As  Ken White and Adam Steinbaugh have chronicled, websites based on the business model of posting naked, nonconsensual photos of people, particularly with sufficient personal identifying information so that sick people can find them, is one of the most disgusting and offensive things the internet has borne.  And it seems there is no shortage of sick people on the internet.

These sites, delightfully called “revenge porn,” attract a crowd for whom few of us have any sympathy. Whether owner, poster or viewer, there very existence is a commentary on humanity. And so a law to prohibit their existence, the harm they do to the people whose image is posted for all the world to see for a few dollars for the website owner, who can charge them to remove the taint, the momentary hatred of a spurned lover, the diseased interest of some loser whose sex life exists only on a computer screen, probably wouldn’t upset too many people.

And yet, the effort in Florida to create a felony raises issues.   Eugene Volokh raises the question.

A Florida bill would ban “knowingly transmit[ting] or post[ing]” to any web site, a “photograph or video that depicts nudity of another person” coupled with “personal identification information” of that other person, “for the purpose of harassing the depicted person or causing others to harass the depicted person.” “Harass” is defined as “to engage in conduct directed at a specific person that is intended to cause substantial emotional distress to such person and serves no legitimate purpose.”

But I do think that a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication of such pictures, would likely be upheld by the courts. While I don’t think judges and juries should be able to decide, on a case-by-case basis, which statements about a person aren’t of “legitimate public concern” and can therefore be banned, I think courts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value.

The trial of Floyd v. City of New York, the stop and frisk case, continues in the Southern District before Judge Shira Scheindlin with the appearance of a star, the just-retired Chief of Department, Joseph Esposito.  It wasn’t that he was necessarily a star witness, but to be a three-star Chief in a department that rivals the armies of medium sized nations is to be a star. It shines less bright, though, under Police Commissioner Ray Kelly, who doesn’t like Espo too much and has  marginalized him from the real power of ruling the department.

Still, as a witness at trial, in a courtroom with everyone’s eyes on him, it was Espo’s moment to shine again, to show the world why he was worthy of commanding the troops, controlling tens of thousands of weapons pointed at the heart of New Yorkers.  This was Espo’s moment to seize the stage, explain in small words why the NYPD was saving the City from rape and pillage, and emerge the hero.

Though the question asked was narrow and direct, no mere lawyer could control Espo. Via the New York Times :

“That increase is all on your watch?” a civil rights lawyer, Jonathan C. Moore, asked, referring to the rise in police stops, which spiked to 533,042 in 2012, from 97,837 in 2002.

“Yes, it is,” Mr. Esposito responded, “as is the 40 percent decrease in crime during my time.”

Zing.  Except unlike the deference shown a police witness in most criminal trials, Judge Scheindlin wasn’t about to let her witness give the same speech that wowed them at the old age home.

But by then, the judge, Shira A. Scheindlin, had heard enough, saying that Mr. Esposito’s answer was “turning into a narrative, otherwise known as a speech, and I am not here for that purpose.”

Smack. The questions of Espo focused on whether anybody at 1 Police Plaza gave any thought to the hundreds of thousands of black and Hispanic youth who were stopped, searched and released after being subjected to ordinary humiliation.

“Have you discussed with Commissioner Kelly the toll that the policies that are being challenged here may be having on a generation of black and Hispanic youth?” Mr. Moore said.

Mr. Esposito responded, “I discussed the issue of stop, question, frisk with Commissioner Kelly and those issues may have come up.”

But details were not forthcoming.

After a decade, half a generation growing up with the understanding that walking outside was forfeiting one’s right to be left alone, had no one in this middling army given any thought to whether something was amiss?  Espo had an answer, a few good sergeants.

One line of defense, Mr. Esposito noted, was the sergeants who were on the streets checking up on their officers. “Our sergeants are the best in the nation, the best in the world, actually,” he said.

After the cheers from the sergeants union died down, and the rest of the room was unmoved by Espo’s otherwise convincing homage to stripes, he got down to the real proof that the New York City Police Department could do no wrong.

Mr. Esposito also put much stock in the paperwork that officers must fill out after each street stop. That form includes numerous check boxes, each describing behavior that might lead to a stop, like “furtive movements” or “actions indicative of casing.”

Mr. Esposito insisted that a supervisor could conclude that a stop was legal based on reviewing that form alone.

“If it’s filled out properly, it gives you reasonable suspicion. And if you have reasonable suspicion established, then you do not have racial profiling,” Mr. Esposito said. “It’s as simple as that.”

A checklist. The holy grail of grocery clerks. Check off a few boxes and, bingo, reasonable suspicion is established.  “It’s as simple as that.”

While the Floyd trial has offered more insight into the working and thinking of the NYPD than perhaps any before it, even the scandals like the Dirty 30 or the Knapp Commission, this may be the testimony that provides the deepest understanding of the failure to grasp what’s at risk when cops roam the street under the leadership of a guy like Espo. 

