Tomorrow, March 11th, will be Associate Justice Antonin Scalia’s 75th birthday.  He’s just a kid, with many years ahead of him on the Court.  Perhaps that explains why, in Linda Greenhouse’s view, he’s so horribly loud and intemperate.

One rough measure of how any Supreme Court term is going is to track the decibel level of Justice Antonin Scalia’s dissenting opinions. In a case last week, the question was whether statements made to the police by a shooting victim as he lay bleeding to death in the parking lot of a Detroit gas station were properly used at trial to obtain a murder conviction of the man he named as the gunman.

That conclusion enraged Justice Scalia. Of course the police officers knew they were gathering evidence for potential use at trial, he objected, and to maintain otherwise was “so transparently false that professing to believe it demeans this institution.” With this decision, the Supreme Court “makes itself the obfuscator of last resort,” he complained. A “gross distortion of the facts,” “utter nonsense,” and “unprincipled” were a few of the other zingers the dyspeptic justice aimed at Justice Sotomayor’s opinion.

But what strategic sense could lead a justice to administer such a public thrashing to a junior colleague?

So the question raised by Justice Scalia’s most recent intemperate display remains: what does this smart, rhetorically gifted man think his bullying accomplishes?

The question is obviously loaded.  Intemperate?  Bullying?  She could just as easily have asked why other justices wrote tepid, obtuse opinions that left one as confused after reading as before. 

Nino Scalia is loved/hated for his strong views, though to the criminal defense bar, as distinct from broader liberal-inclined groups, Nino has done more to strengthen constitutional protections in the courtroom than any justice since Rhenquist took the bench.

Regardless of how one feels about Nino’s judicial philosophy and consistency, consider the efficacy of his words.  In the majority, his writing is usually clear and straightforward, with notable exceptions like the orphan paragraph of Heller that screws the entire decision.  It’s in dissent, however, where he shines.

Greenhouse, not surprisingly, characterizes Scalia in evil terms, bully, intemperate, loud. She seeks to judge him, however, on the ineffectiveness of his tirades.

It’s a puzzle. But having raised the question, I will venture an answer. Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little. Nearly every time he has come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyer’s remorse, retreated at the next opportunity.

The suggestion is that Nino has scared away or offended the others with his attacks on their sanity and upbringing, thus proving that his dissents are worthless indulgences that have been both offensive and ineffective. 

At Volokh Conspiracy, Orin Kerr offers a different take:

[T]he main test for Scalia’s dissents is not whether they worked with the current Justices, but whether they influence the law in the future. As a former professor, Scalia knows what he’s doing, I think. He knows how to write a dissent in a way that is likely to be excerpted at considerable length in a casebook, and he knows how to write in a way that is very entertaining for bored law students to read. By writing a sharp, even overheated dissent, Scalia may sometimes annoy his colleagues. But he also ensures that the issue in the case will be debated in law schools in significant part on his terms, which I think is a pretty significant accomplishment.

While agreeing with Orin, it seems too narrow and parochial an explanation, as if Nino’s concerns are limited to the legal community and the rest of society doesn’t count.

For about a decade, I road on the train every day with a friend who went to Xavier, a New York Catholic military high school with Nino.  He too was a straight talker.  He had opinions and he had no qualms about letting me know what they were.  There was no doubt, no equivocation, no apologies.  He came from an era, and upbringing, where there was no shame in speaking one’s mind, even if it didn’t assuage the listener’s sensibilities.

Greenhouse’s approach presumes the virtue of a softer, more accommodating approach.  Whether one views it as the subtle language of scholars or the tepid tones of acquiescence, she clearly favors a softer, gentler approach, where one wouldn’t be called a “bully” by one’s detractors.

But consider Scalia’s statement from a 2008 interview :

Plus, dissents are just good. Look back at Korematsu [the 1944 case in which the Supreme Court upheld an executive order excluding Americans of Japanese descent from areas deemed critical to national defense]. Isn’t it nice to know that Robert Jackson – at least someone on the Court – saw how horrible it was? A dissent keeps you honest. Sometimes after a dissent circulates, some of the points are so obviously incorrect that the majority will cut back some of its broad principles.

As Nino says, “a dissent keeps you honest.”  A dissent isn’t meant to make the majority feel better about its decision.  It’s not the mere lack of a vote out of nine.  It’s about a disagreement of sufficient magnitude that the justice of the Supreme Court of the United States cannot speak with a unanimous voice.  Consider, if you will, that this is the court that announces the most fundamental and final word on what the law means for all of us, and nine people can’t always agree.

Is there an ulterior purpose to Nino’s stinging dissents?  Must there be some Machiavellian undercurrent to his writing?  Is it written in plain, clear, often brutal, language so that it’s comprehensible to law students, who would never grasp his point if it was presented in nuanced, dulcet tones?

Or is Antonin Scalia the sort of man who sees no point in his existence, no point in his writing, if not to say whatever it is he has to say as clearly, and yes, brutally, as possible? 

The likelihood of his dissents changing minds on the Supreme Court may vary from case to case or in accordance with the strength of others’ convictions.  The likelihood may be slim, even minuscule.  Does that mean Antonin Scalia shouldn’t leave behind a record of what he really thinks, express his beliefs in language that is clear, unequivocal and certain?  Is there virtue in being a wishy-washy wimp because you hurt no one’s feelings along the way?

When future generations look back at today’s Korematsu, will anyone know that you had the balls to call it horrible, or will the best that can be said about you be that you offended no one?  My answer to Linda Greenhouse’s question is that Nino writes stinging dissents because he must.

Update:  At the Atlantic Wire, this post was picked up as part of their 75th birthday coverage of Scalia’s legacy, and I’m described as a “conservative legal blogger.”  Who knew?  That’s what I get for saying something nice about Nino.

