A good, old fashion debate has broken out in the blawgosphere. Lord, I miss the days when we debated all the time, but I’ll take what I can get from as much of the blawgosphere as remains. It started with Jamie Koehler’s post about a young lawyer who engaged in an “ugly” argument with a judge.

Last week I watched from the gallery as a young attorney got into an ugly argument with the judge. Who knows, the lawyer might have been right when it came to the substance. But everything else about it was wrong. You do not talk over the judge. And you do not pick fights that you are going to lose, particularly when you have your client standing there right next to you. Judges are people too, and they can have long memories. Watching the judge’s body language the next day when dealing with the same lawyer on a different matter confirmed for me everything I needed to know.

As a general rule, this was fine. Gratuitous fighting with the guy who makes decisions rarely ends well. For the most part, it’s an indulgence, the lawyer venting his frustration over the judge not agreeing with him. There’s a lot of that around these days with young lawyers, who can’t understand why everyone doesn’t appreciate their brilliance and bend to their will.

But then Jeff Gamso jumped in: Continue reading →

When the DEA created a phony Facebook profile for its snitch, Sondra Prince, there were howls of protest.  Sure, it was wrong to impersonate someone without their knowledge, but it’s both hard and, frankly, more than a bit disingenuous, to get too bent out of shape about the government taking liberties with a cooperator.  That’s what it means to be a cooperator, you Pollyannas.

But when the Seattle Times learned that the government secretly used its identity as part of a scheme to plant spyware on a suspect’s computer, it was furious.

Seven years ago, the FBI used a kind of spyware known as a CIPAV to track down and arrest a 15-year-old hacker who was sending bomb threats to a high school near Olympia. Old news for privacy watchdogs. But today, ACLU analyst Christopher Soghoian trawled through an arcane set of the bureau’s records and came across something startling: in order to get the suspect’s computer infected with the spyware, the documents suggest that the FBI sent a message to him that masqueraded as an e-mail from The Seattle Times. Continue reading →

No one has ever made a movie about this “family,” but make no mistake about it. It exists, and there are pictures to prove it.

These are the prosecutors of the United States Attorney’s Office for the Southern District of New York. Continue reading →

Much as I admire Wally Olson’s standing guard against the stupid and venal in law, his effort to demonstrate the inconsistency of the American Rule, that each party pays its own legal fees, through the case of Alabama prisoner, Anthony Warren, is a poor choice.  Warren isn’t exactly the most sympathetic of “victims”:

Warren is serving a 20-year sentence for attempted murder stemming from his running over a police officer during the chase, in which he also hit a school bus and a patrol car before crashing and being ejected from his vehicle.

And for this he gets paid?

The incident gained public attention with the release of a 2008 video of police officers punching and kicking Anthony Warren as he lay on the ground after leading them on a roughly 20-minute high-speed chase. Continue reading →

There were three options for how nurse Kaci Hickox would be received when she flew into Newark, New Jersey, Airport on her way back from West Africa after treating Ebola patients:

1. There would be a party for her for being so brave and self-sacrificing to help those in terrible need at grave personal risk.

2. She would get off the plane, go home, check the mail and telephone messages, maybe order some take-out, and get some well-deserved rest.

3.  She would subject to hostile interrogation, seized and incarcerated, because Ebola.

Via Josh Blackman, the ACLU has taken up Kaci Hickox’ cause, to free her from the quarantine imposed by New Jersey Gov. Chris Christie lest Ebola spread across the Garden State, quieting oil refineries and chemical dumps.  Hickox is asymptomatic, which distinguishes her from the old school quarantines that were a staple of American border entry the last couple of centuries. Continue reading →

As I’ve been critical in the past of the New York Times’ Ethicist, Chuck Klosterman, when he sticks his nose into legal issues without having a clue about the law, it’s only fair I write something nice when he gets it right.  Today, he got it right.

The question posed wasn’t an unusual one, at least for people who spend their days trying to help people who wouldn’t give them a glass of water if they were dying of thirst otherwise.