With his three stars, he was a “near-mythic figure” in the NYPD.  Yet on the witness stand, he revealed himself to be an errand boy for grocery store clerks, who thought a checklist was real.  “It’s as simple as that.”  They so adore checklists.  Check the right boxes and all is well with the world.  There is no better proof than a checklist.

What Espo could not have anticipated was that the judge, the same one who wasn’t interested in his elevator pitch and the snappy answers developed from years of being the honored guest at dinners thrown by community groups in Queens who appreciated how the police kept those nasty foreigners from ruining their neighborhoods, wasn’t as enamored with checklists.

But Judge Scheindlin appeared skeptical that the paperwork proved anything.

“Any officer can check off ‘high-crime area’ and ‘furtive movements,’ ”  Judge Scheindlin said, referring to two check-box categories on the stop-and-frisk form.  “You really don’t know much about the stop, looking at the form, do you?”

What happened next isn’t said, but my guess is that Espo sat there, dazed and confused.  As he finally shook off this unfamiliar treatment at the hand of someone who was supposed to understand that he was a Super Chief, a witness to be shown respect, if not awe, I suspect his mind wandered to the checklist he completed when he retired with a pension that would choke a horse a mere two weeks before.  And he smiled, knowing that he was protected by his checklists.

It’s bad enough when a conspirator finds out that his pals have pals who are dealing in hundred kilo quantities of drugs, especially when the defendant is struggling to pay the rent and feed the kids.

But when it turns out that there were never any drugs to begin with, and it was all a reverse sting create by the government to fill a bed at Club Fed for the next 15 years, that’s brutal. But it can get worse.

The 9th Circuit considered this in United States v. Hernandez, via the  California Appellate Report by San Diego Law School prof Shaun Martin. In a variant on the typical reverse sting, an attempt to buy drugs that don’t exist from federal agents pretending to be dealers, this case involved a conspiracy to steal nonexistent drugs from a stash house. While it makes greater sense to attribute quantity of nonexistent drugs to a buyer, does that work when the scheme is to rip off a dealer?

In a unanimous decision by Judge Alfred Goodwin, joined by EDNY Senior Judge Edward Korman sitting by designation on the left coast, the court responds that it has to take a “hard look.”

But what works for fake drug sales doesn’t really work for fake drug thefts.  With a fake drug sale, it is possible for a defendant to prove the he didn’t really have the capacity to buy (or sell) the amount the government allegedly entrapped him into buying.  We can’t, however, say the same thing for fake drug thefts.  As Judge Goodwin rightly explains, “once a thief gains access to the drugs, he or she is just as capable of carrying off one kilogram as ten.”  (Put to one side that carrying fifty kilos might be in a somewhat different category, and that for less muscular criminals, even carrying ten kilos might be a stretch.  Remember:  Lift with your legs, not your back.)

Who says lawprofs can’t be a bit snarky?  Bucking the trend, Martin’s discussion of 9th Circuit decisions is both interesting, funny and incisive, and no doubt makes all the other lawprofs hate him, even though it’s precisely the sort of analysis that practicing lawyers would hope that a lawprof offers.

The set up was that a fed pretending to be a courier let the Hernandez group know that the stash house held 20 to 25 kilos of cocaine, and the group decided to steal it.  Hernandez was very much part of the conspiracy, but expected to be paid for his role. He was in it for the cash, not the drugs, and the amount of drugs wasn’t relevant to his participation.

But the Sentencing Guidelines don’t see it that way, and Hernandez was sentenced based upon the pretend weight of the non-existent drugs he was conspiracy to steal. And so the court held that this scenario demanded a “hard look.”

Here’s the problem:  What’s true for Hernandez is almost certainly true for everyone else as well.  A result that makes the “hard look” the Ninth Circuit creates essentially meaningless.  Judge Goodwin says that Hernandez had the intent to steal the drugs because he joined the plan.  That’s equally true for pretty much everyone who joins a plan, right?  If the undercover or C.I. says “We’re going to steal 100 kilos,” and if the defendant agrees, boom.  Intent.  True for Hernandez.  True for Everyone.

To put it another way, the agent could come up with any amount he thinks he can sell, and that becomes the baseline for everybody, regardless of whether they’re in it for the drugs or driving the getaway car for $100 cash.

So, in the end, we’ve got a facially “hard look” test that, in reality, is going to be satisfied over 99% of the time.

Whether the problem here is rooted in the law of conspiracy or that sentencing has become a matter of drug weight, whether real or imagined, or both, the disparity between the conduct and its inherent culpability and the crushing punishment of 15 years for conspiracy to steal drugs that don’t exist it impossible to ignore. 