Every once in a while, some enterprising law enforcement officers come up with what they perceive to be a bright, no brilliant, idea.  This happened to Monroe County Sheriff’s Detectives Doug Brannon and Pat Henry, and it was, as  Radley Balko says, a whopper.

On May 7, 2009, the defendant’s appointed counsel filed a motion for a continuance on the basis of her discovery that a member of the Monroe County Sheriff’s Department had represented himself as two separate attorneys, had pretended to handle parts of the defendant’s case on the defendant’s behalf, and had instructed the defendant to cease communication with appointed counsel. Counsel noted that she had previously requested a mental evaluation of the defendant in January 2009 on the basis of his claiming to be represented by a “federal” attorney. One week later, citing the same grounds, counsel filed a motion to dismiss the indictments in all four cases on the basis that the State had inappropriately interfered with the defendant’s right to counsel.

This comes from the Tennessee Court of Appeals in State v. Dawson.  The detectives went into the jail, using the aid of a jailhouse snitch, and persuaded the defendant that one was a “federal” lawyer (which in jailhouse parlance means “big time”), that he could fix his case and that the defendant should stop cooperating with his appointed (read, “worthless”) lawyer.

But for one detail, you’ve got to admit it’s a great scheme.  It allowed them to get the defendant to admit everything in the world while preventing his real lawyer from intervening.  Then, of course, there’s that nasty detail, the interference with the defendant’s right to counsel.  Oh yeah.  That.

[T]he conduct of the law enforcement officers in this case, and in particular Detective Henry, is so egregious that it simply cannot go unchecked.  That Detective Henry would illegally pose as an attorney and arrange the circumstances of the defendant’s case to make it appear as though he had successfully undertaken legal representation of the defendant is abhorrent.  That the detective would specifically instruct the defendant not to communicate the relationship to his appointed counsel, in what we can only assume was an effort to enlarge the time for the detective to gain incriminating information from the defendant, renders completely reprehensible the state action in this case.  Given the unconscionable behavior of the state actors in this case and the fact that the defendant was essentially prevented from proving prejudice through no fault of his own, we have no trouble concluding that the only appropriate remedy in this case is the dismissal of all the indictments.

All things considered, it worked out pretty well for Dawson, all indictments being dismissed.  And it was, brilliance notwithstanding, incredibly egregious.  Which makes Balko’s question a pretty good one: Why didn’t anyone else who knew what these detectives were up to share in the responsibility for this outrage?

According to KnoxNews.com, Monroe County Sheriff Bill Bivens and DA Steven Bebb had some knowledge of the ruse, but did nothing to stop it.

During a hearing on the issue, Sheriff Bivens testified that he was vaguely aware of Henry’s plot and did not see “a problem with it,” adding, however that “if it’s illegal, of course, I don’t want to do it.” Bivens did not order a probe of Henry’s actions or take any disciplinary action; nor did Bebb initiate charges of impersonating a lawyer.

Instead, Bebb successfully persuaded Judge Reedy to overlook it all.

Of course, if responsibility flowed uphill, it would prove awfully hard to keep a full complement of top echelon sheriffs around.  Still, Sheriff Bivens’ equivocation has to warm even the hardest heart, as he would never do such a thing “if it’s illegal.”  Can’t blame him for trying, though.

While this bizarre and extreme effort to undermine the defendant’s constitutional rights in order to obtain evidence against him was ultimately thwarted, it reflects a deeper problem that keeps popping up in the most odd, and ordinary, places.  In the zeal to enforce the law and convict the bad guys, there appears to be no bar below which some cops won’t go.

It may well be that Sheriff Bivens didn’t appreciate just how absurdly wrong and unconstitutional the efforts of his detectives were.  Constitutional acumen isn’t necessarily a critical qualification for the sheriff’s job.  Of course, that doesn’t alleviate the good sheriff (or the district attorney) from his responsibility to protect and defend the Constitution.  If he’s not terribly clear about what’s allowed, there are no doubt people he could ask about it, such as DA Bebb.  And if DA Bebb gives his thumbs up, as opposed to merely trying to salvage the cops from responsibility for their outrageous conduct after the fact, we have a separate, deeper problem.

Circumvention of constitutional rights is almost a game played by all law enforcement officers (think Reid Technique to get defendant’s to talk despite being given their Miranda warnings), and is encouraged by the courts who have approved (see Whren) deception as a legitimate law enforcement technique.  Where does it end?  Which lie goes too far, when others are embraced and excused by the courts, despite being every bit as deceitful and cleverly designed to make an end run around the defendant’s constitutional rights.

It would certainly behoove law enforcement officers who think they’ve come up with a novel, brilliant scheme to beat the Constitution and get their hands on information they would otherwise never be able to get, to ascertain whether it’s permitted before engaging in their scheme.  It would be far more effective, however, if all the way down the line, from cops to courts, the law stopped giving approving recognition to lies, schemes and scams used to investigate and prosecute criminals.

And as a side effect, maybe it would prove beneficial for those accused of crimes to lean that the government isn’t a bigger liar, schemer and scammer than they are.  Just saying.

The name is absolutely awful.  The concept far worse.  And the question remains, which of you will rush to join Shpoonkle, the eBay of lawyering.

The concept is simple enough, people seeking legal help post their issues, and lawyers bid for the work.  The limbo concept applies, how low can you go. 

It’s founder(s), facially anonymous though, according to Susan Cartier Liebel, it was created by an “entrepreneurial law student” (but she doesn’t want to hurt his feelings by telling him his baby is butt ugly), who sees a chance to make money by claiming to offer affordable legal services to the masses by having lawyers bid against each other to see who can offer their services cheapest.

