The door opened with a post by Eric Miller at  PrawfsBlawg where he made the mistake of conflating doctrine with practice in the headline:

The False Dichotomy Between Practice (Doctrine) and Academics

I’ve made the argument in previous postings that interdisciplinarity is necessary to understand low-level courts.  But I also believe that interdisciplinarity is an essential party of *any* law school education, elite or *non-elite*.  That’s why I’ve been so disappointed by some recent attacks—in the name of educational pluralism or practice-readiness—on interdisciplinary approaches to law as so much academic self-indulgence by faculty.  The idea appears to be that there is a dichotomy between what lawyers need to know and what “academics” teach, and that often rides on the back of an argument that what “academics” teach is fit only for those folks at the top law schools who want to become academics themselves.  I think this is a false dichotomy, and it shows a profound ignorance of much of legal practice, and certainly practice in lower courts or the non-elite end of the spectrum. 

Based on some of the more vehement reactions to Eric Miller’s recent post, it seems to me that a lot of us are talking past one another when we use words like “practical” and “skills.”  “Skills” are like free speech:  everyone agrees it’s a good thing but no one can agree what it is.

Doctrine: The rules of law applied to factual scenarios.
Practice: The way things actually happen in court.
Skills: The things lawyers actually do to represent clients.

But by the same token, one cannot be an effective attorney if one cannot, say, negotiate a plea offer or a business deal.  So it comes down to what can realistically be taught in three years and what must be picked up in practice.  And, yes, some skills must await practice to be developed.  The notion of a lawyer being “practice ready” upon graduation is simply, for lack of a better term, horseshit. 

A comment from a regular reader, which you are free to ignore or even delete: It may seem prudish and trivial, but I enjoy posts less and am less likely to be persuaded when the author includes words like “horseshit.”

When I was in law school, I took a class on Trial Advocacy that included how to give an opening statement, direct and cross examinations, and a closing statement. I think that’s one example of skills training. Similarly, in a class in crim pro, skills training might include drafting or responding to a motion to suppress.

At my school, “skills” evidently includes training in meditation and mindfulness. So, I guess the range is from “Where is the courthouse” to Eastern religion. Of course, teaching skills will not stimulate the demand side of the market. BTW, on the Texas Bar exam when I took it was this: Draft an Indictment.

It was another instance of “saved by the video,” as Brooklyn resident John Hockenjos didn’t stand a chance otherwise.  He was accused of trying to run down NYPD Officer Diego Palacios, who heroically jumped out of the way. 

Hockenjos was arrested and spent three days in jail before he made bail.  When he got out, he located a video of the incident which conclusively proved that Palacios fabricated the story. The video got plenty of play, with cheers from the crowd as Hockenjos’ case was dismissed and Palacios was indicted.  Hooray.

For most, that was where interest waned.  After all, the innocent guy was exonerated and the bad cop would face the music. As reported in Sheepshead Bites, the song didn’t play very long.

“This individual spends four days in prison, with no probation, and he gets out of jail today or tomorrow and he’s a free man to do whatever he wants,” Hockenjos told Sheepshead Bites. “And I have to be in pure fear that there could be retribution. I should not be in this position; there should at least be probation.”

Even more galling, Hockenjos said, is that the assistant District Attorney on the case, Elizabeth Moehle, abandoned all the usual courtesies for the victim in prosecuting the case. Hockenjos said he wasn’t told about Thursday’s hearing until after the fact, and the District Attorney’s office never ran the plea deal by him.

“I started crying right away,” Hockenjos said of hearing news of the deal last week. “I’m afraid now. What’s going to happen to me?”

A spokesperson for Joe Hynes, who hasn’t been shown much love around Brooklyn lately, says that can’t be:

Though not required by law, the District Attorney’s office said that as a matter of policy, their office seeks the victim’s approval for all plea deals.

A spokesperson for District Attorney Charles Hynes told Sheepshead Bites that Hockenjos did give the thumbs up to the deal.

“We never do a plea unless the victim agrees to it. So that actually happened,” said Hynes spokesperson Sandy Silverstein.

Interesting path taken to reach that conclusion. If this is our policy, it therefore must have happened.  If the victim says no one every mentioned it, the victim must be wrong, since this is our policy. In Brooklyn, you can’t argue with a checklist.

