Remember Riff, Bernardo and Tony?  Immortalized by Leonard Bernstein for your viewing pleasure:

These were simpler times, when “gun” referred to a zip gun, but the weapon of choice was the switchblade and gravity knife.  Ethnic gangs of New York held rumbles, and these kids used knives that could easily be deployed with the flick of a wrist. And so, New York Penal Law §265.01(1) followed, “fixing” the hysteria of the day by criminalizing  the sorts of knives that rumbling gangs preferred: Continue reading →

And because there are too few opportunities for lawyers to put on their hotpants and strut down the boulevard giving their sexy come hither look, ICANN came up with two new “general top level domain” names for your marketing pleasure.

.attorney

.lawyer

Apparently, rumors that dot sleazebag would also become available were greatly exaggerated.   The new GTLD names became available yesterday, forcing guys like me to buy up our names so that someone else didn’t. Yes, I purchased scottgreenfield.lawyer and scottgreenfield.attorney. They forward to my old website, simplejustice.us, which makes them a total waste of money.  But the alternative was to have Jamison Koehler buy them for his, ahem, massage services.  The tummy rub problem loomed large.

For those lawyers who were slow on the uptake and missed the opportunity to buy urls for their name, this is a second chance at establishing an internet existence.  There’s nothing wrong with that.  These new GTLD names are regulated, meaning that you are supposed to actually be a lawyer to get to use dot lawyer or dot attorney urls.  Whether that proves accurate has yet to be seen.  It doesn’t seem too hard to game, and I would shocked if it turns out that the use of these urls is actually limited to lawyers. Continue reading →

In deconstructing the tête-à-tête between Judge Richard Kopf and Lawprof Orin Kerr the other day, I noted the “remarkable deference” shown police safety by the judge.  Judge Kopf reacted by offering a vignette involving the murder of Nebraska State Trooper George Amos in 1973.

This is not an excuse, this is not an explanation, this is not a denial and this is not an admission. Literary types might call it a vignette–a small illustration that fades into its background without a definite border.

The difference between due deference and undue deference is the accumulation of our experiences that give rise to our sensibilities.  Our lives are made up of thousands of such vignettes. They are neither right nor wrong. They simply are.

Whether we remember them explicitly or simply allow them to fade into our subconscious as a piece of the puzzle that forms the line we constantly draw between right and wrong, good and evil, isn’t important. They exist for each of us, and that’s enough. Continue reading →

For some time, there has been a strong push for the licensing of lawyers on the national level rather than by state jurisdictions.  In a flat world, where the internet makes a lawyer in Peoria as accessible as one down the block, it creates options for both lawyer and client that never before existed.  And from a more self-serving view, it enables lawyers who are admitted to the bar in one jurisdiction to take jobs or cases in other jurisdictions without having to retake the bar exam.

The New York Board of Law Examiners supports the replacement of the state bar exam with the Uniform Bar Exam.  The New York Court of Appeals has asked for comment from the bar.

The New York State Board of Law Examiners (SBLE) has recommended to the New York Court of Appeals that the current bar examination be replaced with the Uniform Bar Examination (UBE). To date, 14 other state jurisdictions have adopted the UBE, but New York would be a national leader as the first large state in terms of bar applicants to administer this test, having examined over 15,200 candidates in 2014.

Is it really significant that New York would be the “first large state” to go the UBE route?  Certainly, from the perspective of state bar examiners this would matter, as it’s a leap into the abyss from which there is no return.  So a bunch of small states are happy enough to take down the walls, but the real action is in the big cities, and they don’t get much bigger than the Big Apple. Continue reading →

One of the Popehats (it’s hard to tell whether it was Ken White or Patrick Beige) twitted a bit of hyperbole:

The twit referred to Mark Bennett’s First Amendment 101 post, clearing up the lawprof Danielle Citron’s effort to obfuscate the law in the hope to deceive non-lawyers into believing that her model revenge porn law wasn’t flagrantly unconstitutional.

Citron’s lieutenant in the battle, Mary Anne Franks took up arms against this twit by offering one of her own.

Obviously, Franks thought her twit witty and cutting.  I thought it rather infantile and goofy, particularly for someone with academic pretenses.  Particularly for someone so quick to attack others for not being as matronly as she demands.  So I went to retwit it.  I tried. Nothing. I tried again. Nothing. That’s weird, I thought to myself. And then I saw the notice at the top. Continue reading →

For those who practice law, human interaction too often falls into our skewed paradigm of comply now, grieve later.  We promote that notion because that’s how the law works.  What we too often fail to grasp is that it’s not a feature, but a bug, and we’re just too indoctrinated into what’s good for us that we fail to see how bad a solution it is for real people.