Any lawyer who signs up for this service should be immediately disbarred, then tarred and feathered, then publicly humiliated.  It doesn’t matter how awful a lawyer you are, how pathetic your business, how grossly incapable you may be in getting any client to retain you.  Those are all good reasons to apply for the assistant manager’s position at Dairy Queen.  This is worse.

Aside:  If you require further explanation why this is not a responsible means of acquiring business, then I urge to run, not walk, to the nearest street corner in short shorts.  This is not at issue.

The putative explanation for this effort is that legal services are too expensive for most people, and this ugly-named website will match up clients with lawyers who can provide the needed legal services for a price they can afford.  It is the elevation of price over quality, on the one hand, but for consumers who can’t find an affordable lawyer otherwise, that may not be the worst thing.  There is certainly an argument to be made that no lawyer is better than a bad lawyer, and that money paid to a bad lawyer is money flushed down the toilet.

Rather, the concept is a perfectly reasonable next step to the de-professionalization of legal services, where the purchase of legal services is no different than buying a widget at the big box store for the lowest available price.  From the perspective of the cost-sensitive consumer, it probably seems like a great idea.  The client isn’t concerned with the lawyer’s actual (as opposed to self-attributed) competence in a particular area of law or in general.  The client wants one thing only: a lawyer willing to do the work at a price he can afford.

When a friend of mine brought this idea to my attention yesterday, I snarkily responded:

I’m sure it will be a huge success and make lawyers financially available to all Americans for a relatively brief period of time.  Once all the users are imprisoned, we can go back to normal.

The fact remains that there will be lawyers who will use this service, no matter how low they have to go to put a few bucks in their pocket.  When the phone doesn’t ring, and the kids are hungry for dinner again, something has to give.  People do a lot of crazy things for money, and as crazy things go, this isn’t even in the top ten.

By no means does the need for money make this a justifiable mechanism.  It is anathema to what the legal profession is supposed to stand for, implicates a wide variety of unpleasant ethical considerations and reflects a further step, maybe giant step, away from excellence toward commodity.  Yet my fear is that the lawyers who would sign up for this mutt couldn’t care less.

That many people are incapable of affording quality legal services is a given.  Lawyers are expensive, and the need for legal assistance has, unfortunately, become pervasive in everyday life.  People take a huge risk not obtaining counsel.  They take a huge risk in obtaining counsel at bargain basement rates.  It seems like there’s a huge risk no matter where they turn.

The need to resolve the overarching problem, that quality legal counsel is financially out of reach to many, is a problem, and the legal profession has yet to make any serious effort to come to grips with it.  The solution of flooding the market with lawyers of dubious merit and even more dubious ethics isn’t the solution, but neither is bizarrely-named schemes that encourage lawyers to do anything necessary to score a case from some detached name on the internet.

I find it hard to blame some anonymous entrepreneurial law student from putting together this horrible idea.  He’s just trying to make a buck, and the creation of this new concept doesn’t compel lawyers to sign up, lawyers to outbid each other to see how low they can go, lawyers to try to glom up cases in areas where they lack competency or lawyers to provide less than stellar services.  It doesn’t require that things go horribly wrong.  But we all know they will.

On the other hand, this idea offers lawyers yet another opportunity to assess just how down and dirty we want the profession to go.  Are we really willing to don the hotpants and walk the boulevard?  Are we that far off from actually doing so?  Are we willing to close our eyes and let those among us do so, and thereby reduce our profession to the streetwalker level?

It’s now in our face.  What do we plan to do about it?



Update:  Proving yet again the value of institutional memory,  Bob Ambrogi notes that the idea behind  Shpoonkle is not only old news, but has failed numerous times before.

Way back in 2006, I wrote a post here about the launch of just such a site. Called Tip-Mart, it promised that its reverse-auction system “eliminates extraordinary market inefficiencies, drives down prices, increases sales, and provides new value to both buyers and sellers.” Coincidentally, it too was created by a college student who believed he had the next new thing. Today, the site no longer exists.

Another such site went by the name LawyerQuotesFast.com (and also by the name LawyersForLess.com). This one, too, is no longer to be found.

As a matter of fact, there was even once a law review article written about reverse-auction sites for legal services. At the time, the author noted that there were six such sites when she finished her first draft of the article, but that two had already shut down by the time the article was ready for publication and a third had abandoned its auction component.

And while none of the failed predecessors had great names, none were nearly as horrible as this mutt.  Bob asks where now is the time for nasty lawyers to strut down the boulevard.  If there is a God, history will repeat itself.

This comes from a column that appeared in  USA Today four years ago:

Last year, we turned our red wagon into a replica Conestoga wagon with real sewn canvas over wooden ribs, wooden water barrels, quarter horse — and, yes, plastic rifles. It was a big hit and the kids won first prize for their age group. The celebration, however, was short lived. As soon as one mother spotted the toy rifles inside the wagon, she pulled her screaming children out of the event, announcing that she would not “expose them” to guns.

I later received an e-mail from another parent that this covered wagon was no “innocent fantasy” since I must be aware “what guns were used for in the Old West?” It turns out that my kids were apparently rehearsing the genocidal massacre of Native Americans.

What is astonishing to me is how detached the zero-tolerance movement is not just from research but also from reality. One Mothering magazine article advised mothers on how to respond to their boys found playing with guns or swords. The writer suggested that parents take their boys aside and “emphasize healing” and show their boys how to make “magical medicines.” The magazine also advised that parents could also “transform guns into magical wands” and “channel energy into other games.” My personal favorite, however, was that parents should stop such games and have the kids play “peacemaking” by creating “a roundtable with a mediator and write a peace accord.”

I assume these notions come from some well-intended woman, or the most beta-ish male ever, because they reflect no reality I’ve ever seen, in my own experience or in my observations of others.  No little boy wants to put aside their gun to make “magical medicines.”  That anyone, woman or man, would urge such a thing is laughable.  That’s not the way boys roll. 