Defendant’s culpability is largely the same whether he agrees to steal 5 kilos or 50 kilos of fictional drugs; however, the sentencing guidelines may nonetheless treat these offenses as deserving of radically different punishments, including (but not limited to) cases involving mandatory minimums.  The ability of the government to easily manipulate the quantity of (fictional) drugs purportedly to be stolen also creates, as Judge Goodwin notes, the potential for abuse.

So the 9th Circuit plans to take a very hard look at this before affirming the conviction and sentence. The only real thing about this case is the time Hernandez will spend in prison.

H/T Dr. Sigmund Droid

As regular readers know, I am neither a fan of the extension of law by analogy when it comes to technology nor of the harsh and absurdly confused application of the Computer Fraud and Abuse Act, a law crafted long before Congress had a clue what the future of computers would bring. Ironically,  the push to reform and rationalize the law has so utterly lost its purpose as to fail to fix its faults, but make it harsher in the process. Another excellent example of “be careful what you ask for, because you just might get it.”

With this in the background, the case of Andrew “Weev” Auernheimer is coming before the Third Circuit.   Orin Kerr represents the defendant pro bono, along with a laundry list of well-intended advocates. While the case has received its share of attention, it has been overshadowed by the Aaron Schwarz case and subsequent suicide.  Still, it’s an important case, certainly worthy of attention. Orin sells the facts:

When iPads were first released, iPad owners could sign up for Internet access using AT&T. When they signed up, they gave AT&T their e-mail addresses. AT&T decided to configure their webservers to “pre load” those e-mail addresses when it recognized the registered iPads that visited its website. When an iPad owner would visit the AT&T website, the browser would automatically visit a specific URL associated with its own ID number; when that URL was visited, the webserver would open a pop-up window that was preloaded with the e-mail address associated with that iPad. The basic idea was to make it easier for users to log in to AT&T’s website: The user’s e-mail address would automatically appear in the pop-up window, so users only needed to enter in their passwords to access their account. But this practice effectively published the e-mail addresses on the web. You just needed to visit the right publicly-available URL to see a particular user’s e-mail address. Spitler realized this, and he wrote a script to visit AT&T’s website with the different URLs and thereby collect lots of different e-mail addresses of iPad owners. And they ended up collecting a lot of e-mail addresses — around 114,000 different addresses — that they then disclosed to a reporter. Importantly, however, only e-mail addresses were obtained. No names or passwords were obtained, and no accounts were actually accessed.

The fact that AT&T would not have wanted Spitler to visit those particular URLs doesn’t make visiting the public website and collecting the information a criminal unauthorized access. If you make information available to the public with the hope that only some people would bother to look, it’s not a crime for other people to see what you make available to them.

Further, the fact that an automated script was used to collect lots of information instead of visiting manually makes no difference to whether the visiting was an unauthorized access.

“Unauthorized access” and even “exceeds authorized access” should never have been interpreted to apply to publicly accessible data on publicly accessible web sites. Since they have, then I am convinced that the statute is impermissibly broad, and must be struck down. At the very least it must be rewritten.

Shortly after an instructor first arrives at Cardozo’s Intensive Trial Advocacy Program, after settling in with a bagel and coffee, Ellen Yaroshefsky would give a speech about how to critique the students’ performance.  It’s been the same speech for years: First, tell them something they did well. Give them praise. Then, when you tell them what they didn’t do so well, be gentle and constructive. End up on a positive note.

This is the new rule of teaching. Hurt no feeling. While it makes the students feel good about themselves, it doesn’t actually do much to help them. Via the New York Times, a study bears this out.

A recent research paper, “Tell Me What I did Wrong: Experts Seek and Respond to Negative Feedback,” in The Journal of Consumer Research, says that when people are experts on a subject, or consider themselves experts, they’re more eager to hear negative feedback, while those novices are more likely to seek positive responses.

While it’s unclear whether the novice/expert distinction is a matter of cause or effect, the point remains that the accepted wisdom of pedagogy is to coddle so as to not hurt feelings and undermine self-esteem.  Some students prefer to learn what they can do to improve, while others can’t bear anything short of validation.

Why is that? One reason is that as people gain expertise, feedback serves a different purpose. When people are just beginning a venture, they may not have much confidence, and they need encouragement. But experts’ commitment “is more secure than novices and their focus is on their progress,” the paper’s authors said. Even labeling feedback as either negative or positive isn’t helpful, said Tim Harford, author of “Adapt: Why Success Always Starts with Failure.” He noted that his karate teacher told him specific things to do, like bending his toes backward or rotating his hips. “It’s not useful to say, ‘That’s really good or that’s really bad,’ ” Mr. Harford said. “We need to separate the emotional side from the technical points.”

