The anecdotes were interesting, particularly that Justice John Marshall, who gave us the seminal Marbury v. Madison establishing the primacy of the Supreme Court in determining the constitutionality of laws, was simultaneously the Secretary of State for the first month of his tenure.

It was not ever thus. John Marshall, undoubtedly the greatest chief justice ever, spent his first month on the court as the secretary of state of the United States. That’s right, the chief justice and the secretary of state were the same person — an arrangement permitted by the Constitution, which only prohibits members of Congress from holding other offices. Marshall’s most famous decision — Marbury v. Madison, which established the principle of judicial review — arose from Marshall’s own failure as secretary of state to deliver the obscure William Marbury his commission as justice of the peace in the waning hours of the Adams administration. No one cared.

But Noah Feldman’s op-ed in the New York Times, which seizes on such upon the medieval influence of robed monks to the justices who played poker with presidents (Robert Jackson), asserts the obvious and then takes a blind leap into oblivion.

It is absurd for conservatives to criticize the cosmopolitan forums where judges from around the world compare notes. And it is absurd for liberals to criticize the conservative justices for associating with people who share or reinforce their views. The justices are human — and the more we let them be human, the better job they will do. Let the unthinkable be said! If the medieval vestments are making people think the justices should be monks, then maybe, just maybe, we should to do away with those robes.

But of course they’re human.  Of course they have beliefs.  And nobody suspected they holed themselves up in their rooms when they weren’t on the bench, cloistered from society and its myriad influences.  How that leads to the conclusion that “the more we let them be human, the better job they will do,” however, remains unclear.

Disconnected from any other aspect of his argument, Feldman states that Supreme Court Justices are too “isolated” from the rest of society, leading to their making “isolated” decisions.

The disengagement from public life that followed has had real costs. Isolated justices make isolated decisions. It is difficult to imagine justices who drank regularly with presidents deciding that a lawsuit against a sitting executive could go forward while he was in office, or imagining that the suit would not take up much of the president’s time. Yet that is precisely what the court did by a 9-to-0 vote in the 1997 case of Clinton v. Jones. The court’s mistaken practical judgment opened the door to President Bill Clinton’s testimony about Monica Lewinsky and the resulting impeachment that preoccupied the government for more than two years as Osama bin Laden laid his plans.

Does Feldman really believe that the absurd notion that Bill Clinton’s administration wouldn’t be, oh, “busy” dealing with the penumbras of Monica Lewinsky’s blue dress was due to their lack of political engagement?  Hey, they’re allowed to read the Times in chambers.  The error of judgment there, and if Feldman is paying attention, in a plethora of criminal cases where the notion of New Professionalism in policing informs their decisions, isn’t because they don’t have access to the same information as the rest of us.

Noah Feldman asserts that if we let Supreme Court Justice indulge in their politics like anyone else, because they are human, you know, they will somehow manifest a connection to the rest of society that will make their decisions more meaningful, real and effective.  And two plus two equals banana.

First the flaw: If justices were given free reign to openly become advocates for political positions, then we would have no reason to expect them to do otherwise.  They would hold firm to politicized positions, which would immediately become their justification for appointment, and would reflect nothing more than the party with the clout and opportunity to load the court with its adherents.  It would be like Congress, except with life tenure.

Of course, it might well be argued that this is what we have already, although it’s kept somewhat under cover to avoid the flagrant appearance of impropriety.  Nobody suspects that appointments ignore the justices political views, even though they proclaims impartiality before the Senate by mouthing the words on the script. 

While it’s somewhat true, and more true in certain cases such as Justices Alito and Thomas, it’s not nearly as true as most of us suspect.  Associate Justice Antonin Scalia, for all the flak he takes, has been on the right side of some of the most pro-defendant decisions around, authoring Crawford for example.  While the left hates him dearly, he’s added greatly to trial fairness. 

By stripping our preconceived biases for the justices, the truth is that most haven’t voted as predictably along political lines as we believe.  It may be more a matter of judicial philosophy than politics, assuming the two are separable, but the outcomes show that we take our heroes where we find them.  I’m still waiting for a decent decision out of Justice Alito too, but hey, no one promised that every justice would eventually get something right.

The better solution to address Feldman’s beef isn’t to allow rank politics to permeate the Supreme Court, but to appoint people to the court who reflect the experience of real people in the real world.  When the universe of potential justices comes only from the most isolated of the elite, whether the ivory tower, the halls of justice (the Department of Justice, that is) or the Whitest of White Shoe firms, any complaint that they lack a sense of how life works on the streets has nothing to do with their wearing black robes.

Feldman would have done better to join the  Trench  Lawyer  Movement if he wants to expose the court to the real world.  Of course, Feldman, a professor at Harvard Law School born shortly after I purchased my first pair of earth shoes, may not be aware that more real lawyers, the ones connected to that public life he reads about in the Ivory Tower, can be found in the hallways of courthouses than anywhere else.