My son is no more in training as a serial killer than Turley’s sons. He’s a great student, deeply involved in community service, who happens to be very good with an epee.  Ironically, he might be suspended for pointing a finger gun at another student, but he’s applauded for his skill with an epee, having  won every honor high school fencing has to offer. 

Had my son decided that he wanted to dance ballet, I would have happily spent my evenings repair toe shoes.  But he chose fencing instead.  According to the earth mothers, I’m fostering violence by allowing this. They’re wrong.  And I reject the notion that there is any shame in my son’s “violent” choice.

It’s long been a curiosity to me that women can openly promote feminism without any serious backlash for their flagrant elevation of female virtues to the exclusion of men.  Being a man, and having male interests, isn’t an inherent evil, and their attempt to make it so is, well, a joke amongst men.  Sure, it’s often a tacit joke, since we don’t want to fight a ridiculous battle, and we enjoy the company of women for other purposes, so we pretend to agree and sublimate truth in an abundance of discretion. 

But make no mistake that we’re letting women get away with this just to keep the peace, not because we agree with it.  Sure, there are some namby-pamby men who wallow in their emotions, but most of us, even the betas, do it just to get along.  Can you imagine the outrage that would follow a CLE entitled  Men and the Law, How to be the Masculine Lawyer you always wanted to be?  Yet there’s a Women and the Law CLE available at every turn.

Boys will be boys.  What else should they be?  It doesn’t reflect their future as murderers or their adoration of the slaughter of native Americans.  They’re just boys doing what boys like to do, now and always.  And the most vibrant dreams of earth mothers that games of “peacemaker” will make boys grow up more like girls isn’t just an absurd fantasy, but an assault on the nature of males.

And if that’s not enough, there are girls who fence epee too, and they can be just as ferocious on the strip as any boy.  No apolgies for them either.

Update:  I’ve just been informed that today, March 8, 2011, is International Women’s Day.  Women everywhere are holding events to celebrate themselves. 

It seemed like such a hilarious idea at the time, and Evan Emory might have become a Youtube sensation, launching him into the big league of such cutting edge comic as Daniel Tosh (the  Tosh.0 fame).  Except it  didn’t turn out well when parents found out he scammed the Beachnau Elementary School and used their first graders in his raunchy video.

The  New York Times captures the small town conflict surrounding Emory’s actions.

Tony Tague, the Muskegon County prosecutor, stands firmly in the first camp: He charged Mr. Emory with manufacturing and distributing child pornography, a crime that carries a penalty of up to 20 years in prison and 25 years on the sex offender registry.

“It is a serious, a huge violation,” said Charles Willick, whose 6-year-old daughter was one of the students, all readily identifiable, in the video. “He crossed the line when he used children.”

Not everyone thinks the 21 year old is the most evil person ever.

“I think they’re making a very huge deal out of it ,and it’s really not that big of a deal,” said Holly Hawkins, 27, a waitress at the Holiday Inn downtown. “None of the kids were harmed in any way.”

That the video harmed no one doesn’t appear to calm the prosecution or dissuade Tague from pursuing charges that appear absurd under the circumstances.  So what does the obligatory lawprof say?

Legal experts say the case — and the strong reactions it has drawn from places as far as Ireland and Australia— underscores the still evolving nature of the law when it comes to defining child pornography in the age of Facebook, YouTube and sexting.

The Supreme Court has ruled that child pornography is not subject to the same First Amendment protections as adult pornography, since it is assumed that the child is being abused.

But with the rise of technology, said Carissa B. Hessick, an associate professor at the Sandra Day O’Connor College of Law at Arizona State and an expert on child pornography and criminal sentencing, “now we have situations where people are being arrested and charged” in connection with digitally altered images, where no child was abused.

Hidden within this “expertise” is a problem that may well balloon out of control, and blindside otherwise good kids and families.  Have you ever watched Tosh.0?  His show is replete with youtube videos showing kids getting hurt, throwing up, behaving in horribly foolish, nasty and ridiculous ways.  And this gets on the internet and thousand, no millions, watch it and laugh hysterically. 

Much of what one sees is the product of stupid animal kid tricks combined with the good fortune of having a running video recorder.  But much of it isn’t, and even less going forward is likely to be.  There is a trend toward doing wild, crazy, idiotic things to create videos so hysterically funny that they will go viral, or, if one is incredibly lucky, catch Tosh’s eye and make it onto his show.  Kids will take absurd risks with their safety and risk public humiliation to have their 30 seconds of fame.

They don’t intend to do harm.  They intend to be stars, or at least what passes as a star in this age of transitory internet fame.

Conduct such as Emory’s, lying to get an “in” at an elementary school to get a first grade class as a backdrop to a “funny” video, isn’t intended to cause any harm, but just an imaginative effort to create an hysterically funny video that has a chance of going viral. At the rate things are going, the envelope is being pushed daily, hourly maybe, to come up with more extreme ways to amuse others.  There is an “anything goes” atmosphere and kids are prepared to do anything they can to make the cut.

The problem is that youth internet culture is promoting this effort far, far beyond what most adults realize.  How many readers have watched Tosh.0 or spent time at funnyjunk?  These are huge sources of entertainment for kids, and the content spans the funny to the sick and disgusting.  You may not be familiar with it, but you can bet your teens and twenties are, whether you realize it or not.

There is a constant stream of new images and videos being put up in the hope of capturing the interest of the mass of kids who have become humor junkies, but so jaded that only the most outrageous things amuse them anymore.  And these kids are stretching the bounds of their safety, anything resembling intelligent judgment and the law to come up with the newest, funniest thing.

