Now that the assumed nonsense that electronic toys will crash planes and bring death raining down on the people of Kansas is over, the next big debate will be whether people should be allowed to make calls on their cellphone. There is a safety issue, of course, because people who don’t want to listen to someone talking loudly about their cat may try to kill.

In fairness, I’m not a telephone talker. I use the phone when I must, but feel no need to chat to kill the quiet.  And I am not a fan of cellphones. I never give out my number and only turn it on if I need to make a call out. I do not take calls on my cellphone. Did I mention I don’t like cellphones?  So take what follows with a grain of salt, knowing my bias.

At Volokh Conspiracy, Ilya Somin writes about John McGinnis’ libertarian position on cellphones: Continue reading →

A kindred spirit in a 29-year-old?  Well, maybe, though Evgeny Morozov gets far more traction than I ever will. Still, the immediate sense of camaraderie was obvious.  From the latest cover story at the Columbia Journalism Review:

To say that Morozov has gone out of his way to irritate powerful and influential people in the tech world doesn’t quite capture it. Doing so is his primary occupation. In the Morozovian worldview, New York University professor and social-media theorist Clay Shirky is a “consultant-cum-intellectual”; Google’s mission is to “monetize all of the world’s information and make it universally inaccessible and profitable”; and Tim O’Reilly, the Silicon Valley publisher and venture capitalist who coined “Web 2.0,” is an Orwellian “meme hustler” and the main culprit behind “the enduring emptiness of our technology debates.” To millions of viewers, TED talks are inspirational speeches about “ideas worth spreading” in science and technology. To Morozov they are a “sinister” hyping of “ideas no footnotes can support.”

And, Continue reading →

When some of the staunchest defenders of legal tech go on a rant, it tends to provide an interesting look beneath the surface of the future of law crowd.  The suspension of Fred Barakat from the practice of law in Delaware gave rise to such a rant, and certainly lit up the tech crowd, starting with Niki Black:

At issue was whether Mr. Barakat, a Delaware lawyer, had engaged in a number of ethical violations, including whether he had violated the bona fide office rule. It was alleged that Barakat had access to office space in Wilmington such that he could rent a conference room, when needed. Additionally, employees of the landlord collected his mail and directed any visitors to the fourth floor where a receptionist was stationed who greeted visitors.

In response to the allegations, Barakat claimed “that advances in technology enabled him to handle client matters effectively, despite his lack of presence in the Wilmington office.” Continue reading →

There is an ugly side to the saying, you may beat the rap but you won’t beat the ride. Actually, everything about it is ugly, but one that happens with some rarity is that the winning defendant, the guy acquitted after trial or whose case is dismissed after suffering the full panoply of indignities associated with the best legal system ever, can’t let go.

Some people are changed by the ride.  This may be because they’ve become enlightened to a system that destroys at its best, and feel compelled to fix it. Others just can’t walk away from the indignity suffered.  For the most part, this doesn’t work well. It gnaws at people’s souls, and their grandiose expectations of change fall decidedly short.

But what if the guy is a billionaire? Continue reading →

A constant in criminal defense is the fight to convince someone, whether government agent, prosecutor or judge, that their perspective of what things are and how things should be is not universal.  Whether it’s explaining why a Chinese immigrant would eschew a bank account for keeping their savings under the mattress, or why a street kid in Harlem doesn’t see a future for himself at Harvard.

We are all limited by our scope of knowledge and experience, and the more limited, the narrower the understanding and more likely to find things outside our scope of knowledge to be wrong, dangerous, nefarious.  It results in innocent conduct being deemed criminally intended. It results in destroying the things with which we’re unfamiliar, and thus afraid. Continue reading →

The question of what, if anything, should be required of the government before an agent can rifle through the contents of your computer or, worse still, seize it for mirror imaging with a promise that it may be returned to you someday by someone you will never know, at the border has been a difficult one.  It’s not that it has been entirely without historic precedent, as border agents could look through your briefcase at the papers within to make sure you weren’t carrying the Zimmerman telegram, but it’s not like they read it all page by page.

But computers are different. Computers contain our secret, private lives. Some of it may well be of great interest to the government, though most of it is none of their business under any circumstances, and more about our own personal privacy than any wrongdoing. Computers bring a level of intrusiveness inconceivable before their existence.  And so, their seizure and inspection raises issues that never before existed. Continue reading →

As every regular reader knows, the past year has given the blawgosphere an actual, honest-to-god, Article III judge with whom to engage. It’s been, at least to me, a somewhat tricky, somewhat awkward, somewhat illuminating experience, and one that I found enormously valuable. And now it’s done.

On the first of January, 2014, District of Nebraska Senior Judge Richard G. Kopf retired his blawg, Hercules and the Umpire, from active duty.

In short, Hercules and the umpire has exceeded my wildest expectations. And so–it is time to kill it. In this forum, I have written all that I want to write and then some. It is that simple. My decision is final. Continue reading →

The past year has seen the blawgosphere continue down its path toward meaninglessness as more lawyers have jumped in only to pump and dump their wares.  But while the volume of emptiness (and truly awful content) has increased, there remains hope in a handful of great new blawgers, and the efforts of those serious about criminal law.  The numbers may be down, but the value of the content has been stupendous.

This past year brought us another pseudonymous PD, Norm de Guerre at Chasing Truth, Catching Hell, who had two exceptional posts nominated this year. While Norm has slowed down since his nomination to the ABA Beauty Pageant, he’s brought great insight to the blawgosphere in his distinctly left coast style.  Appellate Squawk, another PD from the civilized side of the country, continues to go strong, with biting commentary fused with humor. Continue reading →

Whether you’re a fan of Judge Richard Leon’s or Judge William Pauley’s opinion on the [un]constitutionality of the NSA’s spying on every American’s telephony metadata, the Supreme Court opinion in Smith v. Maryland stood at the crux of the ruling.  The majority opinion in the 1979 case was written by Justice Harry Blackmun. Or at least, signed off by him.

Via baby lawprof, Josh Blackman, comes a most extraordinary bit of inside info: Continue reading →

I was on a roll yesterday, and suddenly realized that the memo I was working on was over 100 pages.  Lest anyone be overly impressed by length, that’s much too long and only meant that I had a massive amount of editing to do. No judge has the time to read, no less digest, a memo of that length. But I was on a roll.

There can be no question but that the ability to communicate in writing is a critical and fundamental tool of the law.  But then, not enough lawyers give much thought to the mechanics of communication in general and writing in particular.  Despite assumptions to the contrary, my writing here isn’t the same as my writing in my practice. This is for fun. In my practice, I write for other people’s lives. I write to persuade a judge to see and agree with my point. There is no room for the indulgence shown here. Continue reading →