going to be a formula for success. So I left. I occasionally run into my former profs who say they’d love to be able to engage with as many people as I’ve managed to regularly, so I guess they don’t think I made a horrible decision.

Q. After leaving your teaching position, you took off for the wilds of Asia. Was that in the plans, or just something to do between teaching and wherever you would end up? You worked as a consultant in automotive, using skills that you developed between college at Amherst and grad school. Is this how you honed the rather arcane skillset of deciphering government docs? As your later efforts proved, you were not only good at doing so, but really quite remarkable. Was there some trick to it, or were you just totally brilliant when it came to cutting through government gibberish?

A. I had grand plans when I left academics but then got diagnosed with cancer so needed something to do until I got through that. I ended up falling back into the same kind of document consulting I had done before grad school, at first very simple things, but then increasingly more interesting. Before grad school I worked for a consulting company that worked in the oil, tech, pharma, rail industries — pretty much any industry that had to do enormous, usually regulatory or quality, documents. Afterwards I worked for a Detroit auto company, consulting from home but traveling to Asia a number of times.

I presume a lot of this paper bureaucracy has moved online now, but at that time, these giant bureaucracies were all driven by paper documents. Usually, when working on these projects, you’d get one or two subject matter experts to work with and reams of documents from which to understand the underlying processes. It was a great way to learn what these companies did. And it was also not dissimilar from the kind of archival work I did in history or literature work — or, obviously, some of the weedy analysis I do on torture and surveillance bureaucracies. Some of those big corporate training or documentation projects are actually really useful, if they’re done properly. Sometimes I questioned the value of the underlying goal — was helping to convince China’s rising middle class to buy more cars really how I wanted to spend my life? But on the more complex projects, it was fascinating work.

Q. When you returned to the states, you got “sucked” into covering the Valerie Plame leak case, outed by Scooter Libby, and it ultimately resulted in your book, Anatomy of Deceit. Aside from the fact that it’s hard to imagine anyone “sucking” you into anything you don’t want to be “sucked” into, how did that happen? You didn’t have a background in law, and at that point, you had yet to establish yourself as a journalist, so why you? Your reports of Scooter Libby’s trial were among the “go to” sources that many mainstream journalists relied upon.  Did you feel up to the task? Would it have been better, or at least, easier, if you had been a lawyer? Or do you see a legal education as the sort of background that hinders the vision you had?

A. The Plame case was as much about the press getting used as it was about the Vice President’s office, which made it hard for many journalists to cover. As for the law, there were several lawyer-bloggers who were also covering the case, notably Christy Hardin Smith and Jeralynn Merritt, and they covered the procedural areas, which I’m sure prevented me from embarrassing myself.

As for why me? In part it was that I had the flexibility to cover the case and ultimately the trial. It’s also true that my academic work on newspapers and narrative meant I could add something to the kind of politically driven coverage associated with the Libby case (or the Iraq War). I was used to reading large amounts of documents with a focus on the details, so I was happy to read through the documents on the case, and in any case would never have been able to rely, like the DC journos could, on what lawyers representing one or another side of that case told me in confidence. Finally, it helped that I was blogging, rather than reporting for a newspaper, as I wasn’t bound by 800 word stories focusing on one main news takeaway; I could write long posts laying out several developments at once.

Reggie Walton, who presided over the trial, has at least twice said publicly that the bloggers’ coverage (including FireDogLake, Jeralyn’s coverage, and some other bloggers unrelated to our coverage) was “more thorough” than the traditional press, and I think that’s both because we weren’t bound by the typical news reporting genres, but also because we brought different kinds of approaches to the case.

Q. ln 2007, you started writing at Jane Hamsher’s FireDogLake, which was ground zero for progressive activism in its day. Why FireDogLake? Did that go back to your coverage of Valerie Plame? How did it mesh with your personal politics? While FireDogLake did some very heavy lifting with regard to civil rights and freedom, it was certainly deep into politics (and political shenanigans) as well. Were you there for the legal issues, the political issues or both?

A. Jane really made the Libby trial coverage happen, we covered it together. So when she expanded her site, it made sense for me to go over there with my own site, which is where emptywheel started, and while I covered the auto bailout and ObamaCare, it mostly was what it still is: weedy analysis of civil liberties and national security stuff.

Q. There was a very curious period, about two months, where you were a senior policy analyst for Pierre Omidyar’s The Intercept, and then you weren’t. That was before The Intercept officially launched. What happened?  What drew you into working for Omidyar? What made you decide to leave? There were rumors that it had to do with Omidyar’s donations to Ukraine opposition groups, but you denied that was the case. What was it about The Intercept that made you decide it wasn’t right for you? In retrospect, did you make the right choice?

A. It was actually just as the Intercept launched. I joined — it was only a part time role — because I thought it’d be the rare place that would fully support the kind of non-traditional journalism I do. I hoped ultimately I’d be able to get paid both for the really weedy analysis that won’t ever draw in large numbers of readers and for pieces that made that analysis more accessible. I also wanted to work at a place where I’d have lawyers who could bring FOIA lawsuits. But it was just a part time gig and they weren’t willing to pay for the weedy stuff. I left so they wouldn’t get to freeload on the weedy analysis.

Q. Torture. You were the person who figured out that the United States waterboarded Khalid Sheikh Mohammed 183 times in a single month after 9/11, based upon the Bush torture memos. How did you see what no else saw? Presumably, your skills at seeing through bureaucratic obfuscation came in handy, but so did your persistence in reading deeper than anyone else. After you broke the news, what happened? Were you in fear that the government wouldn’t invite you to its holiday parties? Were there any ramifications from being the person who exposed one of the most disgraceful episodes in our nation’s history?

A. One really nice thing about writing a blog is that you don’t have to write about one and only one story for each news item. When the traditional press wrote about those documents, the one and only one part of the memos that interested them was the horserace — how would the release play politically? — and not for the process that went into making those documents or the role those documents played in a larger process of sustaining the legal approval for torture over 6 years. I spent several days just unpacking what was in memos, doing working threads and some posts just observing what the memos disclosed.

The reference to the 183 waterboards came in a passage where Steven Bradbury tried to make his consideration of waterboarding look balanced — weighing the purported necessity to do it against what CIA’s IG had found to be excessive. In this really lawyerly voice he wrote, well, yes, KSM was waterboarded 183 times in a month but on the other hand…, as if there’s some way to make 183 waterboards in a month look like it served any real purpose. A reader and I both found that reference and I kept writing about it until eventually Huffington Post and then NYT picked it up from there.

A year later, I happened to be at DOJ when one of the press people was sending out another set of FOIAed torture documents. I said, What are you telling them it’s about? What is really there? She laughed, and admitted that I would find much more interesting things in the release than she was letting on with other journalists. Government public affairs people unsurprisingly try to limit what reporters will see in released documents by tipping them off to story-worthy but maybe not the most damning parts. The government has been tremendously successful in working the press this way in the wake of the Snowden disclosures, basically hiding stuff in plain sight while — I’m quite certain — inoculating themselves against future claims that Congress or litigants weren’t fully informed.

Q. You have done some remarkable work at your current blog, Empty Wheel, particularly your work on revealing what was happening with NSA’s surveillance. Aside from Edward Snowden, you’ve likely read more classified government reports than anyone else, maybe even within the government. First, how could you tolerate so much crap?  Second, the sheer volume of papers must have been overwhelming. What made you persist? Of all the things you’ve seen, what stands out as the most outrageous thing the government did and concealed from the public?

A. I keep promising to plant a grove of trees and name it after Snowden for all the paper I’ve gone through reading both documents he released and those the government has released in response.

