I wrote a post yesterday about the amusing naked, slimebag mud-wrestling between Neil Squillante’s  TechnoLawyer and Aaron Street’s Lawyerist.  The fight, as described by Carolyn Elefant at My Shingle, was over Squillante’s  take-down notice for the Lawyerist using the words “Small Law” in a post.

Perhaps Technolawyer has a trademark on the term SmallLaw – but the phrase “small law” is purely descriptive.  I have used it many times myself at my blog, MyShingle, long, long before your newsletter ever began covering these issues.  My blog also has enormous visibility on all matters related to solo and small law, and frankly, the takedown letter has a chilling effect on anything that I might ever write at my blog.  Will I too be subject to a take-down notice if I use the term “small law” in a header?

I changed my mind about posting almost immediately.  Both the Lawyerist and TechnoLawyer are turds in my book, and unworthy of my attention.  After all, this was the same Squillante involved in the  ABA Blawg 100 vote buying fiasco. and Street’s “lawyering survival guide,” premised on the HuffPo concept of offering space to any idiot willing to write for free, no matter how vapid and worthless the post, is a mile wide and a millimeter deep.

But then Neil raised the stakes in his effort to rationalize his absurd claim to own Small Law.   Squillante told the ABA Journal :

After more than two years of using the mark and building our reputation in SMALLLAW, we find it surprising that a fellow online legal publication founded by lawyers would act so lawlessly. Lawyerist’s publicity stunt attempts to conflate a narrow trademark issue about the name of an online publication with some sort of faux cause célèbre on behalf of small firms.

We believe Lawyerist’s actions reflect on good versus bad Internet citizenship, not just trademark law. For example, we have linked to 292 Lawyerist articles in our BlawgWorld publication since January 2009, including two links in yesterday’s issue. By contrast, Lawyerist has never linked to TechnoLawyer. Not even in yesterday’s article, which was about TechnoLawyer.

So Lawyerist is a “bad internet citizen” because they don’t give TechnoLawyer any link love?  That’s what this is really about.  Just like Squillante’s cash sweepstakes for those who vote for TechnoLawyer, good and evil online are determined by what helps Squillante’s business?

While my gut reaction to this nonsense was a pox on both your houses, Neil’s latest effort to make this a war between good and bad internet citizenship lowers the bar (with apologies to  Kevin Underhill and some gratuitous link love).  As much as the Lawyerist may appeal to young lawyers who are dumber than bricks, TechnoLawyer makes it look thoughtful and worthwhile.  It makes me wretch.

The internet wasn’t invented (whether by Al Gore or otherwise) in order to put money in Neil Squillante’s pocket.  Internet citizenship, whatever that means, isn’t dependent on supporting Neil Squillante’s financial interests.  And as big as the internet might be, there’s no room in it for Neil Squillante to lecture anyone on virtue.

There is a definite good and bad, right and wrong, in my blawgosphere.  It entails the promotion of excellent lawyering, client service and adherence to our ethical obligations.  It’s got nothing to do with Squillante making money or getting links.  It’s got nothing to do with Squillante winning any prizes, no matter how much cash he offers in his sweepstakes.  It’s got nothing to do with paybacks and one hand washing the other, the sort of conduct that makes people despise lawyers.  And my good/bad, right/wrong blawgosphere has nothing to do with Neil Squillante.  If I want to use Small Law, or SmallLaw, or SMALLLAW, or smalllaw, send me a letter and we’ll find out who’s a good internet citizen.

I gave you a link, Neil.  Are you happy?

In the Chronicle of Higher Education, UC-Irvine Law School Dean Erwin Chemerinsky speaks of the future of legal education:

One reason schools are sticking with a familiar playbook: “It’s a cost-effective method of education,” Mr. Chemerinsky said. “Putting one professor in front of a large group of students is very efficient.” Clinical classes and simulations, which require low student-to-faculty ratios, cost more, he said.