And having enjoyed a seat at the longest running floating poker game on the Long Island Railroad, any president inclined to let a trench lawyer cum justice into his poker game better know how to play cards.  We’re hard to bluff.

The newspaper headline after the verdict played up the politics: Tea party member gets 8 years for attacking Obama supporter.  Of course, sensationalist headlines are nothing new, and certainly the political angle made for a more interesting story.

But the headline his lawyer would have written was more disturbing.

Headline should have read: Tea Partyer Gets 8 years for Attacking Obama Supporter, Despite Efforts of His Liberal Blogger Lawyer.  That’s right, I had to defend this tea partyer, who destroyed the nose of an Obama supporter with a pool cue.

a 50-year old attorney and former judge living in suburban Atlanta. My passions are classical music, constitutional law, poetry and macroeconomics.

His passions don’t interest me in the slightest.  What does is his inability to see how his political zeal both influenced his defense of his client, and his disgraceful post-trial conduct.  A disease has infected many on the internet who find themselves incapable of distinguishing between their politics and their duty. 

Brighton, it appears, does some criminal defense law.  Given the outcome of the case, there’s no reason to assume he does it very well, though a loss isn’t indicative.  Rather, it’s Brighton’s patting himself on the back for being able to defend this tea party miscreant, proving how big a person he is as a liberal.

I did not defend his actions by bashing the President; not only would that have been phony for me, it wouldn’t have worked.  Under Georgia law, there is no jury nullification, and you can’t justify a physical attack with a political argument.

All in all, I tried very hard to just be a good lawyer, hold my nose, and leave the politics out of it.  Before the jury came back and put my client in jail, Mr. Morgan told me I did a good job. I was satisfied that I had not let my politics infect my obligations as a defense lawyer.

According to Brighton, indigent defense in his neighborhood is handled by experience lawyers assigned to represent the poor.  Is there a box to check off about political party affiliation?  Clearly, this was a critical aspect of the defense, given that Brighton was constrained to “hold his nose” while defending this scum.  How proud he was that he muddled through it, “did a good job,” despite the defendant’s abhorrent politics. Maybe he should get a statue attesting to his political benevolence.

When a lawyer defends a person accused of murder, does he concern himself about being a phony?  Is the defense contingent on what the lawyer thinks of the crime?  Or the politics of the criminal?  Never.  At least never if the lawyer belongs in the trenches, entitled to hold another person’s life in his hands.  That Brighton would think to mention it, that he had to “hold his nose and leave politics out of it” to defend his client, smacks of his incapacity to be a criminal defense lawyer.

We do not support the crime by defending the criminal.  We do not concern ourselves with his politics, eating habits, television preferences or favorite color. 

One of my friends pointed out that by losing, I disqualified a Republican voter (convicted felons can’t vote).  But defense lawyers always feel bad when their clients are sent off to prison, even when they are of questionable political orientation and engage in violence. I don’t know why.

Even when they are of questionable political orientation?  Are you nuts?  Brighton is infected with the disease of politics, a malignancy that preclude his ability to recognize how his political fervor colors his thinking.  It causes blindness to ones faults and inability to understand and fulfill one’s duty.  In his case, it appears the disease is terminal.

This isn’t the perspective of the criminal defense lawyer.  This isn’t the perspective of a real liberal, not that it matters.  This is what becomes of a person when politics infects their very being to the point where they are incapable of comprehending how their misguided zeal has undermined their obligation to their client.

The internet is filled with political zealots who suffer from this disease.  The wells of courtrooms should not be.  Your politics are your own business.  Keep it out of the trenches.

H/T Ken at Popehat

When I was a puppy law clerk working for an old time criminal defense lawyer, a call came into the office seeking help with a social security disability claim.  My boss, affectionately known as Uncle Milty, told me to send it to Harry Binder.  Even then, representing claimants in social security disability was a specialty niche, and the guy who did it was Binder.

That would be Binder & Binder today.  While talk of branding today is mostly hogwash, the name Binder & Binder has long been the established name in the New York bar, and maybe the country, for handling that very specialized sort of work.  They didn’t have the flash of Harry Lipsig, who was the dean of personal injury, but there was never any question about where to send a SS case.

So if someone wanted to challenge Binder in the social security market, they would have to do some very hard work, establish their bona fides and really produce to knock the king off his thrown, right?  Or they could just pay off Google.

From the Legal Skills Prof Blog,

A California federal district court just held that a law firm specializing in disability law was liable under the Lanham Act for purchasing the law firm name “Binder & Binder” as a Google search term in order to drive traffic to its website.  The case is Binder v. Disability Group Inc., C.D. Cal., No. 07-2760, (1/25/11). 