I have fond memories of teaching a group in advanced cross-examination, where one young woman, after being critiqued, demanded to know why her approach wasn’t working.  She took the view that her cross was brilliant and effective, though it was obvious to others in the group, and to me, that it was just awful.  While some students can be given specific tips and pointers, every once in a while there is a kid who is just so utterly lacking in the fundamentals that she needs to start fresh. This was one of those times.

After coming up with some nonsensical positive, she was told that her approach was all wrong and she to start fresh.  She was outraged, and persistent in arguing that she did a fabulous job.  She thought so, and that was all that mattered. Following Ellen’s instructions, I tried to be positive and constructive, rather than accurate and nip the problem in the bud. Eventually, I had to cut it off, as the student refused to let go.

From the perspective of instruction, this presented a problem. Her tenacity ate up a substantial amount of class time, at the expense of other students, and she was the only one in the room fascinated by herself. The others wanted to get on with their efforts, because they too were fascinated by themselves. A few in the class were quite good, and they were angry that the limited time we had with them were being squandered by one demanding classmate. Me too, as this was a fruitless discussion and the student was never going to accept the fact that she sucked.

Later, when I had an opportunity to see the reviews of the class by the students, it broke down like this: the student who sucked hated me for being mean, too stupid to realize she was great, and refusing to validate her. The students who were marginal blamed me for letting the one student waste the time they had to get more cross in. The students who showed skill at cross loved me, and recognized the situation for what it was.

As with every opportunity to teach, I learn as well.  What I learned what that some of us are cut out to be kindergarten teachers and others not so much.  I also learned that for some law students, kindergarten never ends, and they demand to be coddled in perpetuity.  Part of the problem is that entitled people hear only what they want to hear, but the other part is that the pedagogy of positivity prevents us from providing specific, meaningful instruction:

While many of us tend to hear what we want to hear, Professor Fishbach says she thinks the problem lies more with those providing the feedback. “The negative feedback is often buried and not very specific,” she said.

Professor Fishbach also said people giving feedback often didn’t give enough information, offered it too late or told subordinates what would happen if they did something wrong rather than what they were actually doing wrong.

For law students, who think this is all about them, their inability to accept specific instruction as to what they’re doing wrong and how they can do it better will ultimately come at the expense of someone else.  If their cross is ineffective, do they think they’ll get to argue with the jury after the verdict? If they can’t muster a coherent argument before the court, will they tell the judge that he’s mean and stupid?

The directions to say something positive first, offer “constructive” criticism (and I use scare quotes because construction is in the eyes of the student) and close on a positive note, creates what the study aptly describes as a Praise Sandwich, designed to make the student feel good at the expense of teaching the student to do better.

While one might hope, even expect, law students to be both tough enough and interested enough to be capable of handling more serious instruction, including the occasional harsh recognition that they are totally off the mark, the evidence is otherwise. They can be just as fragile, entitled and narcissistic as any kindergartner.  Should they end up before a judge or jury one day holding another person’s life in their hands, their praise sandwich isn’t going to do them much good. But as long as they feel they were fabulous, that’s what really matters.

Of course, while they’re eating their praise sandwich, their client will be munching on American Cheese on white bread in the lockup.

Not the silliness of the latest legal marketing conference, where they are busy twitting about how to appear credible rather than just tell the truth. They shame themselves. In Boynton Beach, Florida, the cops have discovered how to use twitter to shame and circumvent the courts. Another use of this technological marvel.

Via Boynton Beach New Times :

According to Stephanie Slater, the department’s public information officer, the idea came about after the BBPD fielded an uptick in complaints on its Facebook page about traffic zipping by schools. The department has been web savvy since the MySpace era, and today they run an active Twitter account. The BBPD bosses are “very supportive” of social media, Slater says. “It allows us to engage the community.”

The plan is for Slater to camp out with an officer as a school zone throughout the day. If someone gets pinched barreling through, the account will shoot out photos of the radar gun or of the offending vehicle. Slater says they’ll be careful to not broadcast any information that will ID drivers. “We’re not looking to do this to violate anyone’s rights or to embarrass anyone,” she says. “This is just to educate.”

Notice the use of marketer-speak “engage the community”? But is posting photos of the cars stopped and tickets on twitter “engaging,” or educational?  They can claim a benign purpose all they want, but it doesn’t alter the fact that they are posting images of people who have yet to be found guilty of anything.  And by they, I mean the police. If it turns out the person hasn’t violated the law, do they delete their twits six months later?  Have they come up with a means by which to erase the image from the minds of those who follow their hashtag?



While it’s perfectly understandable that local residents applaud the police for enforcement of speed laws in a school zone, the next step of immediately posting embarrassing photos of the alleged violators on twitter for the amusement of locals takes it to a place where police have neither the authority nor justification to go.  These are not “guilty” people until they concede their guilt or a judge finds them so.  Yet, the cops summarily punish them by online shaming.

