It has to be hard these days, finding a middle ground between things you actually know and the lies you tell others. After all, if you told them the truth, it could totally kill your biz mojo, and nobody wants their biz mojo totally killed.  So I felt badly for my pal, Kevin O’Keefe, who has a deep interest in getting and keeping lawyers engaged in social media. Although, Kevin’s bread is buttered by blogs, and his pitch was about twitter.

Twitter is under siege with people saying its days are numbered. Users are threatening to leave for any of number reasons – most of them baseless. Financial analysts and reporters, looking at Twitter’s declining stock price, see a dying company.

I couldn’t disagree more. Twitter is what it is, one of the more powerful, if not the most powerful, news and information reporting utilities in the world. I doubt that Reuters, UPI or the AP had near the influence and importance in their first decade.

This might have been an opportune moment to discuss the actual problems being raised. Instead, Kevin dismissed them as “baseless,” the only issue being twitter’s stock price.  And that issue, of course, is inextricably woven into the problem that twitter, despite public participation, has no sound business plan to monetize all those eyeballs. Continue reading →

It’s past surprising that college students, and their adult enablers, are analogized to 1984’s Ministry of Truth, but when the trend extends into cries that appellate court opinions should be sanitized to omit offensive language, it’s noteworthy.  That it happened in Scotland may make some feel less concerned, but that it happened at all suggests that the United States could well be next.

From the Herald Scotland:

Calls have been made to remove jokes about paedophilia and the murder of a child from a ruling on the judiciary’s official website after they were deemed too offensive for the public

The Scottish Court Service has been urged to delete details of a hearing which centred on whether an accused, Liam Rodgerson, should have been placed on the sex offenders register for posting distasteful jokes on Facebook.

How distasteful? Continue reading →

When the Seventh Circuit held it constitutional to impose a $30 booking fee on every person arrested, guilty or innocent, because it was “rational” to collect the cost of processing an arrest from the person who chose to be arrested, only one judge refused to get the idea that innocent people are arrested too, and it was facially absurd to make them pay for the privilege.

This should be a simple case. The village’s “booking fee” ordinance is unconstitutional on its face. It takes property from all arrestees—the guilty and the innocent alike—without due process of law. The deprivation occurs at the time of arrest, immediately and finally. It occurs based on only the say-so and perhaps even the whim of one arresting officer. By no stretch of the imagination can that be due process of law.

That, of course, was from Judge David Hamilton’s dissent.  But lest anyone suspect that there is something in the water in Wisconsin, as opposed to, say, Flint, Michigan, the same insanity appears to infect Texas as well. Continue reading →

One duty of the president is to nominate individuals to the federal judiciary, including the Supreme Court.  The appointment clause in the Constitution, Article II, §2, cl. 2, makes the process remarkably clear unfortunately opaque.

[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

That the president “shall” nominate is pretty clear. That it shall be “by and with the Advice and Consent of the Senate” is where things get cloudy. There is a dearth of law* on the issue, and general views seem to be governed more by political expediency than anything else.  The arguments of the teams are entirely unprincipled and designed to screw the other team. Each team’s cheering section is trying to out-cheer the other. Continue reading →

The number for 2015 was 149. If that was out of 150, it would be a hugely significant number. But it’s out of tens of thousands, hundreds of thousands. Suddenly, 149 doesn’t seem like that big a deal.

In 2015, 149 people convicted of crimes large and small — from capital murder to burglary — were exonerated. It is the highest yearly total since this grim form of record-keeping began, in 1989.

In that time, there have been at least 1,733 exonerations across the country, and the pace keeps picking up. On average, about three convicted people are now exonerated of their crimes every week, according to the annual report of the National Registry of Exonerations. The registry defines an exoneration as a case in which someone convicted of a crime is cleared of all charges based on new evidence of innocence.

If there was someone with any gravitas asserting that our legal system was perfect, this would be significant.  But no one does. Even the apologist platitude, “it may not be perfect, but it’s the best system there is,” incorporates the reality that mistakes will be made.  So out of hundreds of thousands of convictions, there were 149 mistakes? Most people would not only not lose sleep over it, but feel pretty damned good about our success rate of convicting only the guilty. Continue reading →

My old pal Mike from the train used to tell me stories of Nino Scalia, cadet captain, from high school where he was a year behind. It was a Catholic military school, and Mike was Irish. The Irish kids and the Italian kids were always trying to show each other who was “better.” Kids are like that. They hold their identities dear. Too dear.