Having concluded that Binder & Binder held valid trademark registrations, the court applied the eight-factor test for likelihood of confusion as set forth in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 204 USPQ 808 (9th Cir. 1979). The court found that the factors addressing similarity of the marks, the strength of the plaintiff’s marks, the similarity of services, the intent of the defendant, and marketing channels all weighed in favor of likelihood of confusion.

The court also found actual confusion, based on the results of a survey, witness testimony, and other evidence.

The  court awarded Binder & Binder $292,000.00 in lost profits and enhanced damages for willful infringement by the competing law firm.

There aren’t many of us who have names worthy of such interest, that competitors would actually pay Google to drive people seeking them to another place, a place where people are not looking, are not interested, are not desirous of their services. 

Notably, the court found “actual confusion,” not merely theoretical or the threat of confusion.  When someone searches for something on Google, they expect Google to deliver an honest response, the real answer to their question.  They sometimes forget that Google is just another business selling whatever it can, including the results to your search.

More to the point, however, is that this is where lawyers have turned to make a living, sponging off the hard work and reputation of others, anticipating that enough people will be confused and mistaken click on the wrong link so that they will get business intended for another. 

Lawyers have happily become cannibals, eating their own for a buck.

Thirty years later, I would still send a case to Harry Binder if someone called seeking representation for a social security disability claim.  I certainly wouldn’t take the case, as it falls way outside my area of practice, and Binder has continued to perform with excellence in its niche.  But I would likely Google the name to get the telephone number, and I would fully expect Google to send me to the right place.

For those of you inclined to buy the Binder name, or my name, or some other lawyer or firm’s name, you’ve demonstrated two things: You’re unworthy of whatever traffic you’ll get and you’re a sleazeball.  You want the traffic that seeks Binder and Binder?  Be as good as Binder & Binder.  Establish your competence the way Harry Binder did, case by case, year after year.  Get the traffic because people out there want you, not because you bought a better lawyer’s name.

Unless, of course, you’re in Canada, where  being sleazy was held not to be deceptive and received the court’s seal of approval.

The mantra of the Slackoisie has become “you are what Google says you are.”  Baloney.  Any fool can buy a search term on Google.  For the moment, internet users remain relatively naive about what they’re spoonfed by Google and why, ignorantly assuming that whatever the search engine spews is reliable.  I’ve urged the start of the Fifth Page Movement as a way to defeat the incentive to be as sleazy and deceitful as possible.  It’s yet to take off, but I hope that people will come to realize its efficacy.

In the meantime, if the best you hope to achieve as a lawyer is to deceive enough people to make a living, or make a killing, then you deserve to be called a sleazeball.  When you sat in law school and dreamed of what you would be ten years down the road, did the name “Binder” come up?  What about the word “sleazeball?” 

Or did you dream of being a great lawyer?

I wasn’t going to write about this.  When I read the emails and twit (just one, not scores) alerting me, I responded, “so what, who cares?”  I refused to elevate it to a position of significance by writing about it, making it worthy of my time.

But then I read Eric Turkewitez’s post at  New York Personal Injury Law Blog about Dominic Barbara’s having been suspended from the practice of law, and changed my mind.  Barbara isn’t an important lawyer.  He’s loud.  He’s one of the foremost self-promoters on Long Island.  Aside from that, he’s inconsequential.

But being loud was good enough to get a handful of “high profile cases.

[Barbara] represented Howard Stern (and is a regular side-kick, call-in guest on his show). He also represented  Joey Buttafuco, Jessica Hahn, and Michael Lohan, each of whom had more than their allotted 15 minutes of fame. New York Magazine once called him the “biggest, brassiest lawyer on Long Island.” And last year he was retained for a headline making crash on the Taconic Parkway that killed eight people.

For more than 35 years, The Barbara Law Firm has performed at the highest level of quality legal representation in the fields of Family, Matrimonial, Criminal, and Civil Law.

First, as to Barbara. He was suspended this week after “an avalanche of Grievance Committee sanctions” (nine Letters of Caution, nine Admonitions, and two Advisements). That’s a lot of baggage, and as a consequence of the latest round he was handed an 18-month suspension.  Among the charges, and these seem to be the straws that broke the camel’s back, are that he failed to issue itemized bills as required, failed to supervise the lawyers in his office, failed to timely refund a portion of a fee that had not been earned after the client fired him, and engaged in conduct that adversely reflects on his fitness as a lawyer by failing to adequately communicate with that client (or her new counsel).

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

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

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

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

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

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

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

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

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

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

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

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

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

And Luis was acquitted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wait for it…

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

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

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

Outrageous?  Yes.  Unwarranted?  Absolutely. Lesson?

Yes, this is still a marketing lesson.

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

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

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

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

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

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

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

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

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

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

Evidently so, according to some early indications.

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

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

 Koppel’s take?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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