Because his own law school wasn’t bound by decades of tradition, Mr. Chemerinsky said, he and the founding faculty members were able to do some things differently, like stressing hands-on, interdisciplinary study across all three years.

“It starts with having to charge ridiculous levels of tuition.”

By the way, what is “hands-on, interdisciplinary study”? Do we get to fondle a sociologist? 

You know what I would love in a new school — one that “wasn’t bound by decades of tradition”? A deliberate decision to embrace tradition. Let’s get a bunch of tough Socratic lawprofs in front of a classroom of students. And that’s it. Perfectly cost-effective. You can save money on admissions too by going old-school. Make it an old-fashioned GPA/LSAT meritocracy (and flunk them out if they don’t perform).

Women’s natural intuition, compassion and empathetic natures can help clients reach peaceful, creative, and satisfying solutions as well.

No well-behaved woman ever made history. Nor did she end the international slave trade in little girls.

Ready to misbehave yet?

Who would you prefer to have next to you in a brawl?  It shouldn’t be a brawl?  Maybe not, but when the hugging stops and the punching begins, nobody wants a lawyer who can’t land a left hook.

The dreaded pedagogy of the Socratic Method isn the cause of litigation, but the response.  It’s used because it develops the skills that lawyers use and need.  It’s unpleasant, if not downright miserable, for law students, unlike everything they’ve experienced up to that point, where teachers, parents, professors spent their days telling them how wonderful they are, how smart and cute, how the only thing they need to do to be successful and worthy is try their best.  What a load of crap.  Trying your best is fine for a second grader, but trying a case is what a law student needs to learn.

That it happens to now be traditional is just a matter of stumbling on an effective method of teaching early on.  The fact that UC-Irvine wants to do it differently, and at a much higher tuition, may be part rejection of tradition, but its also the abdication of responsibility to teach law students how to be lawyers.

When courts are replaced by therapy groups, Erwin Chemerinsky will be cutting edge. Until then, let’s show a little respect for tradition.  Not because it’s traditional, but because it works.

The line between a prank and danger has never been particularly clear, usually depending on the delicacy of one’s sensibilities and the projection of long-repressed memories of childhood slights.  But there are some things that are simply classics, one of which is putting a “kick me, please” sign on another kid’s back.

In the age of zero tolerance, however, even the classics must fall.  From the New York Post:

The fourth-grader was spotted sticking a yellow Post-it inviting “Kick me, please” on another little boy’s backside on Jan. 25.

But instead of getting banished to the corner for a timeout, the PS 158 prankster was bounced from the classroom for two days, The Post has learned.

The boy’s mom fumed that the old-school gag was just “playing around” — but a parent who asked to remain anonymous called the Post-it “maliciousness — it’s not kid’s play.”

And so, the heavy hand of protecting our youth from bullying fell.

The little boy’s behavior triggered a stern warning to the boy’s parents by school Principal Darryl Alhadeff.

“This incident is in violation of the Discipline Code and is classified as ‘infraction A37’ — engaging in bullying behavior — and will result in a Principal’s Suspension for a period of two days,” he wrote.

The  struggle to define “bullying,” a question I raised that has yet to be answered, hasn’t stopped angry parents and grocery clerks from exacting their punishment.  This idea that we can so utterly sanitize the environment in which our children are raised so as to eliminate anything that might potentially hurt someone’s feelings, is insane.  Our children need to learn to cope in a world populated by real people.  They need to be able to distinguish a prank from an attack.  They need to be able to take a punch once in a while and punch back.

What the heck are we doing to children, but the ones who engage in something so obviously intended as nothing more than a joke, as well as the ones who are being taught that mindless rules are the solution to anything that diminishes their self-esteem? 

While the examples of zero-tolerance madness are legion, this particular instance stands apart for its homage to probably the most classic schoolhouse prank ever.  Your grandparents did it. Your parents did it. You probably did it too.  And now, should your kids do it, they get suspended?  At least the 9 year old wasn’t led off in handcuffs, though I suspect that’s fortuitous and we’ll see that someday soon as well.