Granted, some of the videos are very funny, involve no one getting hurt or being humiliated and are devoid of sexual references. Some are even quite sweet. But it’s much harder to come up with some clean and funny.  For those young people who can’t come up with funny without being harmful, they do what they can and take risks they shouldn’t.

The problem is that the law and teen humor is at monumental odds, as demonstrated by Evan Emory’s situation. 

Even the Muskegon County sheriff, Dean Roesler, whose deputies arrested Mr. Emory after parents complained about the video, acknowledged that the case represented uncharted territory. While he found the video alarming and offensive, Sheriff Roesler said, “I realize the Internet is just a whole new arena that we’re learning to deal with in law enforcement, and actual legislation is having a hard time keeping up.”

Not understanding what drives a 21 year old to do what he did, Emory is facing extreme consequences for what he perceived as a (relatively) harmless prank.  And it’s destroying him and his family.

But the hilarity vanished when sheriff’s deputies showed up at Mr. Emory’s house and seized his computer and his iPhone.

He realized “they were looking for things that a pedophile would have,” Mr. Emory said recently during an interview in his lawyer’s office, and it horrified him. He cried several times during the interview. During the night he spent in jail, he said, “I just thought about how much I regretted this and how funny it wasn’t anymore.”

Since his arrest, he has been suspended from his job as a waiter at Applebee’s, he said. The court expenses have forced his father, a power plant insulator who was laid off in November, to go out of state to find work.

While the parents of the first graders, and the teaches and administrators at the elementary school, are deservedly angry about having been lied to and taken advantage of by Emory, do they seriously consider his conduct worthy of such an extreme consequence?  Even if they do at the moment, how will they feel about it twenty years from now, when their first graders are completing their medical residency and Evan Emory is pleading with the parole board to let him out?

There’s little different about Evan Emory than most normal, average, American 21 year olds who enjoy a good laugh and want their moment of internet fame.  While there’s a lesson to be learned here, it’s a lesson for all of us, as this strikes far closer to home than most of us imagine.  No 21 year old wants to spend the rest of his life waiting tables at Applebee’s.

Over the part couple of months, I’ve been deluged by comment spam because somebody has listed SJ as a great place to get backlinks, and everyone with a computer in Bangalore has taken an interest.  These aren’t high quality spammers, but run of the mill spammers.

The content of the spam repeats itself, all based on the notion that by flattering the writer and the blog, the spam will see the light of day (glow of the monitor?).

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Herein lies a concern with the Court’s division of the speech universe between speech on public matters and those involving “purely“ private ones.  Some severely emotionally-damaging harassment of individuals stems from a perpetrator’s general hateful beliefs and involves victims who are strangers to the perpetrator.

Consider a neo-Nazi group’s online harassment of Bonnie Jouhari.  Posters on a white supremacist website targeted Ms. Jouhari, a civil rights advocate and mother of a biracial girl.  They revealed her home address and her child’s picture.  The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.”  Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose. 

Ms. Jouhari suffered headaches and anxiety, and her daughter was diagnosed as suffering from severe post-traumatic stress disorder.  With the majority’s reasoning in hand, perpetrators of similar attacks might insist that intentional infliction of emotional distress claims should fail because they had long held discriminatory views, which can be understood as political objections to anti-discrimination laws, and had no previous contact with the individuals that they targeted.  They might contend that such attacks constituted protest on a matter of public concern, not a purely private matter deserving less First Amendment protection. 

[Justice Breyer] explains that the majority’s finding “does not hold or imply that the State is always powerless to provide private individuals with necessary protection.”  He find [sic] the decision quite narrow, explaining that its finding hinged on the fact that the Snyders could not see or hear the picketing from the funeral ceremony.  In Breyer’s view, “To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.”

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This gives rise to two critical points: The First Amendment remains safe from Danielle Citron, and to all you spammers who I block and delete daily, they would love your thoughts over at Concurring Opinions, where any validating comment is appreciated.  Go tell Danielle Citron how much you enjoy and appreciate her thoughts.  She could use some love speech right about now, after the Supreme upheld the vitality of the First Amendment despite her efforts.  Just give her some validation and you can have as many backlinks as you want.

And leave me alone.

One conceit lawyers allow ourselves is to repeat the platitude that we are nation of laws, not men.  Laws pass through men to get to us, and exist only as the vision of a majority of nine say they do.  If it was so clear and easy, we wouldn’t need the nine to explain it to us over and over again.  We do. They do. And so it’s been since John Marshall started the ball rolling.

One of the nine has taken us to task for “undermining the court and endangering the country by weakening core institutions.”  If true, this is a damning allegation.  In an LA Times op-ed, however, George Washington lawprof  Jonathan Turley argues that Clarence Thomas’ complaints reflect a deeper problem, not with the institution but the speaker.

Louis XIV of France was infamous for his view that there was no distinction between himself and the state, allegedly proclaiming “L’État, c’est moi” (“I am the State”). That notorious merging of personality with an institution was again on display in a February speech by Supreme Court Justice Clarence Thomas before the conservative Federalist Society.



Justice Thomas was fending off attacks based on his wife’s activities, and monies paid in compensation therefore, and the omission of mention in his own financial disclosures.

Virginia Thomas was receiving money from groups that had expressed direct interest in the outcome of cases that came before her husband, including Citizens United vs. Federal Election Commission, in which the court in 2010 struck down limitations on corporate contributions to elections.

A justice is expressly required by federal law to recuse himself from any case “in which his impartiality might reasonably be questioned.” This law specifically requires recusal when he knows that “his spouse … has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”

There is little doubt that Justice Thomas’ sympathies, if that’s the right word, would have resulted in the precise same decision in Citizens United and every other case before the Court, regardless of Ginny Thomas’ compensation or endearment to causes.  Nobody suggests that Justice Thomas was, in fact, compromised by the payments.  Still, his failure to disclose that his wife was on the payroll for 13 years isn’t an institutional failure.  It’s a Thomas failure.  One of the nine did wrong.