Does this sound slightly hypocritical coming from someone who has, on occasion, named and shamed someone for dubious conduct?  There is one critical distinction that distinguishes the two.  When individuals, non-governmental entities if you will, identify and discuss the conduct, the ideas, the inappropriateness of another individual, it is a battle of relative equals.  One guy calls out another guy for something he’s done or not, and the other can challenge or question all he wants.  We’re just people speaking out minds.

But in Boynton Beach, it’s not “just people,” but individuals wearing the shield and authority given them by government to act in the name of government. This is not a difference without a distinction, but a huge distinction.  A cop has no power to be judge, jury and executioner, whether on the street using force or on twitter using images to broadcast and humiliate people who have yet to be given due process. 

The law provides for the scope of authority of a police officer.  They can issue a summons. They can arrest a perpetrator.  No law authorizes them to take a picture and shame the speeder on twitter.  Not even if they’re social media savvy. Not even if the department is cutting edge. Not even if some locals (the ones who haven’t yet been caught speeding) think it’s great that they’ve shamed someone else.

To the extent that shaming is a good idea as an alternative punishment, being perhaps more effective as a deterrent than jailing or fining, and more palatable to the guilty person than the alternatives, it is up to a judge to determine whether to impose an alternative punishment, provided the court has the authority to do so.  People are punished after they’re convicted, not as quickly as a cop can press the share button on his cellphone.

Granted, technology has altered people’s perception of time, creating a sense of immediacy and an expectation that they are due everything they want upon demand.  They want the cops to do their job and stop the speeders, but they want to know it’s happening in real time.  So Boynton Beach residents applaud the twitter feed, appreciating that their cops are doing as they want at the expense of the miscreants stopped and shamed.  Aside from the handful of people embarrassed by the twits, there is no one to complain about the wrongfulness of this tactic, and there are taxpayers telling the police what a great job they are doing.

But given the ease and pervasiveness of social media sharing, and the amusement it brings to people who feel entitled to know every embarrassing detail of other people’s lives, this is a problem destined to get worse as the local feedback gets better.  The bottom line is it is not the job of law enforcement to impose immediate shame on those it stops, tickets, arrests. If an offense has happened, the only lawful and responsible action is to bring it to court. They have no authority to put it on twitter.

And for those locals who enjoy some great humiliation on their twitter feed, they can always find a hashtag for a social media marketers’ conference. There’s never any shortage of lulz to be had there, at the expense of people who desire to make fools of themselves on twitter.

As the Floyd v. City of New York trial before SDNY Judge Shira Scheindlin enters its fourth week, the  New York Times reports that it’s turning from the stop to the frisk.  If  stop part didn’t go too well for the cops, frisk doesn’t hold much promise for celebration either.

Had the police officer put his hands in the man’s pockets?

Yes, the man said, which prompted a flurry of follow-up questions.

“Which pockets?” Judge Scheindlin asked. “Pants? Jacket? Shirt?”

The man, Nicholas Peart, 24, was certain the police had reached into his pants pockets.

“Front pockets or back pockets?” the judge asked.

In a odd way, this doesn’t seem like a particularly big deal, all things considered.  And yet, it matters enormously as it puts the lie to so much of the Supreme Court’s Fourth Amendment jurisprudence.  The law works in baby steps, incrementally increasing the police authority to “intrude” on a person’s physical integrity, each step with its own lingo and its own rationale.  To the extent they have any authority to touch you, the Court buys into a justification to it.

But as the testimony before Judge Scheindlin reveals, the finely honed rules that exist in a vacuum only a justice could love don’t play out nearly as well on the mean streets.  If there is any “new professionalism” in Justice Scalia’s eyes, it’s that they don’t beat the kid with a sap as they rummage through a young black man’s pockets.  Shouldn’t we be happy enough for that?

As a matter of law, the police are allowed to frisk for their safety when they have stopped someone whom they reasonably suspect of engaging in criminal activity and, in addition, is thought to be carrying a concealed weapon. In a landmark 1968 decision recognizing the right of police officers to conduct stop-and-frisks, the Supreme Court held that frisking was for “the protection of the police officer and others nearby.” The court also said that “it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other instruments for the assault of the police officer.”

The rule makes sense, that if police have a reasonable articulable fear that a person is armed and could use a weapon against a cop, they have the authority to pat the exterior of a person’s clothing to ascertain whether he’s a threat.  After all, the law doesn’t require police to take crazy risks with their life or safety when doing their job. 

But that’s only for self-protection, and it requires a police officer to have specific articulable facts to show why a reasonable suspicion existed. It sounds like more of a test than it is, since the cop need only offer some magic words, furtive gesture or reaching for his wasteband, before a judge approves.  No judge wants to be the one to tell cops to risk their lives, or be responsible for a holding that ends with a dead cop, and so the amount of slack allowed is huge. 