Too often, we spend a lot of time and energy on the pivotal moment when the cop gets caught dirty, when the video tape proves that he lied.  The old “why would he lie” argument doesn’t hunt when there is a video, even though the legal system perpetuates its resistance to challenging a cop’s word as long as there is no video to prove otherwise.  We applaud the evidence. We applaud the reversal of fortune.  We applaud, and then move on.

John Hockenjos, unfortunately, won’t find it as easy to move on.

Hockenjos and his wife, Irena, say they live in fear that Palacios and his former colleagues at the 61st Precinct will seek retribution. Since the initial arrest, they’ve been afraid to call officers to report suspicious activity, or to protect them in an ongoing property dispute with a neighbor, who they claim has physically attacked them in the past.

“Now police officers can just shoot us to death and they won’t even face jail time, they’ll just resign from the police department,” Irena said. “This is very scary. I’m afraid to stay in the house; I’m afraid to step out.”

Retribution? By a disgraced ex-cop and his buddies on the force?  But that would be petty and unprofessional, a direct conflict with their duty to protect and serve. Oh wait, the cop lied in the first place. There was no honor to be found in the 61. Never mind.

Cries of lengthy prison sentences for lying cops, huge awards on subsequent lawsuits against the city, warm the cockles of onlookers’ hearts after the initial revelation that there is proof that another cop lied.  A year, maybe a few, later, the results rarely meet such rosy expectations. 

While sentencing in most criminal cases, sometimes at monumental length under the rubric of deterrent, sending a message, is a fiction that justifies decades in prison when no one knows that it happens, it’s different with cops. Unlike the rest of us who move on to the next story of abuse, lies and outrage, the police pay close attention to what happens with their own. Indeed, it’s obsessive, to see if their good buddies in the district attorney’s office or on the bench has shown their former brother the respect he deserves. 

This is where deterrence happens. And it’s also where payback happens, as a prosecutor who comes down hard on a lying cop knows that he will make no friends in the precinct.  It’s one thing to prosecute a cop who harms children, but a cop who lies? That could be anyone. The police know it. The prosecutor knows it. The judge knows it.

In the scheme of worrying about the victim’s feelings and fears, as opposed to the working relationship between the two wings of law enforcement, coming down hard on a lying cop carries problematic ramifications for the future. Hockenjos will go away. The police and prosecution still have to deal with each other every day.  Which relationship matters more?

So John and Irene Hockenjos will continue to live in Brooklyn, in the 61 Precinct, hoping that they never need to call 911 or have a run in with a cop that isn’t videotaped. If something happens, and it very well could, the chances of getting a time served sentence are slim.  At least Diego Palacios is off the force for having lied and copped the plea, which precludes the NYPD for giving him that medal for his heroic leap to safety.

H/T FritzMuffKnuckle

On the heels of the latest threat to sue a blogger by a  sad woman in Connecticut for her personal theory of how the law should work and her paranoid delusions of the evil internet, it’s worth visiting the argument happening in New Jersey over whether blogger Tina Renna, a harsh critic of local government, is a journalist and therefore protected under the shield law.

Union County, N.J., prosecutors demanded Tina Renna give them “the names of 16 government officials who she accused online of misusing county generators after Hurricane Sandy,” Lilly Chapa reports. Renna claimed privilege, and Superior Court Judge Karen Cassidy has ordered a hearing “to further discuss whether Renna is a journalist as defined under the state shield law,” Chapa writes.

That’s the challenge: If we let any blogger be covered by the shield law, so many people will claim the privilege that the exception could swallow up the rule. A line must be drawn, but the courts haven’t identified one. So it depends on the facts of each case

In this case, they conclude, “Yes, she can be a little wild, she’s not the same as a professional reporter and she drives local officials crazy. But part of democracy is putting up with Tina Renna.”

Deroy Murdock at the  National Review puts together a survey of SWAT raids, full battle uniforms and weaponry, over such heinous allegations of criminal conduct as unpasteurized milk and theft of koi.