We’re in a marketing phase where products claiming to eliminate 99.9% of germs are all the rage.  What parent doesn’t want to protect her child from germs, right?  Except children need exposure to germs. Children need to develop a tolerance to what they will be exposed to throughout their life, and by depriving them of this exposure, we risk them harm when exposed to a particularly malevolent germ that would otherwise do them no harm.

This isn’t to say that we ignore real bullying, whatever that may be.  But it has to be more, significantly more, than putting a post-it that says “kick me, please,” on a kid’s backside.  Do we want to raise a generation of kids who become suicidal if someone tells them their clothes are ugly?  Do we want to raise a generation of kids who are heading for jail for saying so? 

More disturbing than the article itself are the comments, where it is clearly reflected, in a newspaper whose readership is not known for its liberal bias, that there is no teacup too delicate to be protected from bullying.  It’s Reefer Madness applied to bullying, that this otherwise innocuous conduct is the gateway to Columbine.

Just as fears of child sex molestation led to the creation, and abuse, of sex offender registries and the inclusion of public urination as an offense that so taints a person as to make them a public pariah forever, our fears of bullying are turning every act short of blowing a kiss into a zero tolerance offense.  Heck, even blowing a kiss is likely to get a kid in trouble for sexual harassment.

There must be a viable way to distinguish what constitutes bullying and what comprises ordinary childhood goofing around.  Crafting this world of offense surrounding our children’s every action helps no one, neither the purported bully nor victim, so mature into a reasonably normal, healthy person.  There must be a way to distinguish conduct that warrants intervention, mandates punishment, and comprises a true threat, without sweeping every prank ever pulled by a child into the pile.

So if you happen to see me walking about and put a “kick me, please” post-it on my back, I won’t rat you out to the principal.  I may, however, kick back.  Just as I’ve taught my kids to do.

I would give a H/T for this post to Jonathan Turley, but I won’t since he never gives a hat tip to me.

For a brief, bright, shining moment on the top of the hill, there was confrontation.  And now it’s gone.

The 6-2 decision of the Supreme Court in  Michigan v. Bryant is like a big, speeding Mack Truck being driven through the tiny gap left open in Crawford v. Washington, the watershed decision restoring the 6th Amendment’s promise to the accused to be able to confront witnesses against him.  The gap was the word “testimonial,” left undefined at the time with the vague promise of the loophole that swallowed the rule.

Then came Davis v. Washington, a domestic violence case where the Supremes held that the testimonial nature of a statement should be objectively determined, a troubling development in that it allows a court to manufacture its own reality without regard to the nature or purpose of a declarant.  Yet the court in Davis, and its companion case of Hammom v. Indiana, held that statements to police were “inherently testimonial,” except where the declarant was in imminent danger, and the statements were needed to “resolve” the emergency.

And now comes Bryant.  The victim, Anthony Covington, shot in the abdomen, questioned by police at a gas station six blocks away, gives the name and description of the shooter, Richard Perry Bryant.  Covington is taken to the hospital, where he dies about an hour later.

The MIchigan Supreme Court held that the admission of Covington’s statements against Bryant violated the confrontation clause.

The court therefore assessed whether Covington’s statements to the police identifying and describing the shooter and the time and location of the shooting were testimonial hearsay for purposes of the Confrontation Clause. The court concluded that the circumstances “clearly indicate that the ‘primary purpose’ of the questioning was to establish the facts of an event that had already occurred; the ‘primary purpose’ was not to enable police assistance to meet an ongoing emergency.”

The Supreme Court, with the majority opinion written by Justice Sonia Sotomayor, reversed.

The existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than “prov[ing] past events potentially relevant to later criminal prosecution.” Davis, 547 U. S., at 822. Rather, it focuses them on “end[ing] a threatening situation.” Id., at 832.