As I guess I’ve already made clear, I still have that academic instinct to wade through archives over years. But I’m also very much cognizant of this — the publicly released documents, far more than what comes directly from the Snowden archive — that no one else is reading. And there are public claims that the government floated, and many people still believe, which are just the result of the government making bogus claims to the FISA Court. One example is the government’s claim the PATRIOT dragnet programs were just mistakenly out of control until 2009, when all the evidence makes it clear they were just knowingly blowing off the FISC’s more stringent limits on PATRIOT authority activities over EO 12333 programs.

On what is most outrageous? There are things the government is still hiding — we still only know part of what caused the hospital crisis in 2004, for example, and FBI’s response to getting scolded on surveillance authorities in the 00s was to get more secretive, even from Congress, even as it was getting more power. Other than that it’s the confirmation of things we worried might be true — that the torture was worse than what CIA’s IG found, that the government was using terror threats they had reason to believe weren’t real to get torture and dragnet surveillance reauthorized — that most pisses me off.

Q. It was one thing to be progressive when George W. Bush ran the joint, but after Barack Obama was elected President, you demonstrated the principled approach of scrutinizing his initiatives as well.  You were critical of the auto bailout and particularly Obamacare. What made you put principle over politics?  Your scrutiny must have cost you some friends in liberal circles, and you suffered some criticism for not sticking with the party line. Did that change your view of Democratic party politics, liberal and progressive politics? Did you become disenchanted with the concept, or did your views evolve after seeing the damage politicians had done?

A. Oh, I supported the auto bailout—I’m a Michigander! I would have done some things differently, particularly to ensure the lasting value of the investment put in. But I supported it and think the auto bailout worked better than the serial bank bailouts have.

On ObamaCare, I support the idea of making health care more accessible and cost-efficient. But I was critical of a number of things — like overall affordability and the Cadillac tax — that boosters wanted to gloss over. And here we are, six years later, finally admitting the Cadillac tax needs to be fixed! Pointing that out while the bill was still being debated absolutely got me disinvited from some swank party functions, but it probably matters less for me since I don’t live in DC. And I don’t think the demand for party loyalty in the face of bad policy is any different on the Republican side than it is on the Democratic, or even within a movement. I pissed off civil liberties lobbyists at least as much during USA Freedom Act as I did Democrats during ObamaCare, especially since it was clear, on USAF, I had done the analysis some of the lobbyists hadn’t.

I haven’t so much become disenchanted as focused more on working, where possible, in transpartisan coalitions, such as the left-right coalition that works on surveillance issues together. Partisan organizations are a very crucial part of influencing policy in DC, but you also need to be working with people who are willing to upset the DC consensus when necessary.

Q. How does your blog, Empty Wheel, fund itself? And how do you fund yourself? You don’t run ads, which would be unseemly at best, and you have no open and notorious sponsors, but blogs don’t pay for themselves. You have a donate button, but does that bring in sufficient support to keep Empty Wheel alive?  And certainly you need to eat, not to mention enjoy the occasional moment when you’re not trying to figure out what “connection chaining” means in the USA Freedom Act. How does Dr. Wheeler manage it? And how long can Dr. Wheeler keep it up? After all, without Marcy Wheeler and Empty Wheel, who is going to read through all those pages of bureaucratic gibberish to keep us informed?

A. The big secret to my funding model is living in an inexpensive city, Grand Rapids, MI, with a gainfully employed spouse and no kids. It’s a lot easier to maintain this kind of independence if you’re not living in DC or trying to save for kids’ college tuition. I pay my bills by writing for others and getting donations, sometimes generous, from readers, though I keep meaning to raise a lot more money so I can start bringing FOIA lawsuits. So if anyone wants to donate …

Seriously, though, I fill a gap that larger organizations really need to address (and fund). Since 9/11, FOIA lawsuits and leaks have been as important to learning what the government is really doing as source-based journalism. And aside from VICE’s Jason Leopold and NYT’s Charlie Savage, most of the FOIA suits are being done by NGOs — ACLU, EFF, Judicial Watch, and some others. But those NGOs aren’t necessarily unpacking those documents; with one or two exceptions, not even the lawyers litigating those programs are. Plus, on surveillance (torture is different, and the Gitmo lawyers have been great on these issues, but of course they’re all bound by protection orders), a lot of these disclosures aren’t going to be usable unless it gets highlighted to defense attorneys, because only their clients will have standing to do anything about these programs. EFF and ACLU are, to some extent, bridging out to defense attorneys. But still, we’re getting some transparency but thus far, and it largely means formerly secret things are now being hidden in plain sight.

Cross: Noel Erinjeri, The Guy In Front Of The Tank

Jan. 13, 2016 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Michigan criminal defense lawyer Noel Erinjeri, who traveled from Missouri public defender to Michigan solo, and now practices with Neil Rockind.

Q. With Merit Scholarship finalist on your application, you went to the University of Michigan, majored in physics and had your eye on practicing medicine. What went so horribly wrong? Did there come a point in time when you realized that being a physician wasn’t right for you? Why? There seems to be a surprising number of lawyers who studied physics. Is there a connection?

A. I was basically pre-med by default, in that I didn’t really have a strong idea of what I wanted to do, and medicine seemed like a good option. College was also a big adjustment for me in that it was the first time I ran into a situation where I couldn’t just “get” something, no matter how hard I was studying.

I realized that being a doctor wasn’t for me when I realized that I didn’t actually like biology or chemistry (especially chemistry), and that 8-10 more years of studying exclusively bio and chem wasn’t for me. As for physics majors becoming lawyers, I don’t know if there’s any kind of direct connection. There definitely wasn’t for me, it was just the way life worked out.

Q. Looking back from the vantage point of an experienced trial lawyer, how did your college education frame who you are today? In particular, physics is a very rigorous course of study, and some (like me) might say that the demands are far tougher than the softer field of humanities. Should lawyers study hard science in order to train their minds for a future of trying cases? Did physics make you a better lawyer, or have no impact on your perspective?  On the other hand, do you think there’s a gap in your breadth of education because of your focus on science rather than, say, history or philosophy? Which way would you recommend future lawyers to go?

A. My physics knowledge at this point has probably regressed to that of a college sophomore. But the intangibles remain. Specifically, studying physics taught me how to stare at a problem set for as long as it took to solve the problem. And if I didn’t know how to solve the problem, how to figure it out. There have been quite a few times, the night before trial, where I’ve been staring at a case file deep into the night, and all of a sudden, there’s that light bulb moment where I think of something important. The parallels between that and suddenly realizing at 2 a.m. how to solve a weird line integral are uncanny.

Physics was good preparation for law school, not because physics has anything to do with law, but because it was a step down in terms of difficulty. After quantum mechanics and general relativity, the elements of negligence and the Rule Against Perpetuities just aren’t that hard. Reading 500 pages a week of caselaw is practically a vacation compared with a problem set a week in upper-level physics courses.

As for future lawyers, I would say study what you’re interested in, whether it’s science or the fuzzy subjects. The content of your undergrad degree probably won’t matter much, either in law school or in practice. What’s important is that you “learn how to learn,” how to think your way to a solution without consulting the answer book.

Q. Then you decided that for a physician, you would make a good lawyer. Despite the fact that you had a strong educational background and were clearly a very smart guy, you did the one thing that would dumbfound most law students today: you went to Cooley. Why? Was it the scholarship? Sure, it was close to home, but wouldn’t Harvard be worth the trip? Did you have any concerns about its rep? Did you know about its rep? Did you care?

A. Heh. Harvard wasn’t really an option in any case. Part of it was the scholarship (full ride, based on my LSAT score), was because I had a job in the Lansing area working for Kaplan as an MCAT and LSAT teacher. Between the scholarship and the scheduling flexibility Cooley offered, I could work all I wanted for Kaplan and still go to school and graduate in three years. I used to joke that I was the only law student in America who made money while in law school. Also, I managed to graduate debt-free, and that becomes more significant with each passing year.