From the St. Louis Post-Dispatch, a ruling about our favorite suburb of St. Louis:

Police may not force peaceful, law-abiding protesters to keep moving, a federal judge said Monday, because it violates their constitutional rights.

U.S. District Judge Catherine Perry issued a preliminary injunction ordering police to stop using a crowd-control tactic that was intended to enforce curfew during the most volatile nights of the Ferguson protests.

Ain’t that great?  Remember when the nation’s eyes were on Ferguson, galvanized by the killing of Michael Brown and images of militarized police running roughshod over a handful of our most beloved constitutional amendments?  Remember how the cops shut it down by herding reporters into tiny First Amendment pens, arresting protesters who didn’t keep on trucking, firing into crowds that just didn’t do as they were told? Continue reading →

After learning of the Supreme Court’s grant of cert in Rodriguez v. United States, I posted some snarky, post-legal realism, observations about why this was less than good news.  The issue in Rodriguez is whether an extension of a traffic stop beyond the time needed to issue a citation in order to conduct a dog sniff, or pursue consent to search, or engage in a new line of questioning, is subject to a de minimus intrusion analysis.

Among the problems I foresaw was that the Supreme Court could hold that after the justification for the initial stop was completed, they were required to let the driver go without conducting any further intrusion or investigation. In other words, once the ticket was “processed” (a meaningless word I despise), the stop was over and the person free to leave immediately.  Any further action by the police was an unconstitutional extension of the seizure.

It struck me that this was the only viable holding.  The notion that they could engage in a new, suspicionless investigation, whether by questioning or dog sniff, was doctrinally empty. Once the justification for impairing a person’s right to be left alone ended, it ended. There was no authority for “just one more thing,” and without authority, the right to be left alone trumped everything. Continue reading →

The Supreme Court begins its new term today, and I’m scared.

The first argued case in the new Supreme Court term will be Heien v. North Carolina, a Fourth Amendment case about whether a reasonable mistake of law can create cause for a Fourth Amendment search or seizure. I think the defendant has the better argument that the answer is “no.”

Sure, easy for Orin Kerr to say, since it’s all just fodder for his next law review article if things go south. I’m not nearly as sanguine.  After all, if it doesn’t work out as well as Orin thinks it should, I’m one of the guys doing suppression hearings with a defendant’s hand clamped to my arm causing significant physical pain.

Orin, and Richard Re at PrawfsBlawg, do a good job of parsing the legal issues and, given the limited question upon which cert was granted, the remedies, and that’s all well and good.  But my concern isn’t doctrinal.  My concern is trendy. Continue reading →

Lawprof Danielle Citron has come out with a book, Hate Crimes in Cyberspace, which will certainly be widely read by a very narrow audience, excerpted by her at Slate.  The slice addresses her flavor of a model revenge porn law, fascinating in that it reflects a deep schism between Citron and baby lawprof Mary Anne Franks.

It comes as no surprise that Citron, who is usually the grown-up in the Cyber Civil Rights movement, parts ways with Franks.  Their joint law review article, Criminalizing Revenge Porn, revealed a critical schism between the two, where Citron would require “knowing” that the person depicted in an image did not consent to its disclosure, while Franks was satisfied with “knows or should have known,” which would impute knowledge and effectively shift the burden from the accuser to the accused.

And, unsurprisingly, no mention is made of how the newest flavor of the model law corrects some of the deep flaws of earlier models, which were vehemently denied despite their being obvious to anyone who wasn’t blinded by extreme advocacy and pride of authorship.  Remember Franks’ affirmative claim that Eugene Volokh approves of her model law that mysteriously vanished from the narrative because it wasn’t close to accurate? Good times. But if one doesn’t get all hung up on intellectual honesty or acknowledgements, it can be overlooked.  After all, this is about preventing bad law, not the lack of graciousness in academia. Continue reading →

My daughter’s iPhone 6 (not the 6S, because bendy) arrived, and it fell to me to make it work.  She’s an Apple aficionado, in contrast to my slavish devotion to DOS-based equipment.  Her prior phone was the iPhone 4S, because Siri.

I tried chatting with Siri some, and she’s really not very interesting or informative.  She was cute when I asked her for the answer to life, the universe and everything. She got it right.  Someone at Apple has a sense of humor.

But the deal for the iPhone 6 was too good to pass up. Aside from the absurd secondary charges that apply to anyone foolish enough to remain with Verizon, the phone was free. I couldn’t say no.

Even though the Verizon store couldn’t deliver on their television commercials for lack of phones without any foreseeable date of delivery, I was able to order it over the phone, and “recycle” the old one at the store. Of the many things that Verizon does in conflict with law and reason, this turned out to be relatively painless. Like suicide. Continue reading →