The argument for regulation is remarkably easy: there is an evil out there, a wrong, and if only a law or regulation was passed to control it, to constrain it, to prevent people from doing it, our world would be better.  It’s not that this is a bad argument, or that it’s necessarily wrong, but that it’s a facile argument.  Just like the latest slogan from the White House, “1 is 2 many,” it sounds great but for the flip side of how many people must be harmed to get that “1”?

At Overlawyered, Walter Olson posted a fascinating lesson in harsh reality:

After a long career as a member of the U.S. House of Representatives deeply unsympathetic to business concerns, he became a restaurant owner in Washington, D.C., and discovered a lot of things worth knowing about how the world works.

He was speaking of David Bonior, “former Michigan Democratic congressman, liberal pit bull, academic, antiwar firebrand and labor-union BFF.” Continue reading →

When Mary Anne Franks began her Jihad against revenge porn, it was pointed out that her baby had a huge problem. In the zeal to “get” the evil revenge porn men, her law would also criminalize the revelation of Anthony Wiener’s dangerous selfie, and that was not merely a 1st Amendment problem, but one that undermined important public concerns.

Franks adamantly denied her law suffered from significant 1st Amendment deficiencies.  But quietly, while no one was looking, the law morphed to include a “lawful public interest” exception for what’s now been renamed the “Sydney Leathers exception” (which changes the name from the male to the female, even though few people know or care who Sydney Leathers is).

No, Franks didn’t send me a thank you note for pointing out this glaring failure in her law. No, she doesn’t even acknowledge it existed or was brought to her attention by the misogynist enablers she hates so dearly. But that’s okay. Mary Anne isn’t exactly a gracious woman. and changing an incredibly poorly conceived law into just a horribly bad one is more important than a concession that she was wrong all along. Continue reading →

The adage is bad facts make bad law, but it usually applies to the underlying facts of the prosecution rather than the facts of what transpired during the course of a trial.  But the Second Circuit got a heaping pile of weird in United States v. Griffith.

On appeal . . ., Griffiths principally contends that he was denied his Sixth Amendment right to effective assistance of counsel when, after his attorney suffered two strokes following the close of evidence at trial, the District Court — instead of postponing trial indefinitely or granting a mistrial — appointed an attorney who had not witnessed the presentation of the evidence to deliver the defense summation.

What are the chances?  Not even an order from the trial judge, Alvin Hellerstein, could make Griffiths’ lawyer capable of giving summation. It’s unclear from the record whether such an order was issued, but the opinion makes clear that it didn’t work, leaving Griffiths in the odd position of having his attorney of choice, the one whose representation would otherwise be assured by the Sixth Amendment, standing there alone. Continue reading →

It came via a twit by FAMM’s Mike Riggs, retwitted by Radley Balko. and was sufficiently alluring to compel me to read:

Federal appeals court rules driving with your hands at 10 and 2 is suspicious behavior and thus grounds for a stop.

Well, that’s pretty friggin’ awful, and the link was to Huff Post Crime, so I clicked.  And what do you know, it was an article by Larry Bodine.  Larry Bodine?  Well, yeah, that Larry Bodine.  Failed lawyer turned failed marketeer, turned editor of failed Lexis-Nexis’ Lawyers.com, who now describes himself as “journalist lawyer,” providing “legal news for regular people.” Continue reading →

For those who have never had the pleasure, visiting a client in jail is not one of the more pleasant aspects of a criminal defense lawyer’s job.  Jails smell weird. The screws are not always the most accommodating of people. It wastes a huge amount of time, as a five-minute conversation takes hours to accomplish. And if you’re a woman, don’t go near the joint with an underwire bra or provocative clothing. Oh no.

As an aside, it’s not entirely pleasant for clients either.

So as signs were posted in attorney visiting rooms alerting us to the miraculous convenience of video chatting with inmates, who couldn’t be happy?  After all, most of us have computers, and most of our computers have cameras in them these days. And we could sit at our desks, or in Starbucks sipping a mocha frappucino as we felt deep empathy for our client’s eating a sandwich of American cheese and the finest institutional bologna available, and engage in meaningful, privileged communication.

Except Travis County jail. Continue reading →

The White House and Department of Education have gone full court press because, as announced through a star-studded video, we have a big problem.

Whether it is a big problem is hard to say, even though the video takes it as a given.  The just-released report of the White House task force to Protect Students From Sexual Assault begins by saying so, and simultaneously saying that they need to begin a study because, well, they actually have no clue whether it’s a big problem or not. Continue reading →

At Sentencing Law & Policy, Doug Berman received an email from someone who works in the federal courts.  While it’s not quite explained, it appears that Doug credits the email as being from someone who is indeed an “insider,” even though it’s posted under the pseudonym “Joe FedCourt.”

The entire email is definitely worthy of a read, maybe two, as it’s quite hard to follow, but it includes this:

As if it is their place to step in and question ANY Article III judge.  This only follows upon what we have seen this past year, with Defenders running to the Hill, talking to DOJ about clemency, and discussing indigent defense with the press.  The mechanics of how justice is administered in this country, in terms of the allocation of resources and the scope of jurisdiction, is exclusively the purview of the Judicial Conference of the United States and should be recognized as such.  The Conference could have gotten more money for judges’ chambers and court staff if it weren’t for people like the Defenders sucking up all the oxygen last summer and fall!  Not to mention magistrates undermining confidence in the Conference as people wonder who the hell is running the Judiciary!!!

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Oklahoma was to execute Clayton Lockett and Charles Warner last night. Lockett went first. Things didn’t quite go as planned for Lockett, as reflected in this series of twits (to read from the bottom up) posted by Gideon.

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The South Carolina Supreme Court held that LegalZoom is not engaged in the unauthorized practice of law.  Before anybody cheers too loudly, it’s not because it’s such a great thing, but rather that:

“LegalZoom’s software acts at the specific instruction of the customer and records the customer’s original information verbatim, exactly as it is provided by the customer,” Newman wrote in the report, adding that its “does not exercise any judgment or discretion, but operates automatically in the same fashion as a ‘mail merge’ program.”

So it’s a piece of paper with legalish sounding words on it which is neither better nor worse than the input of the person using it. What a shock.  So LegalZoom did what companies do when they have a victory in court. They issue a press release, as noted by 3 Geeks and a Law Blog. Continue reading →

A bit of not too high tech is growing increasingly pervasive these days. No, not the video camera on cellphones, but the Automated License Plate Reader.  It’s got its benefits, like the ability to capture massive quantities of data about plates and their locations. But our reliance on tech, on science, has its downside as well, which usually manifests in blind reliance that a machine can’t be wrong.

Via Tim Cushing at Techdirt:

The mistake prompting this guns-drawn approach of Molner’s video could have been made by anybody. The ALPR read a “7” as a “2” and returned a hit for a stolen vehicle. The hit also returned info for a stolen Oldsmobile, which clearly wasn’t what Molner was driving. But that could mean the plates were on the wrong vehicle, which is also an indication of Something Not Quite Right.

Continue reading →