As for Cooley’s reputation, it was probably somewhat better then than it is now. Everyone knew they had a liberal admissions policy, but I started before the size of their entering classes went from “very large” to “colossally enormous.” Their attitude seemed to be that they would give almost anyone a shot, and if you couldn’t hack it, out you go. “Large entrance, small exit” was the way we put it. I was completely willing to take them up on it.

Q. So Thomas M. Cooley Law School. It doesn’t have the best reputation around, and given its 2015 bar exam pass rate of about 38%, it would seem the rep is well deserved. What gives? What was your experience at Cooley? How does a guy who attended Michigan view his legal education at a law school so far down the list that it doesn’t even make the Third Tier Toilet?

A. I actually had a very good experience there. The quality of instruction was very high, in my opinion; and law school is a little bit different in that Palsgraf and International Shoe read the same whether you’re in Lansing or Cambridge. It also helped that criminal law is not an area where pedigree is very important. That said, I did realize pretty early on that working on Wall Street or becoming a Supreme Court clerk was probably out even if I graduated at the top of my class.

There were definitely “two Cooleys.” The part-time students (mostly in their 30s and 40s) pursuing second careers tended to be serious and dedicated, and did an amazing job of balancing school and adult responsibilities. There were also a lot of twentysomethings for whom law school was more in the realm of post-undergrad babysitting. But like anything else, you got out what you put in, no matter how old you were. The school would teach you how to “think like a lawyer.” The rest of it was up to us.

For the record, the bar pass rate is a more recent phenomenon. For my bar class, the pass rate for (first-time test takers) was around 80%, which was competitive with other schools in the state not named the University of Michigan. Re-applicants were a different story.

Q. From law school, you went to the Missouri State Public Defenders Office. What kind of cases were you handling? You did a ton of bench trials, and a few jury trials. Did you experience the normal “first trial debacle” like so many other lawyers? What did you learn from it? Was it what you expected? Did you knock it out of the park from day one, or did you learn a little humility in the trenches?

A. I handled, quite literally, every kind of case that didn’t involve a dead body in Callaway County, Missouri. My first trial came about a year and a half after I started the job. (The prosecutors had a habit of not taking BS cases to trial, and of making pretty reasonable offers for the most part, the bastards.) It wasn’t a debacle, but it was a tough case and the prosecutor ate my lunch. In any case, I lost, and the jury wasn’t out very long either.

The biggest lesson from trying a case for the first time is the amount of time and effort it takes in the weeks and months leading up to trial to do it right. Instructions, opening and closing, voir dire questions, direct and cross, anticipating possible objections, coming up with backup plans and backups to the backups; and in the end something unexpected will happen and you’ll have to improvise. But if you haven’t done the work beforehand, you and your client are sunk. My wife learned quickly that the phrase “I have a trial next week” meant that we wouldn’t be seeing much of each other for a while. That was the main lesson, that it was so all-absorbing.

I was incredibly lucky in that I got to work with an amazing group of co-workers, all of whom loved the job and took it seriously. Especially my boss, Justin Carver, who took an inordinate amount of time in mentoring me and answering all my stupid questions.

Q. You spent five years at the Mizzou PD. What did you realize coming out that you didn’t realize going in? Was it your goal coming out of law school to represent the indigent, or was that just a job opportunity, a place to hone your trial chops? Was representing the poor what you expected? Did you enjoy the respect and confidence of your clients, or were you called “public pretender” as they wished for a “real lawyer”?

A. I actually wanted to be a prosecutor coming out of law school. Unfortunately, I graduated in 2008, when Michigan basically became a 3rd world economy. Prosecutor’s offices were getting literally hundreds of applications, and they were turning away people with five years of prosecutor experience for part time positions. I ended up with MSPD because it was really important to me to work in criminal law, regardless of which side, and they were the first to offer me a job.

The clients were a mixed bag. Most of them were ordinary people who had done something dumb. Some of them were just chuckleheads, and unpleasant ones to boot. The “public pretender” thing was there, that prejudice is almost inevitable when people aren’t choosing (and paying for) their own counsel. But the cool thing was that even with the most cynical, suspicious, clients; I never heard any BS about “public pretenders” after a contested hearing. There was something about the first time I stood up and said “Objection!” that actually opened their eyes to the fact that I was there to fight for them, not sell them out.

But what was worse than suspicion was indifference. From time to time, I’d be filling out a new PD application with a client I’d represented on a previous case. One of the questions on the applications was “Have you ever had a lawyer before?” Many former clients would check “No.” I’d give them a look, and they’d say, “Oh yeah, you, but I thought you meant a real lawyer.”

Q. When you left the public defender’s office to return to your Michigan roots, it wasn’t so much a matter of choice but because you followed your wife, whose job brought her back to Michigan. Any regrets? While five years as a PD isn’t exactly a life time, it’s long enough to establish some serious roots. Having put in the time in the Missouri trenches, what was it like picking up and moving on to your legal career?

A. No regrets. Neither my wife nor I wanted to settle long-term in Missouri, and for lawyers in government service, five years is probably about the point where either you commit to making a career out of it or start looking for greener pastures. I miss the hell out of my friends and colleagues in Missouri, but it was the right decision.

Actually, moving to Michigan wasn’t as much of a problem as opening my own practice. I’d kept my Michigan license current since 2008, so there weren’t any worries about passing the bar or waiving in. What I thought would be really complicated, setting up an LLC, only took $100 and a two page application. What worried me was that I had talked to several Michigan lawyers in the months before the move, and all of them said that it would be almost impossible to make a living doing criminal law alone. This bothered me, because I have about as much interest in civil law as I do in watching grass grow. I was really lucky that my wife had a good job and that I had some room to try and get off the ground. In my head I gave myself three years. If I wasn’t making a decent living by then, or at least on the way to it, I was gonna have to do something radical. Forunately, it never got to that point.

Q. When you returned to Michigan, you hung up your own shingle. I have to add, the pic on your website is my all-time favorite for a criminal defense lawyer.

noel
What did you anticipate when you struck out on your own? Was this what you wanted to do, or did circumstances not offer you a choice? Were you ready to open up shop? Did your time in the PDs office prepare you to run a law office? Did you have a clue where your clients were coming from? After all, your reputation was established in Missouri, and you were basically a Michigan virgin. How hard was it to open your doors? How scared were you that the phone would never ring?

A. My guess was that I would go from relief that I no longer had a giant caseload, to nostalgia, to stir-crazy in about six months. I was wrong, it took about three months. Five years of being a PD had turned me into an adrenalin junkie, and I’d lost my fix. If it had been up to me, I would have liked to been an associate in a criminal defense firm, as opposed to out on my own. Unfortunately, most criminal defense firms are pretty small, and probably wouldn’t hire some unknown quantity from Missouri anyway. So it had to be the shingle.

There was absolutely nothing about being a PD that prepared me for running my own business. I was lucky enough to find a “workspace” that would cover everything I needed (desk, mail, fax, copier, internet, conference room) for the absurdly low price of $178.00 a month. (The next cheapest place I had found was about $650 a month.) It was also good for my morale. On days the phone wasn’t ringing, at least I was still at “the office” where things were being done. An illusion, but a comforting one.

Q. Your solo practice lasted ten months. What did you learn during that time? Where did your clients come from? What did it feel like when you sat down at your desk and stared at the silent phone? Too many people think that just because you’re a lawyer, people start throwing oodles of money at you. Did anybody throw oodles of money at Noel Erinjeri?