Yet he offered neither remorse nor explanation.

Instead, Thomas suggested that his critics were endangering freedom by undermining his authority and, by extension, the authority of the court. He insisted that his wife was being attacked because she believes in the same things he does and because they were “focused on defending liberty.” He added:

“You all are going to be, unfortunately, the recipients of the fallout from that — that there’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties…. And that’s long after I’m gone, and that could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.”

“Defending liberty” sounds like a wonderful thing.  Like Justice, who would argue against it?  Some of us fail to see Justice Thomas’ or Ginny’s connection to “defending liberty,” but then that’s more a matter of one’s politics and what (and whose) liberty is at stake.  Not be belabor the point, but liberty (like justice) is in the eye of the beholder and check endorser.

Turley see Thomas’ conversion of an attack on him to an attack on the institution as

…Thomas’ Louis XIV moment. Thomas appears to have finally merged his own personality with the institution itself. Thus, any criticism — even criticism that he is harming the court — is an attack on the institution. It is more than an embarrassing conceit; it can be a dangerous delusion for any justice.

But the question is whether Justice Thomas actually believes what he’s saying, or is using well-tested rhetoric designed to enrage his base of support and rally support for the Thomases.  Professor Turley’s indictment of the royal conceit accepts Justice Thomas’ statement at face value.  It strikes me as a stretch.

It would be one thing if Justice Thomas was of the view that the attack was manufactured out of thin air, baseless and frivolous.  Certainly the attack comes primarily from those who disagree with him politically, but that doesn’t mean it isn’t well grounded and accurate.  Indeed, it appears abundantly clear that Thomas deliberately concealed material information from required disclosure.  While it may feed his political enemies, it was his choice to give them the ammo.

Caught with his pants down (metaphorically, at least this time), he’s fighting back, using what he likely believes to be effective talking points amongst his supporters.  He isn’t really suffering from the Louis XIV delusion, confusing himself and the Court.  What he’s doing is worse.

The credibility of the institution of the Supreme Court of the United States isn’t based upon the political persuasions of its members, as much as the integrity, both intellectual and real, of the nine people who are temporary stewards of its high back chairs. 

If Clarence Thomas meant what he said, it could be chalked up to delusions of grandeur, a psychological issue that might well establish him as being a proper representative of Americans who similarly suffer from mental defects.  He might, in fact, be considered sympathetic, maybe even protected.

But if Thomas is spouting inflammatory rhetoric, the talking points of politics to deflect his own wrongdoing, his cheating the court and American people of his honesty and integrity by compounding his deception by omission with affirmative lies, then he has blown his integrity as well.  Before he was just an arch-conservative guy who was usually wrong and didn’t talk too much.  Now, he’s a liar.

Is Justice Thomas psychologically damaged?  Is he so ignorant as to be incapable of understanding that he is but a member of the court, not the institution himself?  I find both impossible to believe, regardless of my thoughts on the thoughtfulness of his politics.  That leaves only the worst of all possible choices to explain Thomas’ rally to the troops.

Oddly, then, Thomas is right to warn that there is something “undermining the court and endangering the country by weakening core institutions.”  That would be one of the nine who has given away his integrity in an attempt to deflect responsibility for his wrongdoing.  That would be Justice Clarence Thomas.  And that isolates him from the rest of the nine.

What if there were secret breeding grounds for future policy leaders where they were instilled with fundamental beliefs that there are good and evil political ideals, taught that there are truths of right and wrong, and when the minds of these future leaders were so completely brainwashed and controlled as to leave no doubt how they will twist the future to meet the policy vision beat into their brains, set out on the world to do subvert it to their vision?

Walter Olson says there are such places.  They’re called law school.

In Schools For Misrule: Legal Academia and an Overlawyered America, Walter aims both barrels and pulls the trigger.  The book is classic Olson, witty, caustic and facially challenging to the Academy.  The poke in the ribs is unmistakable, and  early signs are that  it’s going to get a rise out of some of the more intellectually honest lawprofs.

Walter’s attack strikes at two levels, the first being the more obvious, and consistent with his work at  Overlawyered and the  Cato Institute  (and the Manhattan Institute before it), that law professors tend to be slavishly liberal in their views, and use their position as a platform to manufacture baby liberals to go out in the world as future leaders. 

Whether this is a good or bad depends on where you stand.  If you prefer those policies objectives, meaning that you’re inclined to believe they are good and positive, the right thing for the country, then Walter’s first shot may not strike home.  After all, the reason some ideals are characterized as “politically correct” is that a lot of people think they are, well, politically correct.

Still, a warning.  While the use of law schools as an incubator of liberal politics may not cause you to break out in hives, you may find Walter to be awfully persuasive in challenging simplistic notions of right and wrong, good and evil, that characterize political correctness. If your interest extends beyond people applauding you for agreeing with them, and actually comes anywhere near achieving a better understanding of issues and interests at stake, then Walter’s challenge may give you pause to rethink your knee-jerk reactions.  He may not turn you into a full-time libertarian, but he will add enormously to your understanding of what’s at stake and why the solutions aren’t nearly as clear and easy as you thought.

Then there’s the second level, the one that grabbed me by the collar and shook me up.  I now suffer from Shaken Lawyer Syndrome.  If only there was a cause of action.

Bad ideas in the law schools have a way of not remaining abstract. They tend to mature, if that is the right word, into bad real-life proposals. Bad ideas in university French departments are of self-limiting importance, given that people on the outside are likely to go on speaking French in the usual way. Bad law can take away your liberty, your property, or your family.

