The argument took place in 2008, but it’s just coming to light now because terrorists.  Tim Cushing at Techdirt offers some highlights of the government’s view of how and why the government justifies its surveillance, contained in the just-released “oral arguments presented by Yahoo’s counsel (Mark Zwillinger) and the US Solicitor General (Gregory Garre).”

Included are such gems as this:

Zwillinger opens up the arguments by questioning the government’s methods of determining who should be placed under surveillance.

Why I show this to you is because I think it’s a perfectly fair question for you to ask the Solicitor General of the United States how a name gets on this list. This isn’t reviewed by a — the FISA Court. These names aren’t reviewed by the Attorney General of the United States. The difference between surveilling an account and exposing someone’s most private communications and not is how a name gets on this list; and all we know about it from page 47 of their brief, is that an intelligence analyst puts it on the list.

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I stumbled across a post by Dan Jaffe at LawLytics, a lawyer marketing company, that every lawyer needs to read.  Ironic for a legal marketer, Jaffe explains, in a very lengthy, but deeply substantive and nuanced fashion, how we are diminishing ourselves for a buck, and why that buck is going to others rather than us. Much as I occasionally touch on pieces of this problem, Jaffe lays it all out, chapter and verse.

The post is titled “How much is that lawyer in the window? The secret commoditization of the legal profession,” and he means it.  And he explains it.  Just to whet your whistle,  consider:

The internet has created a culture of instant gratification in consumers. The best lawyers know that if they aren’t available when a potential client wants to talk, a lesser lawyer will be there to take the call, and that many potential clients will not wait. To many potential clients the internet makes it impossible to tell the difference between excellence and mediocrity. And the more legal fees that flow to the mediocre lawyers, the more money they have to reinvest in marketing, and the dumbing down of the bar continues in a twisted mutant evolution that serves neither lawyers nor clients.

Given the length of Jaffe’s post, and your need to take the time to read it (rather than this), I’m cutting this short.  And for any of you bar association “listservs are cool tech” types, post a link on your listserv and tell the ten other goofballs to read it as well. Just do it.

Update:  Dan Jaffe responds by noting, after a generic thanks, that what I wrote about him “stuck in his craw.”

However, in reading his post, something he said stuck in my craw.  He referred to me as a “legal marketer.” While labels, especially objectively true ones, don’t generally concern me because I know who I am, I noticed that the context of Mr. Greenfield’s reference to me as a “legal marketer” did.

I completely understand, Dan, and would feel at least the same if someone called me a legal marketer.  And yet, what choice did I have?

I’m going to go out on a limb here and suggest that Candice Padavick had no plan, after having gotten out of the cab after she was told the cabbie didn’t take plastic, gone up to her apartment on Collins Avenue in Miami Beach, of returning to pay her $16.90 fare.  Once she undressed and put on a robe, she was calling it a night.  It’s wrong to beat the cabbie out of a fare.

But then, a security guard in her building, Juan Camona, a gentleman by any standard, gave the cabbie a $20 to cover the charge.  It’s unfortunate that it came after the cabbie called the police about the fare beater.

According to court documents recently obtained by NBC, Padavick took a cab home one night several months ago and was unable to pay him with a credit card, so she had to go to her apartment to get him his money.

“It was $16.90. I wont forget. I tried to pay with a credit card and when I tried to pay he said no no I only take cash,” Padavic told reporters. Continue reading →

The topic is immigration.  The question is highly political.  And yet, what comes of it may well prove critical to criminal law at its most mundane.  From the New York Times Room for Debate:

Frustrated by congressional inaction on immigration, President Obama is said to be considering executive orders to protect up to 5 million unauthorized immigrants from deportation, including parents of children who are citizens or legal residents and even more undocumented immigrants who came to the United States as children.

But does the president have the power to decide unilaterally whether to exempt millions of immigrants from deportation?

Before we go any farther, keep your opinions about immigrants, pro or con, to yourself.  Just because the Times says this is about immigration doesn’t make it so.  Rather, the fact that the issue arises in the context of immigration, because it’s not like the president, who, according to Attorney General Holder, strongly believes that crack cocaine should be sentenced on a one to one basis with powdered cocaine, would be capable of using the same argument to accomplish that goal.  Continue reading →

The excuse was that the Baton Rouge Police Department takes complaints about its officers very seriously.  That, according to BRPD spokeswoman Mary Ann Godawa, is why the “department uses unenforceable laws to gain information.”

It began with an email to the mayor about a cop asleep on the job. Maybe.

The initial complaint was somewhat innocuous — a photo pulled from Facebook of an officer apparently pretending to be asleep in his patrol car while on duty.

Whatever this means, the next step was abundantly clear.

BRPD, according to department spokesman Cpl. Don Coppola, first responded to the sender with an email suggesting that if the potential whistle-blower was 1) a regular citizen, he or she could be charged with defamation or 2) if a BRPD cop, he could be in trouble for violating the chain of command.

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There was no announcement in the New York Times when SJ went live, but I’m no Bill Keller, former executive editor of The New York Times.  The Marshall Project, on the other hand, had yet to do anything when it proclaimed itself the savior of criminal justice in America. That was worthy of a New York Times announcement.