A. I had to learn all the procedural stuff all over again, along with the differences in plea-bargaining that come with a determinate sentencing scheme. Also, big-city practice was different from a county where there were three prosecutors and two public defenders. Things I used to settle in a 30-second phone call now took two weeks. I thought it would take at least a year to get the hang of it. I was pleasantly surprised that I feel like I was back up to Missouri standards in about six months. I had one really big win in this period (sentencing, not trial) that was as good a piece of work as anything I had managed in Missouri.

Most of my first couple months was about getting my name on the indigent roster of every court that would have me. (Metro Detroit doesn’t have a public defender office. It has a court-appointed attorney system, a really crucial difference.) Money wise, the big adjustment was not having a steady paycheck. It was feast or famine. It really gave me some perspective on the pressures that private attorneys who take on indigent defense face: I was making more money on retained traffic tickets than I was on appointed felonies.

The silent phone was definitely rough. I got some retained work, referrals from a more experienced attorney who was helping me out, and was trying to get my name out there. Criminal law isn’t really a field that lends itself to generating business by “networking,” as you can’t really encourage people to put themselves in a situation where they require your professional services. Of course, maybe I just wasn’t doing it right.

As to “oodles” of money being thrown at me, if you totaled up all the money I made on my own, it might make half an oodle. I turned a profit, in that I made more money than I took in, but it wasn’t enough to live on. It wouldn’t have been possible if my wife wasn’t working. I was about a week away from signing up to take some courses on family law and bankruptcy law to expand my practice areas (tough for me, because I’m a criminal defense attorney) when another opportunity came along.

Q. After ten months solo, you were taken on as an associate by Neil Rockind, who obviously saw your talent and recognized that you would make a strong addition to his firm. What type of work did you do? Was it easier to hook up with an established, well-regarded lawyer than do it on your own? Now that you’ve found a new home in Michigan, are you happy with your decision to go to law school?  Are you happy that you didn’t decide to pursue medical school?  Where do you plan to go next?

A. To paraphrase Lou Gehrig, today I consider myself to be the luckiest lawyer in Detroit. I’m working for the best, and best-known, criminal defense firm in Michigan. The cases we get tend to be more complex and more challenging; and, in the end, much more satisfying. I definitely like working for Neil better than being on my own. It’s the best of being a PD and private attorney. I have a manageable and interesting caseload, and I only have to worry about the practice of law, not the business of law.

It’s been ten years since I started law school, and seven since I became a lawyer. What a long, strange trip it’s been. As for what’s next, I’ve got a pretty sweet gig going now. But eventually, I’d like a robe and a gavel. We’ll see.

Cross: Murray Newman, The Prosecution Eventually Rests

Dec. 23, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Houston criminal defense lawyer, former prosecutor-for-life and Fault Lines contributor, Murray Newman.

Q. You interned with the Brazos County District Attorney in college, and went straight to work for the Harris County District Attorney after law school. You wanted to be a prosecutor. Why? Was it that prosecutors were the good guys? Was it to put all the bad dudes away? Were you saving the world?  Did you consider anything other than being a prosecutor? Were you a true believer?

A. I grew up across the street from the elected D.A. in our county and I remember that when he was prosecuting a capital murder case, the whole town was up in arms about it.  I thought what he was doing was so important and so cool.  I wanted to work on murder cases too.  I was a morbid kid, I guess.

I wanted to be an FBI agent pretty much until I was in college.  It just seemed bad ass to me. Ultimately that FBI agent idea gave way to being a prosecutor.  I didn’t think I was going to save the world, but I thought I would always be fascinated by criminal law.  I was right about that part.  It’s probably fair to say I was a true believer back then.

Q. Many baby prosecutors suffer from a grossly mistaken self-image that the reason they are treated so well by judges, they win so regularly, is that they’re just the greatest lawyers ever. Was that you?  Did you indulge the fantasy that it wasn’t because you were a prosecutor, but just a brilliant lawyer, that allowed you to enjoy great success in the courtroom?

A. In Houston, we start out trying misdemeanors for the first year or two, and the majority of those cases were DWIs.  Those cases are normally such toss ups that you are happy if you have at least a .500 batting average.  I think they sent us all to misdemeanor first to help break us of the notion that we were God’s gift to litigation.  When you finally get called up to do felonies, those are generally better cases and the ego starts developing with all of your wins at that point.

Yeah, I was probably guilty of having an overinflated sense of worth as a trial lawyer.  Getting the first “not guilty” on a felony case was a big kick in the crotch.  In retrospect, of all the felony cases I took to trial, only three or four of them were really tough cases for the prosecution.

Q. One of the benefits of being a prosecutor is that you get to try cases.  What was your first jury trial? Were you a master or a master of disaster?  Looking back, did you do a great job or do you cringe now at how you tried the case?

A. I actually tried my first case when I had a student bar card and was working as an intern back home in Brazos County.  It was just a simple DWI with a breath test refusal, but it was against the best defense attorney in town. He handed me my ass, but he told me that I did a good job, so I was proud.

I remember picking my first jury and basically announcing to the jury that I was scared shitless and pleading with them not to pick on me too bad. That’s kind of embarrassing in retrospect.  Since it was in my hometown, I think I knew about ten people on the panel.  Other than that, it wasn’t too bad.

Q. Prosecutors are given enormous discretion in how to deal with other people’s lives. Did you appreciate that as a young prosecutor?  Did you feel you had sufficient life experience, sufficient understanding of other people, that you were qualified to make life-changing decisions?  Did there come a time when you realized, “holy crap, if I’m wrong, I could destroy a human being’s life?”  Was this power exercised with humility or hubris?  Did there ever come a time when you realized the seriousness of your decisions, and started to question whether you might be wrong?

A. I think the thing that defense attorneys who were never prosecutors don’t get about the job is just how much prosecutors believe themselves to be the victim’s representative.  We typically didn’t look at it from the perspective that we were representing the State or playing with other people’s lives.  We looked at it like we were there to seek justice for the victim.  That’s where so much of the self-righteousness that is associated with the prosecutorial profession comes from.

None of us thought we needed more life experience because we knew what was right and what was wrong.  That’s all we needed to know.  In retrospect, the lesson that we might have learned from more life experience would have been to actually consider the other side of the story:  the defendant’s family, his circumstances in life, etc.  Theoretically, prosecutors know that Defendants are people too, but we are too busy wielding the sword of justice to worry about that.

There was a moment toward the end of my career as a prosecutor, where I prosecuted a gang leader who couldn’t have been more than 19 years old.  He had ordered two hits, including the murder of a 14-year-old kid and he was sentenced to life in prison.  As I was leaving the courtroom, the guy’s little son was running around in the hallway, and he ran up and hugged onto my leg.  I was a new father at the time, and I had just persuaded a judge to sentence this little kid’s dad to life.  I felt like shit.  There wasn’t any doubt that the kid’s dad was guilty, but the collateral damage weighed pretty heavily on me. It still does.

Q.  Plea bargaining is widely criticized for pushing innocent people into pleas, particularly when insisting on innocence could mean awaiting trial in jail when copping out meant going home. Did you give this much thought when fashioning plea deals?  Did you think more about the weakness of your case and possibility of losing than the possibility that a sweet offer could coerce an innocent person into pleading guilty?

A. I can’t really say that I gave it all that much thought, at least not that I recall.  I tried to be a prosecutor that would listen to whatever a defense attorney was trying to tell me. I’m not saying that I believed everything they said when they asserted innocence, but I don’t recall any incidents where I was saying “screw you and your innocence claims, perhaps some more time in jail while you can’t make bond will change your mind.”

I wasn’t scared of dismissing a case where I thought somebody was innocent, but I wasn’t a pushover, either.  All prosecutors will make lower recommendations on cases that they think are difficult to prove, but we usually felt comfortable in our own minds that the accused was factually guilty.  If we weren’t certain of that, we were told that we shouldn’t be making an offer in the first place.

