The reply brief is in on behalf of Ladar Levison’s Lavabit, and it appears that Marcia Hofman, et al., has worked hard to salvage her strong and critical arguments from the government’s response of waiver.  Did she do it?  Is it enough to overcome the neglect below?

The brief relies on the Supreme Court opinion in Yee v. Escondido, a 1992 takings clause case where some weighty constitutional arguments were raised for the first time before the California Supreme Court, and then again before the big bench.

In this Court, petitioners attempt to challenge the  ordinance on two additional grounds:  They argue that it  constitutes a denial of substantive due process and a  regulatory taking.  Neither of these claims is properly  before us. Continue reading →

It seemed an interesting gesture for Wal-Mart to announce by television commercial that it would give any returning honorably discharged veteran a job. Given my peculiar view of good deeds, that an act isn’t truly charitable if there is a self-promotion component to it, Wal-Mart’s commercial was banal pandering. Still, it was a better advertisement than “come to Wal-Mart and meet interesting people.”

But a post by Turley’s permanent weekend guest-blogger, Mike Spindell, put a different light on the offer.  While I don’t think I’ve ever been in a Wal-Mart, and frankly have neither a clue nor interest in finding out whether there is one anywhere near me to visit, I have enjoyed images of Wal-Mart shoppers from time to time, which makes me feel as if I have a connection to it. From a distance. Continue reading →

Not that anyone who isn’t a former employee of the Long Island Rail Road feels the slightest sympathy, mostly because everybody hates the LIRR and is so innately biased against its people that allegations of fraud are par for the course, but their handling by the Railroad Retirement Board has reached a new depth of bizarre.

After unilaterally terminating the disability payments of hundreds of retirees because a doctor who was involved in their application, Peter Ajemian, copped a plea, which only makes the slightest bit of sense to someone deeply inclined to hate the LIRR in the first place and otherwise not big on anything approaching logic, the RRB doubled down when another doc, Peter Lesniewski, was convicted for fraud.  So what if the RRB’s physicians examined every applicant and confirmed their disability. This is no time for facts, when there are heads to roll. Continue reading →

One of the earliest posts at SJ was about the case of Martin Heidgen*, a 25-year-old who, drunk and driving the wrong way on the Meadowbrook Parkway, caused the decapitation of a beautiful 7-year-old flower girl, Katie Flynn, on her way home from a wedding, along with the driver of the wedding limo, Stanley Rabinowitz. It was a horrible death, the sort that raised bile in anyone’s throat.

That post was written March 1, 2007. Yesterday, more than six years later, the New York Court of Appeals ruled on the case.  In the interim, similar cases came along, suffering from the same legal flaws, such as Franklyn McPherson, another drunken kid who killed.

Other things happened in the interim as well. The Legislature passed “Katie’s Law,” creating the crime of aggravated vehicular homicide.  And the Court of Appeals decided People v. Valencia, Continue reading →

The first I learned of this was a few years ago from Mike at Crime & Federalism, though I can’t find the link now (Here it is, thanks Mike).  Now, it’s all over the news. The knockout game.

I imagine it’s some variant on stupid, powerless youths attempting to substitute brute force and cowardice for their feelings of worthlessness.  Coming from a criminal defense lawyer, and some will most assuredly need a criminal defense lawyer if they aren’t killed before reaching that point, please know this:

You will get no sympathy. You will get no admiration. This is a dehumanizing blight, and it will come back to haunt not only those who do it, but as it appears to be a game played (at least for now) by young black men, your age and your race.  A lot of people worked very hard to try to end racism, and many died for it. It was not so you could devolve into animals for some sick amusement and pretend machismo.

As much as I hate to put it this way, no one will weep if you do this and terrible harm comes to you.  This is about as sick as it gets. Your moment of glory doesn’t make you tough or manly, but a pimple in need of popping, and there will be no shortage of people willing to do so.

And for any others who think this is funny, your encouragement of this disgrace will come back to haunt you as well. Any fool can sucker punch someone.  It proves your haters right. That is the only thing this accomplishes. Don’t do it. Don’t tolerate anyone else doing it.

Occam’s Razor is a principle of logic that says the simplest solution that accounts for all known facts is usually correct.  It’s neither absolute nor necessarily easy to figure out what is fact or assumption, given many people’s tendency to replace reality with the crutch of “common sense,” but this isn’t about the joys of lex parsimoniae.

Whether it’s a picture or the story that goes with it, or a combination thereof, when what purports to be “known facts” are so inherently contradictory or nonsensical that Occam’s Razor can’t be applied, there is a problem.  That’s what comes of Tim Cushing’s post at Techdirt, and it’s very ugly: Continue reading →

Another life rule: Never pass up an opportunity to quote George Santayana.

Those who do not remember the past are condemned to repeat it.

The legal bubble burst in 2007, when talk of New York Biglaw to $190,000 changed to will Biglaw survive? Since then, things haven’t recovered back to 2007 levels, so the Future of Reinvent the New Normal of Law crowd have indulged in a laundry list of changes supported by empty rhetoric, prognostications of flying cars with ABS (the brakes, not the Alternative Business Structures used to conceal the unlawful practice of law), and people with no institutional memory deciding that it all makes sense to them.

At the Wall Street Journal Law Blog, however, Jacob Gershman was struck by the analogy between what happened with dentists and what has been happening with lawyers over the past six years. Continue reading →

Far be it for some northerner to question the choices made by the fine people who hum Sweet Home, Alabama.  If you people want to prove Neil Young right, knock yourselves out.  But Yankee-entitlement allows me to get down on my fellow New Yorker, Nino Scalia, and so I shall.

What the hell is wrong with you, Nino?

The Supreme Court of the United States denied cert in Woodward v. Alabama, where a jury, by 8-4 vote, decided not to kill Mario Woodward for murdering police officer Keith Houts.  In most places, that would be the end of it. But not Alabama. Continue reading →

When the Supremes decided Padilla v. Kentucky, that non-citizen defendants were entitled to be advised of the immigration consequences of a plea before deciding to take it, they answered the pressing question of whose job it was to do so with the anticipated “dump it on the defense lawyer.”  After all, it was a burden, and who better to burden?

In a trio of cases, the New York Court of Appeals has held that immigration consequences are no longer “collateral” to a plea (which apparently suggests that somebody in Albany finally put away the pocket part that includes Padilla), but rather integral to the decision to cop out.

Our resolution of this issue is grounded in the right to due process of law, the bedrock of our constitutional order. That guarantee, most plain in its defense of liberty yet complex in application, requires us to strike a careful balance between the freedom of the individual and the orderly administration of government. Continue reading →

What do the following people have in common?

Retired Federal Judges

Robert J. Cindrich was appointed to the federal bench in 1994 and served as a United States District Court Judge for the Western District of Pennsylvania for ten years.

David H. Coar was appointed to the federal bench in 1994 and served as a United States District Court Judge for the Northern District of Illinois for sixteen years.

William Royal Furgeson, Jr. was appointed to the federal bench in 1994 and served as a United States District Court Judge for Western District of Texas and the Northern District of Texas for nineteen years. Continue reading →