Recently, I needed critical legal advice to save a friend’s life. I was able to get the information, along with a generous offer to provide legal help, from a nonprofit organization. I am incredibly grateful for this advice, which indeed may have saved my friend’s life. But I believe that this organization causes harm to individuals and to society as a whole. In fact, I have vocally opposed them for decades. Was I wrong to seek help from them? NAME WITHHELD, NEW YORK

Sound familiar?  These are our clients.  Hate crime. Love cops. All criminals should rot in hell.  Until they need a hand, when the world shifts on its axis because now it’s their turn.  So far, nothing new. Continue reading →

An aspect of the push for new laws criminalizing intimate conduct that hasn’t been given much attention is the underlying assumption that if such laws are enacted, they will not only be enforced, but they will be enforced by law enforcement with a level of trust and respect for the delicate subject matter and the sensibilities of the victims.

Good luck with that. From lovely Contra Costa, California:

The California Highway Patrol officer accused of stealing nude photos from a DUI suspect’s phone told investigators that he and his fellow officers have been trading such images for years, in a practice that stretches from its Los Angeles office to his own Dublin station, according to court documents obtained by this newspaper Friday.

CHP Officer Sean Harrington, 35, of Martinez, also confessed to stealing explicit photos from the cellphone of a second Contra Costa County DUI suspect in August and forwarding those images to at least two CHP colleagues. The five-year CHP veteran called it a “game” among officers, according to an Oct. 14 search warrant affidavit.

Not to paint cops with too broad a brush, but, ahem, some of them aren’t a whole lot better than those “frat boys” or MRAs you think so poorly of.  In fact, some are pretty awful when it comes to respecting the physical integrity of female suspects, trading off sex acts for arrest because they can.  Continue reading →

Sitting next to a lovely young lady at dinner the other night, she turned to me, eyes bright with enthusiasm, to tell me what she was passionate about.  She then asked me what I was passionate about.  I resisted my typical snarky reply, “I’m passionate about never saying I’m passionate,” and deflected the question.  After all, it was a nice dinner and not a lecture, so there was nothing to be gained by being disagreeable.

The problem isn’t so much that I am a “passion” hater, but that people who are “passionate” become so deeply tied to their passion that it blinds them.  They found the light, at least their light, and love it ever so much that they see the world through only passionate eyes. That also means they can’t see the world any other way, because passion.

This was driven home in the reaction to a post here yesterday, which was noted by Judge Kopf at Hercules and the Umpire, and a coattail ride by lawprof Will Baude at Volokh Conspiracy.  All the posts addressed a Slate article by Dahlia Lithwick, but the comments and approach were so starkly different that one would never know they were addressing the same piece.  One side, supportive of Lithwick’s cause, either ignored what she wrote or excused it. The other, unsupportive, not so much. Both were guided by passion, seeing only what confirmed their bias. Continue reading →

Remember the good old days when the demand to criminalize revenge porn was all about the terrible harm being done to women?  It wasn’t just a matter of embarrassment, when private naked images went public, but an attack on gender?  Sure you do. But what happens when reality doesn’t match the narrative?

Revenge porn is widely portrayed as an act committed by men against women. But in a new twist, women are no longer just the victims of those who post explicit photos of someone online without that person’s consent.

They are also the perpetrators of revenge porn.

As one of the foremost legal advocates of the victims of revenge porn, Marc Randazza, responded: Continue reading →

Dahlia Lithwick managed to overcome her Canadian roots, graduate Stanford Law and become a respected writer about the Supreme Court and American law at Slate and other, more credible, media outlets.  So what was she thinking when she blew her cred in this opening paragraph?

The Supreme Court of the John Roberts era gets one thing very right: It’s one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution–seeker whose rights and privileges will not be treated by the court with the utmost reverence and solicitude.

Some very harsh descriptions of the cases, the sort designed to inflame the ignorant who think nothing of the underlying doctrine and instead focus only on the hatred of the content, from someone who passive-aggressively agrees with the rulings. Continue reading →