What makes the pat down even more wiggly is that there are only two times when anybody passes judgment on it: when they find a weapon or when they arrest the person for some other crime.  When the former occurs, the cop is a genius for having used his spidey sense to discover a gun or knife. When the latter occurs, the defendant is a criminal, and any claims about exceeding the limited authority for a pat down to conduct a search are discounted because he’s a criminal.  Who you going to believe, a cop or a criminal?

The real world difference between a pat down and a search starts with whether there is a basis to believe a person is armed, but ends with hands outside the clothing, patting the area where a weapon might be, or inside the clothing, where the contraband can be found. 

In the landmark 1968 decision, in Terry v. Ohio, the Supreme Court observed that frisking, even when limited to a pat-down, was far more than a “petty indignity” unworthy of Fourth Amendment protection. Rather, the court found, it “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”

Even assuming that a police officer, well trained and properly versed in each nuanced baby step the law allows, an excess of caution compels him to pat a guy’s pockets from the outside of his clothing and feels something inside.  It’s not big or very hard, and there is no way to mistake it for a weapon of any sort.  But it’s something, and it feels like…drugs.  He has now touched it. He has now figured out that he’s got a live one on the hook, a kid with bad stuff in his pants.  What is he going to do? 

There is nothing to suggest, beyond his pat down, that there is a reason to conduct a search of this person.  No probable cause to believe that he’s committing a crime. Yet the cop can’t untouch whatever was in the pocket, and it just feels so wrong to let him walk. And so he shoves his hand into the pocket and pulls out a dirty Kleenex and half a Kool he was saving for later.

Judge Scheindlin is cutting through the lies cops tell to show how careful they are in protecting the rights of citizens, with all 700,000 searches done last year.  While the testimony shows the fiction that plays out in police courtroom testimony, where they scrupulously honor the constitutional rights of New Yorkers so that no one ever suffers the “petty indignity,” oops, “serious intrusion upon the sanctity of the person,” the reality is that the baby steps and detailed rules that make so much sense in lengthy legal opinions and footnoted law review articles are a mere blur on the streets of the City.

Get stopped? Get frisked. Get touched wherever the cop wants to touch you, inside your pockets or out, for whatever reason or no reason.  Rules of law are for courtrooms. The rules of the street are playing out in Judge Scheindlin’s courtroom, and for the first time in a very long time, the testimony of the innocent stopped and frisked that otherwise is never heard by a judge is telling the real story about how the law works.

Over at Philly Law Blog, Jordan Rushie, affectionately known as R2D2 at Simple Justice World Headquarters, has gone on a bit of a tear on poor Rachel Rodgers, who is trying desperately to start a viable law practice as a virtual lawyer.  While my first impulse is to cry, leave Rachel alone, it would be a shame to pass up an opportunity to offer some context.

Jordan writes:

Today I was bored and decided to see what Rachel Rodgers is up to. Something she said caught my eye :

As a lawyer with an online-based law practice, your virtual law office website is your storefront and reception area.  The first impression you leave with website visitors can often determine what they think of you and whether or not they will become clients. Its important that your virtual law office website be an interactive, trusted resource for your clients that reflects your personality and gives them a sense of what its like to work with you.

Ah, the future of law! Technology is going to change everything about lawyering! In the very near future no lawyer will have an office and everyone will work from either Starbucks or their living room.

Sometimes, the message isn’t in the lines, but between them, and I suspect that’s the case for Rachel.   Carolyn Elefant’s  comment to Jordan’s post is instructive:

But – and here is my caveat – not all law practices are the same and not all lawyers want or need office space. Firms that provide outsourced general counsel services often work on site for clients. Some lawyers (often women) only want a virtual or part time practice. Many firms here in DC provide service on a national basis and rarely see clients at all. Appellate practice does not necessarily require space.

That doesn’t mean that lawyers in these categories shouldn’t have an office ( I have physical space for an intern and staff), only that an office may not be critical. It may be that full service Westlaw (for an appellate lawyer) or costly CLE and conferences or even a slick website my be more important an expense than an office. If making it your own means anything, it means that lawyers have to do what works for their practice.

It’s important that Carolyn wrote this, “[s]ome lawyers (often women) only want a virtual or part time practice,” because if Jordan had done so, or me, we would have been branded dismissive at best, sexist at worst.  Sadly, it matters whose hand it comes from, and few virtual office aficionados will challenge Carolyn, whereas they are only too happy to condemn a curmudgeon or male for the same thoughts.

What Jordan fails to appreciate is that Rachel has no choice in the matter if she wants to play lawyer on the internet.  She’s physically far away from any jurisdiction where she would be allowed to practice law, and so has to either forsake her education and ability to work as a lawyer, or she has to embrace a third rate alternative and hope that someone, somewhere, won’t notice that she only plays a lawyer on the internet. 