FBI agents and U.S. marshals understandably are well fortified, given their frequent run-ins with ruthless bad guys. However — as my old friend and fellow columnist Quin Hillyer notes — armed officers, if not Special Weapons and Tactics crews, populate these federal agencies: the National Park Service; the Postal Inspection Service; the Departments of Health and Human Services, Agriculture, Labor, and Veterans Affairs; the Bureaus of Land Management and Indian Affairs; the Environmental Protection Agency; and the Fish and Wildlife Service. Even Small Business Administration and Railroad Retirement Board staffers pack heat!

These “ninja bureaucrats,” as Hillyer calls them, run rampant. They, and often their local-government counterparts, deploy weapons against harmless, frequently innocent, Americans who typically are accused of non-violent civil or administrative violations.

Why Murdock gives up the ghost to FBI and marshals so easily isn’t quite clear. I suspect that those on the outside still harbor what can be kindly described as a charming naivete when it comes to those things that remain distant, like “real” criminal law enforcement, and only see the insanity of those things about which they’ve become slightly familiar.  The need to believe in normalcy and reason by overarmed people is strong, even when the pigeonholes don’t quite fit.

Murdock’s focus is on the agencies of government whose functions aren’t directed toward law enforcement per se, yet maintain their own bureaucratic armies. Whether SWAT per se, or merely a merely a police force of their very own, it properly strikes home that there isn’t a great need for the Railroad Retirement Board to be capable of mounting an counteroffensive to the marauding Russian army.  Yet, they’re prepared.

After  watching a video of a police officer, a former Marine, smack a less-than-obsequious victim, a former army reservist, for his failure to sufficiently respect his authority, I began to realize a connection that had previously not occurred to me. It starts with the volunteer military.

In 1973, the United States ended the draft, going to an all-volunteer military. At the time, post-Viet Nam, the draft was extremely unpopular, and the end of conscription was hailed as a huge step forward.  But the end of the draft also meant that the military was a career choice for young people. Rather than college or carpentry, young men and women elected to go from high school into the army (used in the generic sense of military service rather than a branch of the military), where they would be trained and indoctrinated into their future careers.

These young people were handed over to the army at an impressionable age, meant to be molded into a fighting force to safeguard the nation.  To accomplish this, it was necessary to instill a blind acceptance of rank and authority, honoring the chain of command without question. They are taught methods and tactics, and told that these are the way their lives are saved, and these are the ways they save the lives of their mothers and fathers. The training is like a religion, to be accepted without question. It’s very effective training.

After these impressionable youths have grown up a bit, to the point where they grow whiskers and have children, they need to leave the womb of the military and make their way in the real world; earn a living, buy a home and raise their children.  As they walk away from a world that makes perfect sense to them, they need to apply the skills they learned in their secondary education, the army, to the civilian world. There aren’t that many jobs that require field-stripping an automatic rifle or rushing into oncoming fire.

Of course, there is one civilian job that fits the bill quite well. Law enforcement. It obviously can’t absorb every former soldier, but ex-military are extremely well-suited to the task in many ways, the ways that people who seek law enforcement personnel value. They follow orders. They respect the chain of command.

They bring other things to the Job as well. They bring the mental separation of us-and-them needed to kill people. They bring the tactics they were taught kept them alive. They bring the belief that overwhelming power, shock and awe being an example, serves them and their strategy. In other words, they bring all the things that were strengths in the military but are dubiously employed against their fellow citizens, their brothers and sisters at home.

Obviously, there aren’t enough jobs in law enforcement to absorb every former soldier, and those who reflected the greatest dedication to the religion are most valued in law enforcement. They are fierce warriors. They take no prisoners. They know how to control and subdue an enemy. They become our police, whether in local departments, the Fish and Game Administration or the U.S. Marshals’ Service.

Where the uniforms were once blue, they feel more comfortable in battle gear. Where the weapons were once pistols, they were trained to love their automatic rifle. They will never forget  the catechism they were taught in basic training.  Given the option of going into battle the way they were trained, they will choose to do so.

Radley Balko’s upcoming book, Rise of the Warrior Cop: The Militarization of America’s Police Forces, will no doubt address this in far greater depth than a mere blawg post, ranging from the distribution of military weaponry to local police departments, which are then used because, well, they’re there, to the adoration and glorification shown when law enforcement’s terrible high tech gadgetry is used to stop a threat, whether real or perceived.  This strikes me as another piece of the puzzle of what has gone so horribly wrong.