It went live with a two-part, more than 9,000 word, examination of how the one-year deadline under 28 U.S.C. §2254-5, Clinton’s compromise of the Great Writ in the Antiterrorism and Effective Death Penalty Act of 1996, created a morass of rules that served to wreak havoc with post-conviction challenges.  This is nothing new to those of us who are either familiar with criminal law or care about the issue.  The law ends with the provision:

The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

Will anyone read those 9,000 plus words who isn’t already well aware of the problem?  Who knows. But it doesn’t hurt to put this on the front burner, even if its old news.  And if it takes Neil Barsky’s promotional skills to do so, so what? Continue reading →

Adrien Chen offers a counterfactual history of Anonymous at The Nation, and twitted about it the day the group hacked the twitter account of the Ku Klux Klan, outing members in typical Anonymous fashion.  Chen’s point is that Anonymous may be today’s heroes, but that ignores its history.

To a large extent, Chen critiques a new book by McGill professor, and Anonymous supporter, Gabriella Coleman:

Her new book, Hacker, Hoaxer, Whistleblower, Spy: The Many Faces of Anonymous, is an artful advertisement for Anonymous, bolstered by endless spools of chat logs collected over six years embedded with Anonymous, during which she became essentially an honorary member.

As a narrow oral history, the book offers interesting anecdotes and insider information about a little-understood topic. But in arguing that Anonymous is an exciting new model of political action, Coleman exaggerates Anonymous’s achievements, downplays crucial failures, and is blind to the ways this supposedly novel way of organizing protest rests on bad old myths. Hacker, Hoaxer, Whistleblower, Spy helps us understand how well-meaning and intelligent people can fall for the Anonymous mystique, and exactly why that’s a bad thing.

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Among the many things that protest organizers in Ferguson, MO, are not anticipating is an indictment of Police Officer Darren Wilson.  Had he not been a cop, he would have been indicted by close of business the day after Michael Brown was killed. But he is a cop. And he wasn’t indicted.  And he won’t be. And everyone knows it.

While the rest of us have gotten back to our regular routine, protests continue in Ferguson without 24/7 cable TV news coverage.  On the 100th day, protesters conducted a “die in.” It was a dramatic representation, but most of us were too busy contemplating the utility of Kim Kardashian’s butt to pay attention. Life goes on.

But the announcement that the grand jury will “no true bill” Darren Wilson will be coming soon, and those who have not forsaken either the killing of Michael Brown or the opportunity to use his death as part of a broader protest of the dehumanization of young black men by police are preparing for it.

Several dozen people gathered in a dim church basement here on Thursday night to share plans for what to do if a grand jury chooses not to indict the white police officer who shot Michael Brown, an unarmed black youth, three months ago. Among their ideas was to descend in large numbers on the nearby county seat of Clayton at 7 a.m. on the day after the grand jury’s announcement to snarl business. Continue reading →

In one corner, Jed Rubenfeld, a professor of criminal law at Yale Law School, formerly of the United States Attorney’s office in the Southern District of New York.

In another corner, the New York Times, the paper of record, the Grey Lady herself.

And in between, every person who read this bizarre and absurdly irresponsible op-ed, entitled “Mishandling Rape.”  Almost every “fact” alleged in the piece is either false, baseless or grossly misleading.  At the same time, Rubenfeld’s “fixes” cover nearly every conceivable base from claiming rapists almost always get away with it while falsely accused rapists are wrongfully convicted.

OUR strategy for dealing with rape on college campuses has failed abysmally. Female students are raped in appalling numbers, and their rapists almost invariably go free. Forced by the federal government, colleges have now gotten into the business of conducting rape trials, but they are not competent to handle this job. They are simultaneously failing to punish rapists adequately and branding students sexual assailants when no sexual assault occurred.

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In posts at Hercules and the Umpire, Nebraska Senior Judge Richard Kopf has posed questions relating to the use of empirical proxies to ascertain the likelihood of recidivism.  One questions why poverty, of highly correlated with recidivism, shouldn’t be considered.

While some have seen his raising this question as a reflection of his disdain for the poor, and by extension, minorities because of their disproportionate representation among the poor, I see it as an effort on his part to find a better, more reliable, methodology to sentence than what is used now.  Judge Kopf is big on empiricism.

The current method, which might be best described as “gut sentencing,” may have its virtues in that it allows advocates to use whatever factors present themselves, and to make as persuasive an argument as possible that the sentencing factors of §3553(a) are best served by a particular sentence.  That said, it remains, without a doubt, a hit or miss proposition.

By raising the question of poverty as a proxy, which fails in my opinion for a variety of reasons ranging from “correlation not proving causation,” to its inadequacy as a proxy (say, a 74% reoffend correlation rate, statistically significant for empirical purposes, means 26% of defendants will be sentenced to a longer sentence than parsimony would allow, which is just plain wrong), to its placing the full weight of recidivism on the defendant.  “What,” you ask? Continue reading →