But I suspect that Carolyn similarly doesn’t appreciate that Jordan not only takes issue with the whole “virtual lawyer” gig, with its vast ethical and substantive implications that few either talk about or care about, but the fact that Rachel Rodgers tries to proselytize others to join her in the ether.

It’s not so much that Rachel has chosen the dark path for herself, but that she holds herself out as a guru for others. Indeed, if one is to believe her hype, she’s having greater success as a “lawyer coach” for the misbegotten than she is as a lawyer for, well, anyone.  That, I suspect, is what burns Jordan’s synapses.

But there is a pathology here that I think R2D2 is missing. Jordan needs to imagine how sad and lonely it must be in the Rodgers’ house, a young lawyer barely scraping to get by and trying to boldly rationalize her situation by arguing its virtues to the handful of other, similarly sad, young faceless lawyers.  Sure, she presents a chipper demeanor, but can’t you see the tears, the loneliness, the sadness of isolation?

Make no mistake, there is a huge difference between the lawyer who has spent years gaining competence and experience, gaining a reputation among one’s peers and making close friends with others to share and grow, and the lawyer who has invented a persona on the internet that doesn’t exist anywhere else.  Carolyn speaks of various practices that, to some extent, function well without the need for a physical reception area.  But then, these lawyers reached that point in their careers after first becoming the lawyers they promise the world they are.

So don’t beat up on Rachel for crafting the pretense of a world that doesn’t exist. No one is persuaded to let her guide their legal careers before she has managed to create one of her own.  She’s just using the internet to talk out loud, to convince herself that she can somehow survive the solitude of her lonely room and silent phone.  Instead of seeing her perky face, think of the tears she cries when she’s all alone.  Show some compassion, Jordan. Leave Rachel alone.



FYI: The thing hanging down from the microphone in Smokey’s hand is called a “cord.” There was once a time when things needed “cords” to connect to other things and make them work. Cool, right?

Despite the pile of books on the corner of the table behind my desk, all waiting to be read and, perhaps, reviewed, a few that sound fascinating never make it to the pile.  At Concurring Opinions, Olivier Silvain reviews on that I’m now dying to read,  Evgeny Morozov’s   To Save Everything Click Here: The Folly of Technological Solutionism.

He has distinguished himself above all as an equal opportunity take-down artist, unafraid to criticize the biggest names in Silicon Valley, punditry, and academia for their overdetermined claims about the meaning of the Internet.
As the title of his recent book suggests, Morozov believes that contemporary “Internet-centric” thinking clouds our judgment and ability to make choices for ourselves.  He argues that the social value of recent technological innovations is far more contingent than the breathless claims of pundits like Jeff Jarvis and Clay Shirky suggest. Technologists, journalists, scholars, and users, he argues, should treat every new product launch or beta release from Apple or Samsung or Facebook with the same healthy dose of skepticism that they reserve for everything else.

Sound familiar? It’s one thing for those who pray to Susskind and genuflect at the feet of Shirky to ignore a curmudgeon like me, but Morozov was born in 1984. I’ve got socks older than him. He’s part of the digital native crowd, the ones who breathed technology under their bedcovers when their father yelled at them to go to sleep.

He is especially critical of technology journalists who, he argues, are nothing more than “trend spotting stenographers” for research and development offices in Silicon Valley. He argues that, while social networking applications like FourSquare or crowdsourced platforms like Wikipedia are powerful, they do not determine outcomes and are not the agents of change.

Is it possible? Am I not the only one who thinks the digital utopians have grossly overstated their case?

But as much as Silvain says he appreciates that Morosov “provides a healthy dose of good old fashioned secular humanism in an area that so eagerly seems to need it,” he has reservations.

After all, the book purports to be about ideology, not policy or design per se. In this way, Morozov seems to be channeling the Frankfurt School more than Lawrence Lessig or Tim Wu (both of whom he criticizes). And, accordingly, he releases himself from doing anything other than changing your mind.
Of course, Morozov is not obliged to do anything more than that. Changing minds is hard enough. Then again, trade books in this subject area with titles like these are not supposed to do much more than incite us to buy them, never mind think. (Alas, Morozov also does not have to abide by the expectations in legal scholarship to have some normative or substantive policy prescription.)

Where Silvain may be troubled that the book doesn’t fit the law review formula of promoting a particular solution, I see that as a feature rather than a flaw. The problem isn’t so much about a problem, as about a perspective, a view of technology, whether it be the cloud, the web or the latest app mislabeled a “solution” to a problem you never had, but how so many have come to blindly adore these computer thingies without appreciating what they do for us, add to our lives and work.  Or not.

How often do you see anyone question why a lawyer would possibly need a new cloud-based “solution” to perform something we’ve been doing extremely well forever?  It may only cost $129 a month, but there is nothing that can’t be done for free with a BIC pen and a yPad.