A self-selected segment of our children have chosen to be made into warriors, and we praise them highly for their choice. When later they change employers, they don’t change their religion or understanding of their place in the world. They are what we made them to be, even though the new enemy is us.

Christopher Dorner is not a hero. His  manifesto is not a condemnation of anyone or anything. He is a killer, crazy and as unreliable a source of information as exists. No, it doesn’t matter that aspects of his claims of police abuse and corruption are independently supported by other evidence. It changes nothing about Dorner.

But the fear he has struck in the hearts of Los Angeles police reveals what cops have always tried to conceal from the public; that their primary goal is to protect themselves.  Even if it means they mindlessly, needlessly, kill others in the process,  This may be the most flagrant example of the First Rule of Policing, and there are no arguments or twisting of facts that can shield it from view.

From the LA Daily News, Emma Hernandez, 71, and her daughter, Margie Carranza, 47, for being in a pickup truck that was marginally similar to the one allegedly used by Dorner. The real reason is that they were close to the home of a police captain, a named target of Dorner’s, and didn’t drive in a fashion that struck the cops as expected. A million miles away from a righteous shoot, but close enough for them.

It’s not that there was no explanation for this shooting by the cops, but that the explanation isn’t close to good enough to justify it. The motive needs to be said: they were willing to take the risk of killing the two women rather than allowing one of their own to be threatened with harm.

Then came the second mistake :

David Perdue was on his way to sneak in some surfing before work Thursday morning when police flagged him down. They asked who he was and where he was headed, then sent him on his way.

Seconds later, Perdue’s attorney said, a Torrance police cruiser slammed into his pickup and officers opened fire; none of the bullets struck Perdue.

His pickup, police later explained, matched the description of the one belonging to Christopher Jordan Dorner — the ex-cop who has evaded authorities after allegedly killing three and wounding two more. But the pickups were different makes and colors. And Perdue looks nothing like Dorner: He’s several inches shorter and about a hundred pounds lighter. And Perdue is white; Dorner is black.

Again, a million miles away from propriety, but so what? They will take the hit for the mistake rather than the hit of a bullet any day. After all, a mistake merely risks the death of some guy they don’t know and whose life means nothing to them. The alternative is the potential risk to one of their own. That cannot happen.

Whenever a credible apologist is needed for incredibly stupid police conduct, the media turns to John Jay College, where they are happy to oblige:

“Nobody trains police officers to look for one of their own,” said Maria Haberfeld, a police training professor at John Jay College of Criminal Justice in New York. “I wouldn’t want to be in their shoes and I don’t think anybody else would.”

Is it necessary to be trained to look for an ex-cop before one doesn’t mistakenly murder civilians? Of course not. It’s a red-herring, but then, it’s not like Haberfeld had as much time to develop an excuse as the LAPD.

A department spokesman said Saturday that the shooting is still under investigation. In a statement to The Times, the department said: “The circumstances of the incident known to the responding officers would have led a reasonable officer under normal circumstances — and these were far from normal circumstances — to believe that fellow officers were being shot at and that the vehicle traveling toward them posed a serious risk.

“In the split seconds available to them,” the statement continued, “action was appropriate to intervene and stop the actions of the driver of that vehicle.”

Aside from no shots being fired and the truck being stopped, great explanation. The department tossed in the usual “split seconds” excuse, one that always serves the police well.  Sadly, it’s only available to police. Lest anyone else think they, untrained and wholly unprepared, claim they made a mistake in a split second exercise of judgment, they will learn that there is no leeway for a mistake for anyone who is not a police officer. That’s because the First Rule of Policing doesn’t apply. You are expendable.

The latest word is that the LAPD has  offered a $1 million reward for the capture of Dorner, together with re-opening his dismissal from the force and a promise that if he surrenders, he won’t be harmed. LA Police Commissioner Charlie Beck announced:

If you don’t, if you decide to try to take the life of another Los Angeles police officer or their family member, then you’ll have to suffer the consequences.”