The fundamental nature of instilling a belief that one political perspective is right and any others are wrong is to close minds and prevent thought.  Law students enter into the deal with the belief that their professors are honest brokers, teaching them what needs to be taught to a budding lawyer (and coincidentally budding future policy leader).  They have good reason to trust that these people, attributed with the utmost credibility as being worthy of shaping young minds, will tell them the truth.  As if there’s a truth to tell.

There’s little doubt that Walter is correct in asserting that some of these law students will eventually find themselves in positions of power.  Contrary to the great unwashed who see no virtue in knowledge and education when dealing with legislation, a legal education has a critical place in government, not to the exclusion of engineers, nurses and sanitation collectors when it comes to policy choices, but in having the training to appreciate how the deal works. 

Bill Clinton and Barack Obama, “both a law school graduate and a law professor,” (a  somewhat dubious allegation) are held out as examples to show how our political leaders were reared in “an environment of overwhelming leftism.”  No mention of how George W. Bush fit his two terms in between them, but the point is that they both, in the eyes of conservatives, are extremists. The point is that they reflect an abundance of influence in government of lawyers, and therefore an abundance of influence in the formation of political thought by the idea-instillers of their youth, lawprofs.

The lack of balance in the education of future leaders is the problem.  Whether it’s lefty or rightly, the problem is that future leaders are indoctrinated rather than taught to expand their views, understand all sides and corners of the issues, not be trapped by political ideology so that they are incapable of considering the many interests, factors, consequences of policies, and how they affect people.

No one point of view owns righteousness, and the failure to recognize this and teach it to those who will someday have their hands on the wheel reflects a massive failure of the legal Academy.

There’s a very real question whether the nice men and women who are now entrusted with young minds are capable of doing anything beyond instilling their own political beliefs in their students.  Many simply can’t see any other points of view, or feel it would be dishonest to teach something they don’t believe in (as if their political sensibility is the bar for everyone). 

Others are intellectually dishonest, an issue I’ve discussed with Walter in the past, willing to lie, cheat and steal to pursue an irrational political agenda because of how strongly they personally like the outcome.  And they have no qualms manipulating thought to achieve their ends and stifle anyone who might challenge them.  It’s considered extremely rude in the Academy to call someone intellectually dishonest, so these people play on the politeness (and wimpiness) of others to ram their crap through.  And we can anticipate that it will someday become accepted policy when our leaders embrace is as an article of faith taught them in their formative years. 

What Walter Olson offers in Schools for Misrule is a challenge to the Academy to clean up its act, stop teaching liberalism as the only good policy and keep their mitts off the minds of our future leaders.  Will they take the bait?  Left to their own devices, not a chance.  There’s no group more inclined to circle the wagons and whimper to each other that they are the best and brightest, and outsiders are too mean and uncouth to be worthy of their attention.

Which means it’s left to the rest of us, lawyers, pundits and those few lawprofs who have the guts to challenge their brethren, even in the typical tepid tones that characterize communications between intellectuals, to hold their feet to the fire.  Will they?  Will we?  If we want better for our future, then we have no choice but to shake it up. 

In Walter’s honor,



***

It should be noted that this isn’t really a review of Walter’s book.  That’s because I received a pdf file of the book rather than a hard copy for review, hand inscribed with the requisite words,”To that great humanitarian, Scott, for all he’s done to expand my horizons and make my world a better place,” so I can put it on my library shelf and stare at it with self-serving pleasure.  Also, the  Publisher’s Weekly review pretty much captures my thoughts on the book itself, and there isn’t much point in saying it again.  If it’s not worth the stamp to Wally, then who am I to disagree?

They call it footnote 9 in Guilderland.  Yes, Guilderland, but if you voted the Libertarian Party line in the last New York State election, then it might mean something to you as well.  From the Times-Union :

The issue stems from an April 2008 query to the committee by Albany County Judge Thomas Breslin, the supervising criminal court judge in New York’s Third Judicial District.

[Warren] Redlich had been sworn in as a Town Board member three months earlier, raising concerns from the district attorney’s office and town attorney that his continued handling of cases originating in Guilderland created an appearance of a conflict.

The concerns included that the Town Board has disciplinary and budgetary power over the police department and court staff and appoints the town attorney, who serves as prosecutor in traffic court.

Breslin’s letter triggered a confidential February 2009 letter of caution to Redlich from the committee, informing him that not only did his law firm have a conflict of interest but also that the firm’s website contained statements that were “misleading, oversimplifications and exaggerations.”

Now what reason would that be not to hype yourself on your website, lest it somehow find its way into the hands of the disciplinary committee?  Not only did Warren Redlich have a website, but a blog as well, though it transformed from blog to, well, something else when he ran for Governor on the Libertarian Party line last election, where he got more than 48,000 votes. 

Not a bad showing, especially for a Republican, but he lost.  And he returned to both Guilderland and the courthouse trenches, which presented a bit of a problem for the Guilderland town board member because the conflict of interest.  Warren wasn’t going to stand idly by while his livelihood was taken away, so he sued. 

A judge has dismissed a federal lawsuit filed by Guilderland Town Board member Warren Redlich challenging a state attorney-watchdog panel’s finding that he cannot practice law in a court whose budget he oversees.

The case thrust Redlich, a Republican and one of the region’s most colorful political figures, into direct conflict with U.S. District Judge Gary L. Sharpe, a no-nonsense jurist who has shown an unwillingness to suffer lawyers and defendants who cross him.

Buried within Judge Sharpe’s decision is footnote 9.

“Mr. Redlich continues to display an apparent disregard for the time and resources that this court must expend in interpreting his poorly-drafted pleadings and analyzing his sloppily-constructed and thinly-researched memoranda,” wrote Sharpe, who presided over the corruption trial of former state Senate Majority Leader Joseph L. Bruno.