Q. In 2008, you left the Harris County District Attorney’s office, under less than desirable terms. Or as you call it, when the Sith Lords took over. You weren’t quite ready to go, but a shift in management with the election of Pat Lykos, whom you didn’t support, put your head on the chopping block.  Were you surprised at how politicized your office turned out to be? Did you have any desire to go to the dark side, or as hard as it was to be turned out, did you really want to continue putting the bad guys away?  Did your former adversaries accept you as one of them? Was there any payback for things you did as a prosecutor?

A. I probably would have been a lifelong prosecutor if Pat Lykos hadn’t handed me my walking papers. I loved the job and I loved the people I worked with.  I knew that opposing Lykos during the election was an “all or nothing” proposition and that I would get fired if she won the election.  She didn’t disappoint!

I do think that the Lykos era was a drastic departure from earlier administrations because everything she did was so publicized.  Her administration invited media attention whenever they wanted an attaboy, and that is what led to the Office being more politicized.  I think that has continued after Lykos got voted out and I don’t think it’s good for the criminal justice system.  When you invite attention to all of your successes, you also open yourself up to more scrutiny of your failures.  I think that leads to more reluctance to dismiss tough cases.

The irony is that Pat Lykos probably did me the biggest favor of my life.  I think my life has a lot more balance and happiness in it now.  I like being my own boss. I like helping people who need it. Every once in awhile I will read about some really upsetting case and think, “Man, I’d love to be the prosecutor on that one,” but generally I don’t miss the job description all that much.

The thing I miss the most is probably the camaraderie with the other prosecutors, but I still see most of them.  The defense bar here could not have been more welcoming.  People like Dan Cogdell, Mark Bennett, Pat McCann, Pete Justin, Tyler Flood, Charles Thompson and a laundry list of others went out of their way to help me figure out everything.  I owe them all tremendously.  I must not have been too big of an asshole as a prosecutor, because I never have had anyone come up to me and say, “Now that you’re on our side, let me tell you what a prick you were as a prosecutor . . .” At least, I hope that’s the case.

Q. You started a blog, Life at the Harris County Criminal Justice Center,  around the time of Pat Lykos’ run for office. Why? What made you think it worthwhile to reveal the inside story of what was going on in your office?  When you started the blog, you did so pseudonymously. Did you think no one would figure out who you were?  How did that work out for you? In retrospect, was it a good idea or a bad idea?

A. I started the blog in 2008 when the D.A.’s Office was going through a huge scandal over some racist e-mails that our boss had sent.  I remember picking a jury and we had to address the issue of what the venire panel thought of our office.  It wasn’t pretty.  The media was bashing us right and left.  The initial intent of the blog was to offer some minimal type of rebuttal as to who we were.  The little description that I had back then (and still do) is “An insider’s guide to what is really happening . . . “ I didn’t think we were being treated fairly.

I wrote anonymously so that nobody would think that I was speaking on behalf of the D.A.’s Office.  For the first month or so, only my wife knew, but it didn’t take too long for my secret identity to be the worst kept secret in the courthouse.  When I finally officially announced my name on the blog, there were some attorneys who came up to me and said “I had no idea it was you!” and I was always stunned.

Although I think my personal blog has probably long outlived its usefulness, it had a good run in its prime.  I don’t regret it at all.  As a matter of fact, I’m proud of what it accomplished when it was more relevant.

Q.  After being ousted by Darth Lykos, you decided to open up shop as a criminal defense lawyer. Were you ready to start defending the people whom you had spent your career putting away? Was it just a job, or did you come to realize that there were two sides to the story, that they weren’t just the evil criminals prosecutors thought they were? When did you reach the point where you were good with the idea of being responsible for defending the accused rather than convicting them? What caused that change of perspective?

A. Being honest, I think I looked at defending people as just a business decision in the beginning.  I was trained to do criminal law and I was no longer a prosecutor.  It didn’t take a genius to figure out what the next step was.  I felt confident that I could do it on an intellectual level and I didn’t have any worry about doing it.  I knew the job description and I knew how to do it.  I don’t think I realized how internally responsible I would end up feeling for each client.  Even if I couldn’t solve “ALL” of their problems, that agonizing feeling of finding a way to help improve their situation somehow was unexpected.

I don’t think I anticipated how much I would come to really like my clients and care about how the story ended for them. I got to know their families and regarded them as friends. I think the change in perspective happens naturally when you have a client you like and realize that what the State is trying to do to them is bullshit.  Fighting for someone accused of something bonds you to them even more than the way a prosecutor bonds with a victim’s family, in my opinion.

Q. In 2013, you learned you had leukemia. How did that affect your practice, your life, your world?  You had kids, a family, a law practice that only supported your family as long as you were working, and then you had cancer. You underwent chemo, and came out the other end. Did that change you, your goals, your aspirations?  Did you wonder whether you made the right choices in life?  What happened to your practice while all this was going on?  And did you learn who your real friends were, as is so often the case when adversity strikes?

A. I got really really lucky with how low-grade my leukemia was, and that is something that will never be lost on me.  My doctors were great and told me that it was all going to be fine and I believed them.  I never had one of those “long examinations of my own mortality” moments.  I did have to miss some work but not all that much.  I kept it to myself with the exception of some very close friends and colleagues, because I knew I was going to be fine.  I didn’t want to be a complete attention freak when what I had was so much lighter than what others were going through.  Those co-workers that I did tell about it were phenomenal – especially Luci Davidson, who was there to help me with everything.  They covered cases for me and checked on me.  We were very fortunate that my wife had good insurance or we would have probably been bankrupt.

Q. You’re now seven years past the day you had to pack your bags and leave the Harris County District Attorney’s office. Do you miss it? Is there still a voice in your head that tells you to prosecute rather than defend?  Even though you are now solidly accepted within the defense community, is there still a soft spot in your heart for the prosecution? If you got a call tomorrow, would you return to the District Attorney’s office and get to work putting the bad dudes away?

A. I think I will always have a soft spot in my heart for the prosecution  Part of that is because I think that while some complaints about prosecutors are valid, I think many are not.  I may not always agree with prosecutors and individual things they do, but it isn’t like the profession should be abolished.  There are a lot of damn fine people and lawyers who choose that profession and they do it for the right reasons.  There will always be the power hungry ones that screw up the reputation of others (just like there are in any profession), but I hate to see the tendency to vilify a prosecutor just because you disagree with them.

I worked for a long time with some great people.  I do sometimes miss having all my friends right down the hallway of where I work.  Like I mentioned before, every once in a while I’ll see that case that I’d love to be prosecuting, but other than that, I’m happy where I am.  Once you find yourself free of a bureaucracy and doing your own thing, it is hard to want to go back to having a supervisor and explaining your every move.  Then again, I do keep getting remarried. [Ed. Note: Murray is on his third marriage, but swears this one will last.]

Cross: Charles Lavine, Cleaning Up Corruption In Albany

Dec. 16, 2015 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses New York State Assembly member Charles Lavine (D-Glen Cove), Chair of the Assembly Ethics Committee and a former criminal defense lawyer.  Assemblyman Lavine authored a New York Times op-ed following the convictions of Assembly Speaker Sheldon Silver and Senate President Dean Skelos.

Q. Before being elected to the New York State Assembly, you were a criminal defense lawyer, starting with the representation of indigent defendants at the Legal Aid Society, becoming a member of Grossman, Lavine & Rinaldo, and then going solo. That’s a lot of baggage, in terms of experience and exposure, particularly since you took the most difficult route possible, primarying an incumbent just to get to the general election. Why? What drove you to take such a crazy chance? Was your history on the wrong side of the courtroom used against you? What does it take for a criminal defense lawyer to win an election?