But Silvain saves his most cutting criticism of Morosov to the end:

While I could never know for sure, and despite his claims to the contrary, I am not convinced that Morozov is mainly out to change hearts and minds, particularly in light of To Save Everything’s snarkiness. Of course, many bloggers these days traffic in the same smug and haughty tone as a matter of course, perhaps to distinguish themselves from the officious “he-said-she-said” balancing that is characteristic of mainstream journalism and academic writing (and blogs like this one). It would be a bonus, I suppose, if, through the book, Morozov could incite his audience to banish Internet-centrism from their minds once and for all. But I’m not sure snarkiness is the most effective way of doing that.

As has long been chronicled here, there are few things that lawprofs despise more than snarkiness, the “toxic tone” that makes their eyes burn.  As Silvain notes, there are “many bloggers” who “traffic in the same smug and haughty tone,” a pejorative description that scholars use to distinguish them from the “thoughtful and balanced” tone they adore.

Of course, “snark,” itself a word invented for the digital age, is the antithesis of the labored, prolix and overly-nuanced use of arcane language that so obscures a point that if you stay awake long enough to get to the end of a sentence, you still have no clue what the point is.  Then again, there are always footnotes. Is there a virtue to following the legal academy’s style book when trying to make a point?  Only if the readers are professors.  If the point is to write for anyone outside of academia, then it behooves a writer to both have a point and to have the capacity to make it so that the reader knows what it is, clearly and concisely.

A second book that has  hit the street this week is Steven Harper’s The Lawyer Bubble. castigating the way greed has overtaken the profession, from law schools to Biglaw.  It’s also not on my pile to review, but it brings hope, together with Morozov’s, that maybe there is hope for the law and lawyers, and from this, for the people we exist to serve.

Of all the doctrinally worthless expressions coming out of our Supreme Court, perhaps the worst ever was Potter Stewart’s “definition” of pornography, “I know it when I see it,” in his concurrence in Jacobellis v. Ohio.  So naturally, 7th Circuit Judge Richard Posner, via the Jacob Gershman at the WSJ Law Blog, feels compelled to up the ante in osner:aut:T:fnOp:N:1112642:S:0/”>United States v. Dotson.

Steven Dotson, prosecuted for being a felon in possession, argued that the gun he used in an armed robbery wasn’t a gun, but a hefty hunk of steaming junk.

The pistol is a Hi-Point .380 caliber semi-automatic. It was certainly designed to be a gun, and nothing else. But according to the pretrial report of an expert at the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives, at the time when the defendant possessed the gun it was inoperable because of “significant damage, missing/broken parts, and extensive corrosion.” The expert testified similarly at trial—testified that the gun was “damage[d]” and had “corroded, missing and broken  components which make it inoperable.”

The only question presented by his appeal is whether the pistol was a firearm, defined (so far as bears on this case) as “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” or “the frame or receiver of any such weapon

Testimony was that it would take a skilled gunsmith hours to clean and repair the weapon sufficiently to return it to the point where it would expel a projectile. The government conceded that the thing in Dotson’s hand couldn’t have expelled squat, but that didn’t change the nature of the beast.

The opposite position, which the government doesn’t quite espouse but doesn’t disclaim either, is once a gun always a gun: anything originally designed as a gun remains a gun no matter how dilapidated it becomes, how difficult to restore to operating condition—or even impossible.

Ultimately, Judge Posner seizes upon the “designed to” language in the statute to hold:

The gun in this case, although in bad condition, neither was redesigned to be something other than a gun nor is so badly damaged that it can no longer be regarded as a weapon designed to fire bullets. And just as a very ill person can look entirely normal on the outside, the outward appearance of the defendant’s gun is normal. Designed to be a gun, never redesigned to be something else, not so dilapidated as to be beyond repair, the gun fits the statutory definition and the judgment must therefore be

AFFIRMED.

While the opinion is mercifully short, and includes an embedded image following rule number 4 of best blogging practices, it ultimately provides so little guidance as to what constitutes a weapon for a felon in possession as to give Potter Stewart a run for this money.  Not so dilapidated?  So how dilapidated does it have to be? How many parts need to be missing? How much corrosion is enough?

Yes, an object originally designed for the purpose of expelling a projectile maintains that “design” unless and until it has been redesigned to be a cigarette lighter or, who knows, a super soaker?  But Dotson’s gun couldn’t hurt anyone unless he threw it at them at a close distance, and then only if his aim was true.  What was once a gun was not a prop, meant to intimidate for sure, but hardly capable of firing a bullet, which is the evil the law seeks to prevent.

But if it had the capacity to emit a flame rather than absolutely nothing, Dotson would be innocent. Instead, by using a corroded, dilapidated, inoperable gun, Judge Posner holds that it’s a gun.  Go figure.