“Whether this disregard stems from laziness, incompetence, bad faith, or some combination thereof,” Sharpe continued, “Mr. Redlich should be mindful in drafting future submissions that the court’s patience has worn thin.”

It was the smack heard around Guilderland.  I can feel the sting here.  Just brutal. 

But no Republican cum Libertarian (for the uninitiated, the Libertarian Party in New York isn’t really libertarian, but pretty much a cash and carry proposition) would such a bench slap without retort:

“You can read the memorandum I submitted, and I cited more cases than he did,” Redlich said of Sharpe’s decision…

Well, no, Warren.  The winner isn’t the guy who cites more cases.  At least not outside of Guilderland.

There’s a price to be paid by those who run for office.  Even lawyers.  That price is not to engage in conduct that involves inherent conflict of interest, such as having cops and judges whose budgets, salaries and benefits are dependent upon your vote.  I fully accept Warren’s statement that he would never use his vote on the town board to curry favor or as a threat.  So what?  It smells bad, and that’s all it takes to create the appearance of impropriety.  Lawyers can’t do that.

I similarly realize that it’s tough to maintain a criminal law practice in the hinterlands.  They dont commit enough serious crimes.  Sure, they have their share of drunk driving and cow-tipping cases, but it’s hard to maintain a decent lifestyle on that.  And even when they do commit murder, they either can’t afford a lawyer or go pro se.  No, it’s not easy up there.

Still, the conflict of interest rules apply, even when it means you can’t represent defendants in your own town.  This is the sort of thing that one ought to consider before running for office, no matter how strongly one wishes to serve his neighbors, or how many cases one can cite in a string.

And frankly, Warren, it really wasn’t a good idea to use your mother as the plaintiff in your federal action to claim a deprivation of Sixth Amendment right to counsel of choice.  Aside from the right not being absolute, your mom hadn’t been charged with anything.  Yet.

H/T David Giacalone

During a transitory foray into the land of twitter yesterday, I came across  a twit by my dear friend Kevin O’Keefe (who I believe to be Irish), honcho of LexBlog.

Can/should lawyers blog/tweet about pending cases? Just got off phone with reporter on this.

How peculiar, I thought.  So I  twitted back at him, “Why would a reporter ask you?”

Kevin responded, “I may know a few things on the subject.”  I replied, “It would seem that you might be the worst person to ask about such things.”

My interest wasn’t so much piqued by the fact that it was Kevin we’re talking about, as I have faith that Kevin, who practiced law long and hard and who has steadfastly maintained that blawgs are an adjunct to excellence rather than a substitute, would not only give a good soundbite, but appreciate the ethical implications.  No, Kevin would do fine.

But the “why” part remains the same.  As far as any journalist would know, Kevin is a guy who sells blogs to lawyers for a living.  Why would a journalist ask a guy who sells blogs to lawyers about whether blogging/twitting about pending cases is a good idea?  If someone is going to write about this very sensitive and problematic subject, where should he turn?

This is what troubled me.  Usually, it bothers me when I see some lawprof quoted on the hardscrabble, nitty-gritty reality of the courtroom, because journalists love to beef up their work with the ascribed credibility of law professors who know everything there is to know about the practice of law.  And so the journalist writes, the lawprof opines, and those of us who have a clue what’s beneath the surface cringe.

I’ve written much about lawyers so beloved of seeing their names in print, their faces on the tube, that they will run down to the local journalist like Odie the dog, tongue a’waggling, for the chance to offer an opinion.  The fact that they know absolutely nothing about the subject or case doesn’t slow them down for a second.  The fact that they have absolutely nothing to contribute is irrelevant.  Hey, Ma!  I’m on TV!!!

Now comes an opportunity to say a few words to the journalists, a pretentious word in itself, about their source of information.  Understand that the journalist, foundationally, is there to write, read, report.  He is not the expert on the subject at hand, but sufficiently adept at reporting about things unknown to him to earn his pay.   And so the reporters turn to others for the color and expertise.  Time constraints demand that they cut a 27 minute explanation down to 10 seconds, but that’s perfect give our attention span.  Like twitter, the sound bite is an art.

But it similarly requires the journalist to have one additional skill, and a critical one at that.  To be capable of identifying a credible source of information as opposed to a warm body with a law degree or a blog.  Aye, there’s the rub.

I sent Kevin an email after our twits asking him what he told the reporter.  He didn’t respond.  He’s probably pissed at me.  You know how those Irish guys can be.  But I fully expected him to tell me that he explained how lawyers had to be critically careful writing about pending cases, concerned with disclosing confidences, revealing strategies, giving up information that inure to their clients’ detriment.  I’ve no doubt that Kevin knows that the client comes first, and said as much.

The question that remains is what kind of reporter would decide to ask a guy who sells blogs to lawyers, rather than ask lawyers who blog, for comment.   As  Rick Horowitz noted in his twit on the subject, it’s not “[b]ecause there were no lawyers available.” 

We often wonder why the public understands so little about what lawyers do or what some case or issue means.  One problem is that meaningful answers require more than 10 seconds, even if that’s all the time they have to flesh out the substance of a story after the 3 minute introduction, 3 minute loaded question and 3 minute conclusion.  The other problem is that the mouthpiece, the talking head, the expert, may be nothing more than a warm body with some title that gives the appearance that he can offer an opinion.

To that end, have you ever noticed how often the person speaking about a criminal matter is captioned as “former prosecutor?”  Anybody want to venture a guess why a lawyer whose voice can be linked to some official government title has more TV cred than someone who does whatever it is that relates to the subject?  Kevin?

There’s one thing you can bank on, however.  If there’s an open mike and rolling camera, they will never be shy of lawyers willing to talk, whether they’ve got something to say or not.