A. I had always been involved in some type of politics. Before running for the Assembly, I had been Democratic leader of the Glen Cove Committee, counsel for the Industrial Development and Community Development Agencies, served two terms as counsel for North Country Reform Temple, served on the Planning Board and on the City Council. I had also fought to elect good people to my school board and for responsible school budgets. By 2004, passing school budgets in Glen Cove and other communities had become very difficult in part because New York State hadn’t had a budget on time for 20 years and it was impossible to know how much state funding would be available when education budgets were voted upon. I ran on a platform of on time budgets, the fundamental building blocks of good government. I never viewed fighting for what was right as “taking a crazy chance,” perhaps in small measure because of the years I spent representing unpopular people.

Being a defense lawyer in controversial cases was used against me. I believe, though, that it probably got me more votes than it cost me. The people who would hold the crimes of my clients, primarily appointed clients, against me would likely never vote for anyone like me anyway.

Criminal defense lawyers who have been involved in their communities and local governments and have some experience in politics can win elections. Whether prosecutors or criminal defense lawyers, it is critically important to have good lawyers in elected office.

Q. On the day you got off the (metaphorical) bus in Albany, you must have had some anticipation of what you would be looking at as a member of the state Assembly. Was it what you expected? Did you expect politics to be altruistic or dirty? Did you expect your colleagues to be knowledgeable, dedicated public servants, putting the interests of their constituents first and foremost?  What did you find there? What surprised you, thrilled you, appalled you, when you took your seat in the Assembly?

A. Human nature is the same, whether in local or state government. As in local government, most of the members were well intentioned and dedicated. What I did not anticipate was the skill, professionalism, knowledge and dedication of the staff. While little appalled me, it was extremely distasteful to witness the manner in which some Senators gloated on one of the evenings that marriage equality was defeated. Whether for or against, the debate was about human rights and deserved far more respect from those who were victorious than night. Their victory, however, would prove to be short lived.

Q. The view of lawmaking from the outside is never quite the same as it is from the inside. No doubt you could have rattled off a few dozen changes in law that were absolutely needed when it came to the New York Criminal Procedure Law and Penal Law, having lived through the mess as a trench lawyer. As a rookie legislator, was anyone interested in doing anything to reform the mess?  Did you have the chance to make changes or were you met with fellow legislators who thought the new kid should be seen and not heard?  Was your experience shown respect, or were you relegated to the seat farthest away from power and influence?

A. The Assembly conducted the most extensive hearings on the death penalty in American legislative history starting in the months before I was sworn in. While I was allowed to sit with the members for the initial hearing, I asked no questions before being sworn in, after which I was able to engage and play a meaningful role in that I was the only member who had ever handled death penalty cases in both the state and federal courts. I believe my opinion and knowledge were valued and I am very pleased that those hearings were instrumental in ending the death penalty in our state.

Q. As a newly elected, first-term Assemblyman, having just won a two-year term of office and still exposed to the potential of being unseated in the next election, what was the impact of having to run again, to raise money to fund your next election a mere two years off?  Certainly, the support of the party would be crucial in keeping your seat, Was this a means of keeping a new legislator under control, toeing the party line lest he be the target of a primary with the support of the party leader?  How much room did you have to move, regardless of what the party wanted you to do?

A. Interesting question. I have experienced political pressure, but very rarely by party leaders. That pressure came more from special interest groups. For example, the NRA once said it wanted to “take a shot at getting rid” of me and was “targeting” me for defeat. Tea Party opponents once brought an armed gunman to a debate I was having in a synagogue. When I supported consolidation of local governmental services, some local village officials were very antagonistic. One must be somewhat thick skinned and it also helps if one is not unduly afraid of controversy.

Q. In the aftermath of the convictions of former Assembly Speaker, Sheldon Silver, and former Senate President, Dean Skelos, two of the “three men in a room,” and with rumors swirling that the third man, Governor Andrew Cuomo, might soon find an indictment with his name on it, some might have suggested the best political move for a legislator was to keep a low profile, stay under the radar. Instead, you wrote an op-ed for the New York Times suggesting changes that might end the corruption reflected in these convictions. What were you thinking?  Why go counter to the common wisdom of keeping your name off Preet Bharara’s short list to take a chance by going public?

A. I became Chair of the Assembly Ethics Committee, Co-chair of the State Legislative Ethics Commission and Chair of a taskforce charged with redesigning the Assembly’s sexual harassment and retaliation policies in 2013, in the midst of the Vito Lopez crisis. Even though those positions involved very steep learning curves, they provided me with a unique vantage point from which to evaluate the ethical debacle that has led to the convictions of the Assembly Speaker and the last six Senate leaders. Writing the Times Op-ed was my responsibility and obligation. I believe United States Attorney Bharara is a consummate professional and I have no reason to fear that I will become a target of any investigation. The prosecution of legislative wrongdoers is an essential ingredient of good government.

Q. In your op-ed, you confront some very real problems that elude the understanding of many member of the public.  One of your most significant points is that the Assembly needs to change to four year terms from the current two years, relating back to the fact that it leaves legislators with about a twelve hour honeymoon before they have to hit the streets to fund their next election. The reaction in the Times’ comments wasn’t entirely positive, with many suggesting that a four year term just lets corrupt politicians stay in office longer. How do you explain the real life incentives faced by politicians to people who are sick and tired of politics?  If the public view of politicians is so cynical, and why wouldn’t it be given the convictions, how can they be convinced that there are legislators in Albany who aren’t there to enjoy graft and power?

A. My Op-ed piece does not call for four-year terms. It addresses reforms that the Senate and Assembly could take on their own to improve the legislative process and, in so doing, improve the legislative product. I remain an admirer of President John F. Kennedy and am still moved by his call that we ask not what our country can do for us, but should instead ask what we can do for our country. That sense of selflessness is an important ingredient of American exceptionalism. It is not a philosophy shared by some my colleagues who are intent on frustrating shared efforts, that is, governmental efforts, to make life better for our people. If we value our families, then we are dedicated to our communities, which are simply collections of our families. Government is nothing more or less than the organizational extension of community. My colleagues who revel in cynicism are engaging in the most cowardly forms of demagoguery.

Q. As you also make clear in your op-ed, the whole citizen-legislator schtick sounds a lot better from a populist point of view than it does from the perspective of legislators trying to get anything accomplished.  You write:

Despite the fact that New York is one of the largest states in the country and one of the largest economies in the world, my colleagues and I work shockingly few hours: Next year we are scheduled to spend just 57 days in Albany between Jan. 6 and June 16, when the legislative session ends.

Thirty of those days will go toward completing the state budget, due at the end of March. Those days will be totally consumed with fiscal analysis and negotiation, leaving only 27 days between April 1 and June 16 to consider all other governmental business, including more than 10,000 bills. There’s little chance we’ll get to more than a handful of those.

The numbers reveal an obvious and insurmountable problem, and explain a lot about why laws in desperate need for enactment or reform, like the dreaded archaic P.L. 265 knife law that has been so badly abused by police and damaged so many lives, will never reach the top of the list for consideration. If the Assembly doesn’t go full time, does that mean there is no hope for reform? What does a former criminal defense lawyer tell working guys who are arrested and prosecuted for nonsensical laws, whose lives are ruined because Albany doesn’t have the time to care?

A. We have to realize that the Assembly has been far more interested in modernizing our criminal laws than has the Senate. Mentioned earlier, the extensive hearings on the death penalty were conducted in the Assembly, not the Senate. As presently constituted, the Senate would easily and has easily passed bills reinstituting the death penalty and increasing criminal sentences whether justified or not. I would tell New Yorkers not to give up on the hope that change can be accomplished. That change, however, will remain elusive so long as the public is disengaged and lacks faith in its elected representatives to bring that change about.

