No doubt you’re getting as tired as I am of reading about Mary Anne Franks. Unfortunately, she’s turning into the gift that keeps on giving, and sometimes in ways one would never imagine.  This isn’t another post about her reinterpretation of the First Amendment that would permit her to criminalize speech that makes her feel bad, so don’t get all huffy on me.

Both Mark Bennett and Ken White put on their coolest lawprof hats and tried their best to behave in a respectful fashion to address the failings in Franks’ model law and her facile spin on that part of the Constitution that stood in the way of her slaying dragons.  And while their efforts at lawprof-speak failed to compare with the real McCoy, they did a fine job of maintaining a respectful tone, much to my amusement. Continue reading →

There’s fantasy football. Why not fantasy crime?  According to the 9th Circuit’s opinion in United States v. Black, there’s nothing wrong with the idea.  The majority opinion, written by Judge Raymond Fisher,  is explained in the case summary:

The panel affirmed four defendants’ convictions and sentences for conspiracy to possess cocaine with intent to distribute and use of a firearm in furtherance of a drug trafficking offense, arising out of a reverse sting operation in which an ATF undercover agent recruited the defendants to carry out an armed robbery of a fictional cocaine stash house. Continue reading →

When the news of Polk County, Texas, Judge Elizabeth Coker got caught texting prosecutor Kaycee Jones broke, shock and outrage ensued.  But not from all quarters.  To the extent Mark Bennett was shocked, it was that she knew how to text.

The criminal-defense lawyers inter­viewed for the Chron­i­cle arti­cle call Coker’s actions “shock­ing” (Richard Bur­roughs) and “unusual” (Stan Schnei­der). I am not shocked, but I do find Coker’s con­duct unusual—not in its under­ly­ing con­tempt for the adver­sar­ial process, but only in its high-tech (and eas­ily doc­u­mented) execution.

The new news is that Coker has chosen to resign, and by resigning, terminate the investigation into her texting instructions to the prosecution during trial. Continue reading →

The question on the law school application wasn’t what some would call a good one:

In 2005, David Powers, a CPA and a summa cum laude college graduate with a  master’s degree, filled out an admissions application in which he was asked  whether he had ever been “charged with, pleaded guilty to, or been found guilty  of any crime, offense or violation” apart from minor traffic violations.

The problem is that “charged with, pleaded guilty to, or been found guilty  of any crime,” is phrased in the disjunctive.  Does that mean pick one, any one of which will do? Does that mean go with the one that carries the most substantive weight? One would think a law school could do a better job of asking a question. Continue reading →

While no one would accuse me of being delicate in my criticism of the First Amendment implications of Mary Anne Franks’ jihad against revenge porn, at no time did I suggest that it had anything to do with revenge porn itself being acceptable or any affinity toward those who engage in it or run such websites. While gender politics may be at the core of others, my concern is limited to creating new crimes and criminalizing the exercise of First Amendment rights.

Because of this, a comment to a new post by Thomas Jefferson Law School prof Kaimipono Wenger disturbed me:

Kaimipono D. Wenger – October 23, 2013

Admin note: Professor Franks has become a bit of a lightning rod of late for some bizarre, stalker-ish online attacks — sort of the blogosphere equivalent of McInnis’s frustratedly yelling “you’re a fucking idiot.”  Continue reading →

Jeff Gamso tackles the attack on 7th Circuit Judge Richard Posner by Charles Lane in the Washington Post. Judge Posner, who isn’t exactly shy about speaking off the bench, let loose that his decision in a controversial 2007 case involving Indiana’s voter ID law was wrong.

The ever-provocative federal appeals court  Judge Richard A. Posner  has made news again, this time by voicing second thoughts about his 2007 decision to uphold Indiana’s voter ID law.

The ruling was later affirmed by a 6 to 3 vote of the Supreme Court. But Posner says, in a new book, that the Indiana law was of “a type . . . now widely regarded as a means of voter suppression rather than of fraud prevention.” In recent interviews, the judge chalked up his mistake to the plaintiff’s lawyers’ failure to present “strong indications that requiring additional voter  identification would actually disenfranchise people entitled to vote.”  Continue reading →

Let’s say there is a judge in a court somewhere out there in flyover country. Let’s say it’s the Cleveland Municipal Court. Let’s call our judge Angela Stokes.  And let’s say that for the 18 years she’s been on the bench, everybody, including her court staff, thought she was, well, nuts.

And let’s say that Supreme Court of Ohio’s Board of Commissioners on Grievances and Discipline has issued an opinion requiring our Judge Stokes to undergo psychiatric evaluation because they conclude in a 49 page report that she may be “suffering from a mental illness that substantially impairs her ability to perform her duties as a judicial officer.”

What do you do with such a judge? Continue reading →

At Techdirt, Mike Masnick brings the sad news that CryptoSeal, another “secure” service has shut its virtual doors.

CryptoSeal Privacy Consumer VPN service terminated with immediate effect

With immediate effect as of this notice, CryptoSeal Privacy, our consumer VPN service, is terminated. All cryptographic keys used in the operation of the service have been zerofilled, and while no logs were produced (by design) during operation of the service, all records created incidental to the operation of the service have been deleted to the best of our ability.

While details remain unclear, Continue reading →

When Adam Liptak’s column appeared in the New York Times, the question wasn’t whether he was right or wrong, unduly harsh or overly superficial.  The question would be how many scholars would scream in agony at another knife in their heart.

 “Would you want The New England Journal of Medicine to be edited by medical students?” asked Richard A. Wise, who teaches psychology at the University of North Dakota.

Of course not. Then why are law reviews, the primary repositories of legal scholarship, edited by law students?

The pain. The pain. Continue reading →

While legal scholars focus on creating new crimes to combat revenge porn, police officers in Puyallup, Washington may be busy making some of their own from women arrested for drunk driving.  Via Gawker:

Almost two dozen women have come forward with complaints about being forced to strip naked in a Washington police station after being arrested for DUI, and then videotaped by police officers.

The women were brought to a holding cell in Puyallup, Washington, where they were told to strip naked before being given jail clothes. Unbeknownst to them, their jailers were watching them strip through a video camera. Continue reading →