Because Convington’s shooter had yet to be arrested, the Court concluded that the threatening situation had not come to an end. So what if they were now 6 blocks away. So what if there was a platoon of cops around. So what it there was no indication that Bryant, who shot Covington through a door, had plans to walk the streets shooting up everyone in sight.  It could have been, and under an objective test, any argument that appears plausible, no matter how hard one has to squint, is good enough. 

And then the court said:

Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination.

Did you catch that?  The “prospect of fabrication” language?  As in “indicia of reliability,” the justification for ignoring the existence of the confrontation clause in Ohio v. Roberts?  This was rejected in Crawford, where Justice Antonin Scalia wrote that the promise of confrontation in the 6th Amendment could not be judicially wiped away by perceived reliability, and was, by constitutional mandate, subject to the crucible of cross-examination.  It’s back.

Sotomayor explained that the “ongoing emergency” language is a “highly context-dependent inquiry,” meaning that there is no rule, as one might have believed from Davis, but rather a wholly open-ended determination, where ignorance of details serves to expand the authority of police and diminish the rights of the accused.  It’s not limited to the objective purpose of the declarant, but includes the interrogator as well (as if the speaker’s testimonial purpose is somehow controlled or altered by those who hear his statements).

The combined approach also ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants. Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession.

Nor are the victims’ purpose necessarily clear:

Victims are also likely to have mixed motives when they make statements to the police. During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant. A victim may want the attacker to be incapacitated temporarily or rehabilitated.

It is thus back to the totality of the circumstances, subject to any argument that can manufacture an explanation that renders a statement non-testimonial without regard to the actual intention of the declarant, as in identifying the shooter so he can be arrested and convicted.  It’s back to the creation of a fantasy that justifies the admission of statements for their truth that are not subject to cross because the courts has wrapped them up in a benign, if wholly false, explanation.  Bye, Crawford.

Justice Ginsburg dissents:

Even if the interrogators’ intent were what counts, I further agree, Covington’s statements would still be testimonial. Ante, at 8. It is most likely that “the officers viewed their encounter with Covington [as] an investigation into a past crime with no ongoing or immediate consequences.” Ante, at 10. Today’s decision, JUSTICE SCALIA rightly notes, “creates an expansive exception to the Confrontation Clause for violent crimes.” Ibid. In so doing, the decision confounds our recent Confrontation Clause jurisprudence, ante, at 12, which made it plain that “[r]eliability tells us nothing about whether a statement is testimonial.”

Nino dissented as well, but he was less kind than Justice Ginsburg.  You can read some excepts from his dissent here, and I suspect you will be hearing about it from numerous others, thus relieving me of the burden.

Just as Crawford sought to slam shut the door that allowed judges to craft and engraft exceptions on the confrontation clause, Bryant cranks up the Mack truck to drive full speed through the testimonial gap, returning us to the days of rhetorical splendor, where prosecutors and judges are empowered to create fantastical scenarios of purpose and goal, seizing upon any piece of the fact pattern that might justify a benign purpose, and reaching the conclusion that some objective primary goal that miraculously removes it from the testimonial category, and therefore allows it to be introduced without being subject to the crucible of cross. 

The rationale of insignificant non-testimonial motives, combined with indicia of reliability, will pervade the decision, until we find ourselves back to the good old days of the most damning evidence spread across the courtroom, yet the accused denied any opportunity to confront.  But what harm could there be, since guilt will be proven reliably.

And tomorrow brings oral argument in Bullcoming v. New Mexico, challenging  the holding of  Melendez-Diaz, that the forensic chemist who actually performed the clearly testimonial tests sought to be used to conclusively prove a critical element of a crime can be replaced by a bobble-head

It was a bright, shining moment for confrontation indeed.  And now it’s gone.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ribstein begs off responsibility.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is what it’s all about .

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

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

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

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

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

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

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

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

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

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

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

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

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

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