Q. It seems the legislature is far better at passing new laws than cleaning up the mess of old ones that need fixing. And yet, the latest flurry of penal issues, such as bullying and campus sexual assault, raised significant and, perhaps, insurmountable constitutional issues. Does the legislature think about these problems? Do they understand the problems they create? In light of the popular support for ever more crimes, does the legislature have the guts to just say no to laws undermining due process?

A. There are any number of proposed criminal and civil legislative proposals that are constitutionally infirm. These do not go to the floor for a vote. Every major bill that is voted upon has been vetted in committee meetings and in majority conference in the Assembly and is open to debate on the floor.

Q. The mechanics of Albany have long created an incentive system for what Boss Tweed would have called “honest graft.” As part-time legislators, paid a decent salary for part-timers, perhaps, but a woefully inadequate income to maintain a decent lifestyle in downstate New York, politicians are forced to have outside employment to make ends meet. And nobody really thought Shelly Silver was filling out interrogatories at Weitz & Luxenberg. Is there any politically acceptable way to change these incentives, to make it unnecessary for elected officials to need outside employment to feed their families? If their only real coin is influence, what practical means is there to provide an incentive to stay above influence peddling as a way of survival in Albany?

A. This is a challenge that was one of the reasons for my Op-ed piece in the Times. A full time, professional legislature won’t be a panacea, but it will help to eliminate many of the obvious conflicts some of my colleagues have when they are either employed by special interests or by the law firms that are under retainer to special interests. While this is obvious to every citizen of good faith, it is apparently not so apparent to my colleagues who make a great deal of money from those special interests.

Q. Perhaps the dirtiest secret of legislative politics is member money, where the party leaders hand out funds to members to spend on constituent causes. On the one hand, these funds can be put to good use on the local level, where legislators are thought to be the best judges of efficacy. On the other hand, this emits the unpleasant odor of a slush fund to pay off supporters. And no matter how good the use to which these funds are put, they expose members of the Assembly to allegations of graft and corruption. Can this be ended? Should it be ended? If it is ended, would this spell the end of funding for deserving local causes that rely on member money by way of dedicated legislators for their survival? Without it, what alternative means exist for small, local causes to serve their communities? Is ending an opportunity for corruption also ending a vital opportunity to do good?

A. The public has a right to know how every taxpayer dollar is spent. In my Op-ed, I describe the absolute necessity of having a clear-cut schedule placed on the state’s website describing which legislator initiated a grant, the amount and purpose and the entity to which the grant was delivered.

Cross: Orin Kerr, Because Computers Aren’t Going Away

Dec. 9, 2015 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Orin Kerr, Volokh co-Conspirator, Fred C. Stevenson Research Professor of Law at George Washington Law School, prolific law review author on computer crime and Fourth Amendment law, and beltway bon vivant.

Q. Your college degree came from that bastion of racism, Princeton, where you received a B.S. in mechanical engineering. You went on to Stanford for your masters in mechanical engineering. And then, having the capacity to contribute beneficially to society, something went horribly awry and you went to Harvard Law School. What went wrong? Why waste a fine education and an opportunity serve humanity by becoming a lawyer? What the hell were you thinking?!?

A. I really enjoyed studying engineering as an undergraduate. But by the time I reached grad school, engineering lost its sense of excitement. In my field, fluid mechanics, professors were spending their entire careers seeking only incremental improvements to the solutions of very specific problems. I didn’t want to devote my career to solving small problems that only a few people cared about.

Q. It took a smart guy like you until the completion of his masters in mechanical engineering to realize that fluid mechanics might be a bit limiting? There are certainly a wealth of opportunities beyond fluid mechanics to apply your education in ways that served a broader purpose, but you instead chose to abandon engineering altogether for law school. Why law, of all the possibilities that were open to you?

A. I thought it would be intellectually exciting, I thought it would lead to gainful employment, and I had a sense that lawyers could do important things. And I got into Harvard.

Q. After law school, you clerked for Third Circuit Judge Leonard Garth, then headed straight for Main Justice. Was that the plan when you decided to waste your life by going to HLS? Did you have the dream of saving society from the bad guys?  You landed in the Honors Program, doing computer crime, which was in its relative infancy back then. Was this deliberate? Did they figure your engineering background made you one of the few who could figure out how computers worked?  Did you have an interest in the budding field of computer law before, or did it come from your work at DoJ?  Or do you really hate computer crime, but can’t figure out what else to do with yourself?

A. As far as I can remember – it’s been a while – I didn’t have much of a plan when I decided to go to law school. I vaguely recall that I wanted to go to a big law firm and make a lot of money representing large corporations, probably in a field that involved technology.

But I caught the criminal law bug instead. Part of that was being inspired by my first-year criminal law professor, James Vorenberg. He was awesome. And part of that was my experience as a summer associate after my 1L year. I was at Morris Nichols Arsht & Tunnell, a law firm in Wilmington, Delaware, mostly working on patent litigation. The people were nice, but I found patent work pretty dry. An associate at the firm had a pro bono criminal case and she let me help her. I was hooked. The human stakes were so much more interesting to me than which large corporation would keep a pot of money.

I ended up in the computer crime section mostly by accident. I was accepted into the Honors Program, and they gave me a list of sections I could rank. Computer crime seemed cool and the section had a good reputation, and I figured it was a good fit with my tech background. So I ranked the Computer Crime and Intellectual Property Section (CCIPS) first. But I got the job only because CCIPS management made a mistake. CCIPS was new and they had never hired an Honors Program lawyer before. When they received the form to rank candidates, they thought it was a form to invite candidates in for an interview. They decided to interview me and submitted the form. Later on, they were informed that they had permanently hired me. The Chief of CCIPS was livid because I was filling a spot he wanted to use for an experienced lawyer. He tried to get me fired before I arrived.   But it was too late, as there was no form to unhire someone. When I started the job and met with the Chief of CCIPS in his office, he told me that he didn’t want me in the section and that he had tried unsuccessfully to get rid of me. But there I was.

Q. You spent three years toiling in the trenches of Main Justice as a trial lawyer. Did you try cases? Back then, the internet was still in its infancy (maybe toddlerdom), and while the Computer Fraud and Abuse Act was already a tween by the time you showed up, it too was still subject to interpretation as to its application to ever-changing technology.  What did you think of the CFAA as a prosecutor? What were the issues with computer fraud when you were in the trenches?  Looking back now, are you happy with how you handled computer crime? Would you have done things differently knowing what you know now?

A. My trial experience at DOJ all happened when I was a SAUSA in the EDVA, which I did on a detail from CCIPS. I had two jury trials, a bunch of misdemeanor bench trials (common in the EDVA, which has a big misdemeanor docket), and the usual run of hearings (supervised release violations, etc.).   When I was at CCIPS in Main Justice, my title was “trial attorney,” but there wasn’t much cyber-related trial work to go around. The AUSAs in the field took most of what was there. I helped AUSAs with the cyber aspects of their cases, but the cases belonged to them.

I started thinking seriously about the CFAA and what it meant late in 1998 and early in 1999, when I was at CCIPS.  My recollection is that, at the time, everyone thought the CFAA was pretty simple and uncontroversial. You just had to look for unauthorized access, which was thought to be straightforward and obvious. My view was different: It seemed to me that there were lots of different ways of thinking about “access” and “authorization.” I also thought that the narrower reading of the CFAA was correct. When the civil cases adopting really broad interpretations of the CFAA started to emerge around 2000 and 2001, I thought they were wrong.  I wrote my first article on the ambiguity of the CFAA and the need to interpret it narrowly soon after I left DOJ. I left DOJ in 2001, and the article was written in 2002 and published in the NYU Law Review in 2003.