Apparently, the message is that if they capture Dorner, they will kill him as punishment.  This trio is really comprised of two messages, one for Dorner and the other for public consumption. The reward is for the benefit of the public, who hasn’t taken kindly to the LAPD shooting people for no particularly good reason. So they are offering a lottery. You gotta be in it to win it, and who couldn’t use a cool mil?  It’s hard to imagine they would ever pay out a million dollars, but it’s the first sign of giving anything back to the community and it’s all they’ve got.

The other message, the one for Dorner, is the fist in the velvet glove. While denying the offer to reopen his dismissal is meant as appeasement to a killer, of course it is. Maybe Dorner is crazy enough that this will somehow sate his delusions. If not, there is always the announcement that he will never be allowed to make it to a courtroom.  Given that newspaper delivery people can’t make it home without being shot, this is hardly a stretch.

While it’s Dorner’s conduct that exposes so much about the Los Angeles police, it’s not because he’s right. Not about anything. It’s because the LA cops are wrong, and when the First Rule is challenged so flagrantly, they are fully prepared to shoot anyone, do anything, to prevent harm to one of their own. They will never, however, do this for you, because you are not them. 

Update: Via Reddit’s Bad Cop No Donut, a bumper sticker well worth the price:

Elie Mystal’s powers of persuasion continue to amaze me. Somehow, Elie persuaded Loyola of Chicago’s law school dean, David Yellen, to write a “column” at Above the Law. Hooboy.  Whether there will be a second column has yet to be seen, but to say his reception was not warm is an understatement.

The fact that Dean Yellen was willing to walk into the lion’s den of snark and angst reflects a pretty admirable degree of fortitude on his part.  The fact that he thought he could get away with the usual fluff, rudimentary acknowledgement of the issues leading to the pedantic talking points of the Academy stalwarts was, well, foolish.

Almost all law schools are in the process of changing significantly and, by the standards of the academic world, rapidly. Where we will wind up is very much up in the air. Right now we have more questions than answers. Some schools will probably adapt very effectively and will emerge in strong shape. Others will flounder and perhaps close.

In the weeks ahead, I hope to talk about these issues in a way that is fair and balanced (isn’t there a TV network that says that?). There will be those who disagree with some of what I write; others may disagree with everything. But as I said to Elie, it may be naïve, but I still believe that even in our overheated internet age, there is real value in serious dialogue on important topics. I look forward to our time together on ATL.

It’s not that you’re naive, dean. You are, but that’s not your biggest problem, or even among the top 10. There is real value in serious dialogue, but when you preface the obvious by “our overheated internet age,” you are telling the Philistines that serious dialogue only happens on your terms.  Those days are dead, dean.

The  arrogance of scholarly tone is a brick wall, stopping the pretense of dialogue dead in its tracks. You may believe there is common ground, areas of give and take, where improvement can be made that will satisfy the unemployed, indebted barbarians, but you won’t indulge them as they refuse to speak in the hushed tones that suit your sensibilities.

They will eat you alive for this. They will shred you for your paternalistic refusal to talk to them if they don’t talk your way. 

But nothing can be accomplished if they call you mean names and refuse to hear you out?  There is a message in there that you aren’t hearing, dean. They are angry. It’s to your benefit to calm the storm, because angry people aren’t easily appeased, and they aren’t interested in giving letting you make the rules of engagement so that you can calmly explain why they are overheated and you are mindful.

They have heard from you before. Maybe not you, but others with the same talking points, the same soothing dulcet tones, and the only thing it got them was a bag of Cheetos and a seat on the basement couch.  They aren’t going to let them happen again.

I suspect, as do you, that there is common ground, from the closing of marginal law schools to reduce the number of lawyers spewed on the market to something more closely resembling what society can absorb.  I suspect that chopping scholars’ salaries by half, and maybe half again, because they can try their damnedest to get a big money job at Biglaw, but we all know that’s not happening for most of them.  The introduction of actual lawyers teaching what they have actually done, in lieu of scholarship with no purpose other than to impress the tenure committee, may be on the table.  But discussion of any of this is going to come with a lot of cursing, anger and name-calling.