Some of the stories were funny. Some were about how Nino Scalia was a very tough kid, unyielding in his power over other cadets. All were about a person, a human being. It’s hard to hate a person when they become real rather than a cartoon character, a one-dimensional cutout that can be characterized simply as good or evil. I had the benefit of hearing Mike’s stories. Nino Scalia became a person to me, even though I never met him nor had much chance of hanging out with him to find out for myself.

Justice Scalia wrote decisions that I consider horrible. He also wrote opinions like Crawford, Johnson, Jones, Kyllo, and his dissent in County of Riverside. Ronald Collins runs down his First Amendment opinions. Jonathan Adler sums it up:

Justice Scalia would not invent or discover unwritten rights in the constitution, but he would vote to strictly enforce those that are enumerated, such as the requirement that defendants may confront the witnesses against them or the defendant’s right to a jury trial.

Continue reading →

Nine years ago today, the first post appeared at SJ.  As of today, there have been 7,641 posts (including this one) here. That’s a lot of posts. In internet time, nine years seems like forever.

I never kept count of the number of people I’ve angered, disappointed, infuriated and outraged over the years. On the other hand, some of you have enjoyed SJ and found it somewhat useful.

Either way, I’m still at it. At least for now.

What? You didn’t think it was going to be Revolution 9, did you? That song sucks.

Some of the screams of online outrage are ridiculously adorable. Some are batshit crazy. Some just keep screaming and screaming, supported by the popcorn lobby. Some become legends.

Sit down, Mike Masnick. I have something to tell you and it’s going to make you sad.  The cries of defamation from Australia by Milorad “Michael” Trkulja fail to rise to any meaningful level of hilarity. They’re banal, boring and silly. We’ve seen so much better, so much funnier, that Trkulja’s complaints don’t make the cut.

But that’s not the end of it. Oh, no. Not by a long shot. Because it’s not just about pathetic Milorad Trkulja, but the Aussie solicitor who took up his misbegotten cause, Stuart Gibson. What Trkulja failed to offer, Gibson provides. Funny how that happens.

Continue reading →

Upon reading the Daily Princetonian’s story of the nightmarish racist treatment of a Professor of African Studies, the first thought that popped into my mind was of the absurd complaints surrounding the Aaron Swartz prosecution. His family, friends and supporters thought the system singled him out for abuse, and constructed a narrative as to why.

Except there was nothing whatsoever special about Swartz’s treatment. He was treated as poorly as anyone else, as tens of thousands of people have been treated. The “problem” wasn’t that Swartz was treated differently, but that he was treated the same. They just didn’t realize it. They had no clue how anyone was treated because they didn’t give a damn until it touched someone they cared about.

It seemed pretty much the same when it happened to a professor at Princeton:

Imani Perry, the Hughes-Rogers Professor of African American Studies at the University, was arrested in the borough of Princeton for an outstanding parking ticket from three years ago on Saturday, according to Perry’s Twitter account. Continue reading →

Last year, I did a quick run through LegalTech, the trade show for businesses with a lifespan of about a month to show how cool their legal technology is. It was the “swag report,” and it was for fun, though some of the vendors who got caught on video didn’t think it was funny at all. Defectum humoris non curat lex.*

I didn’t return this year. One year of wading through that crap was enough. It was a crashing bore.  And there was someone who will follow my lead, saving me from any thoughts of having to suffer LegalTech again.

But there are others who not only went to LegalTech this year, but did so because they wanted to go. I know, but it’s true. My old pal, Niki Black, was there.  She has an interest in legal technology that I don’t necessarily share, which is cool. Each to their own. And she decided to test these “innovators” while she was at it.

After talking to all of these innovators, I decided take a tour of the Exhibit Hall. But instead of seeking out booth swag, I decided to recreate an experiment that I conducted at the ILTA conference last fall. Continue reading →