Q. After two years of teaching, you got a gig as law clerk to Supreme Court Justice Anthony Kennedy. How did you manage that coup?  As the “swing vote” on the Court, you were working under perhaps the single most powerful judge in the nation. Did you share his perspective on the law? How involved were you in the decision-making?  What was the coolest case you worked on for Justice Kennedy, and what was your role in the case?  Did you ever find yourself in strong disagreement? If so, how did you deal with it? And how did Justice Kennedy deal with you?

A. How did I get the job? Well, I applied.  It was a long shot, and I wasn’t expecting anything. I hadn’t been on law review, I hadn’t clerked for a feeder judge, and I didn’t have references from the usual bigwig Harvard professors.  But sometimes strange things happen, and it worked out.

I had some common views with Justice Kennedy, but we approached a lot of issues pretty differently.  I think the law clerk ethics rules still prevent me from talking about particular cases, though.

Q. Following your stint as law clerk, you spurned another opportunity to use your not insignificant education and experience for good, and went back to teaching. Why?

A. GW let me come up for tenure the semester I returned from my clerkship. It was an easy call.

Q. For a guy who spurned engineering because it didn’t offer you the opportunity to work on issues that affected a lot of people, academia alone is curious, and tenure as the reason emits an unpleasant odor. You could have gone for the big bucks, the earth-shattering cases, and instead you chose the cloisters and snot-nosed kids. There had to be more than cheap and easy tenure. I call bullshit. Why?

A. You see academia as a way to avoid the real world.  But I think a law professor can have more influence on the real world than a practitioner can.

Q. More influence? Does that mean by scholarship and research, by teaching others, by thinking deep thoughts, by serving on committees where only mitigated speech is tolerated?  What makes you say that?

A. Influence can happen in different ways, but scholarship and research is probably the most direct.  Some people say that no one reads law review articles.  But I don’t think that’s true.  A person who writes intelligently and thoughtfully about a really hard issue, especially one that others are struggling to figure out, can have a big impact.

My co-authors Wayne LaFave and Yale Kamisar are good examples.  Wayne’s work has been cited in thousands of legal opinions.   When there is a hard Fourth Amendment question, a lot of judges consult Wayne’s treatise to see what he has to say.  And Yale’s articles had a significant influence on the shape of interrogation law at the Supreme Court.  Would Yale and Wayne have had more influence on the law if they had started the criminal defense firm of Kamisar & LaFave?  I don’t think so.

Q. As one of the co-conspirators at Volokh, you’ve laid your politics on the table as a pretty conservative libertarian.  How did you come to that view?  How has it influenced you prolific writing?  Aside from computer crime, you’re deeply into Fourth Amendment law as well, where you’re not particularly inclined to be kind to the defense?  What happened to that libertarianism when it comes to search and seizure?

A. In college, I was vaguely left-of-center in the way that I would guess most college students are. After college, I decided to study American political conservatism because I hadn’t thought seriously about conservative ideas. I read as much as I could, and I was more persuaded by it than I expected. I shifted to vaguely right-of-center some time around 1994. Going to Harvard Law School, which I started in the fall of 1994, was probably a part of that. The political orthodoxy at HLS was so strong that it helped pushed me away towards the right.

I think my scholarship generally reflects my Burkean conservative views. I tend to think there’s a lot of wisdom in the traditional ways of doing things, and that plans to quickly and dramatically change the legal system are often utopian and will only make things worse. Given that, my scholarship tends to be more skeptical of dramatic change than that of other law professors. The equilibrium-adjustment theory is a good example. It has judges trying to maintain old protections as technology changes, changing the rules to preserve old values. It’s essentially a Burkean idea – preserving the old amidst the new.

From a career perspective, though, I suspect my Burkean conservative instincts are a hindrance. The hip thing in legal academia is to propose radical solutions; that is thought to signal creativity. In contrast, anything that doesn’t boldly challenge the status quo is considered overly cautious and small-minded. But so it goes.

Q. You’ve raised some fairly negative views toward the CFAA as being grossly misinterpreted to elevate terms of service into a sufficient basis for a criminal prosecution.  Along these lines, you served as one of Andrew Auernheimer’s (or “weev,” as we all know him) lawyers in the appeal of his conviction before the Third Circuit, and argued the case.  Of course, the conviction was reversed, but on the least sexy gound possible, venue.  Did it break your heart that the court didn’t decide on CFAA grounds?  When it came to representing weev, one of the most notorious trolls and generally difficult human beings around, did you have misgivings as to your argument on interpreting the CFAA resting on his very low-to the-ground shoulders?

A. I was very happy that we won, and I don’t have any misgivings about the case.

Q. One of the biggest bones of contention deals with the Magistrate’s Revolt, the refusal of some magistrate judges to sign off on warrants for digital content because of overbreadth and issues with disposition of data. You’ve been firm that the mags wrong, and this is for the judge to deal with after arrest. But since you can’t put the genie back in the bottle, you would give the government carte blanche to seize everything and sort it out later, after they’ve seen it all. Is there no hope for privacy in a digital world? Are there no limits, given that our entire lives can be seen online? Why, given your affection for equilibrium theory, shouldn’t the mags get involved to restore balance to the Fourth Amendment in a digital world?

A. I think you have this issue backwards.   I’m arguing for broad privacy protection, and you apparently want a world with only sporadic and discretionary privacy for a few lucky people. That is, I want the Supreme Court to interpret the Fourth Amendment to impose broad privacy protections in all cases, whether the cases involve warrants or not. The only way to get that broad privacy protection is from the Supreme Court in a case involving ex post review. On the other hand, you seem to only want privacy protection in the one in a thousand cases that happen to involve a warrant and one of the handful of appointed magistrate judges who decides to opt in to the revolt in that particular case. So in your approach, there’s privacy protection for the one in a thousand cases. You have to win the lottery to get privacy. But in my approach, everyone gets privacy.

Q. You’ve been a lawprof at George Washington since 2001, with a couple of stints as visiting prof at Penn and Chicago. Is that where you plan to stay?  Any thoughts of moving up the food chain, Harvard or Yale perhaps? A nice, warm bench, perhaps? What are the aspirations of a law professor who has made his mark, earned a firm niche through his scholarship and is still a young man?  Where do you go from here?

A. I’m going to Disney World!

Seriously, I hope to have the health, the energy, and the support to enjoy a long future writing law review articles on issues I care about.

Q. Unlike many academics, you also want to keep yourself in the game, as reflected by your involvement in the weev appeal. You’ve done some very successful pro bono appellate work, but what about getting back into the trenches and trying cases?  Is it now just a matter of getting involved in cases that involve your area of scholarship, or could you see yourself becoming an advocate for, say, the defense?  What do you think of law professors who bootstrap their scholarship for cause advocacy?  Is there a line that an academic shouldn’t cross, even if he still wants to be a player in the game of law?

A. I really enjoyed the small amount of trial work I did at DOJ. In a perfect world, it would be great to do more. But between not having a lot of trial experience, and it being a long time ago, I couldn’t jump back into it easily. Besides, I’m a “law guy,” so I’m mostly drawn to appeals. And when you have a full-time teaching job, it’s much easier to schedule appellate work.

I enjoy both scholarship and advocacy, but I see them as fundamentally different. Scholarship is about the search for truth. As a scholar, you go where the good arguments go, wherever that may be. It’s essential to be open to changing your mind and admitting the weakness of your position.   In contrast, advocacy is about helping the client. Obviously, as an advocate, the result you seek is predetermined. The only question is how you can best persuade the decisionmaker to rule the way that will best serve your client’s interests.