For a long time, the nice men and women who held the positions of power in legal academia got to dictate the tone of the discussion.  It never suited me, as I never quite understood what the hell they were trying to say. It was subtle and, from this trench lawyer’s perspective, pseudo-intellectual. It was always my view that if you have something to say, just say it. Burying it in a thousand nice-sounding but vague words didn’t cut it.

I hope, Dean Yellen, you show up for another round of “whack-a-dean” at Above the Law.  Maybe you can lead the way, even if there are a few lawprofs who have gone far down the road ahead of you, at least on the paths they think will help the situation. 

But for crying out loud, don’t come back if you think you get to dictate the tone of “serious dialogue.”  They aren’t falling for it again. Much as this will sound offensive (as I’ve been told by some of the bolder voices in legal academia who inform me that they would really like to speak straight but fear that their colleagues will look askance at their foul mouths), man up, dean.  The real world has whatever tone its participants choose to give it, whether you like it or not. You don’t tell the other side how to behave, just as they don’t tell you.

And if you can’t lower yourself to engage in a discussion without dictating its terms, then don’t bother pretending you’re trying to help.  If you didn’t realize that there were problems rocking your throne, you wouldn’t be talking to these whiners and malcontents in the first place.  Mean words and nasty names are going to be part of the discussion, not only because that’s how real people communicate but because they are angry with you for being part of the world that brought them misery.

Get off your throne and come talk to the peasants. I can’t promise you they won’t storm the palace, but then, they may well storm the palace anyway.  If they do, you’re being thrown into the dungeon. Trust me, if you don’t like the tone now, you’re going to hate the tone in the dungeon. So get real, get off your throne and take the dialogue however it comes. Even overheated.

When NBC  revealed the white paper providing a limited view of the government’s explanation for why it had the power to kill anyone, American citizens included, at will in the War on Terror, most of us recoiled in horror at the bottom line: If they kill them, they deserve it.  Why? Because we say so.

Of course, there are always others who see it differently. Unsurprisingly, one of those “others” is John Yoo, of the DOJ torture memo fame.  Via Jack Goldsmith at Lawfare, Yoo has offered his views at the Wall Street Journal.

The real story revealed by the memo is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods. Its approach reflects the mind-set of an administration populated with officials who spent the  Bush years decrying military methods then employed and are now trying to impose a weaker law-enforcement approach to combating terrorism. . . .

The memo shows that for the first time in the history of American arms, presidential advisers will weigh the due-process rights of enemy combatants on the battlefield against the government’s interests, judge an individual’s “imminent” threat of violence, and ponder whether capture is feasible before deciding to strike. Under these provisions, the U.S. military’s speed and decisiveness will suffer, even as the intelligence needed to identify drone targets dries up with the withdrawals from Iraq and now Afghanistan.

The memo even suggests that American al Qaeda leaders such as Anwar al-Awlaki (killed in a 2011 drone strike in Yemen) enjoy due-process rights. But in doing so, it dissipates the rights of the law-abiding at home.

Not only are the complaints of a wholesale lack of due process misguided, but the real problem is that we’re even uttering the words “due process” at all.  Not for the benefit of terrorists, Yoo argues, but because affording rights to military enemies “risks stretching those protections a mile wide and an inch deep—weakening them for all Americans.”

And lest you think it’s only the torture-loving Yoo who sees things in black and white, the New York Times  Room for Debate covered the issue, and found others, like Pepperdine lawprof Gregory McNeal, who agree with Yoo.

Military targets — whether persons or objects — are simply not an appropriate subject for judicial review, and this is a good thing.

The Constitution, McNeal contends, isn’t offended when we kill our military enemies, and whose passport they carry doesn’t change the threat.

What appears to give rise to these polar views isn’t a different view of the constitutional command for due process, but rather a problem with the definition of a military enemy.  As the government uses the word “war” as a rhetorical device, it’s meaning has been diminished for some and embraced by others.  This problem was clear long ago, when former Attorney General John Ashcroft explained life to us dopes:

Apparently, this is all a matter of how we define “war”, and who our enemies might be.  Sure, the phrase “war on terrorism” has become ubiquitous in public discourse, but it’s just a phrase designed to capture a sense of gravity.  It’s not literal.  At least I thought it wasn’t.  Ashcroft thinks otherwise.

There is no comparison with the “war” Ashcroft speaks about.  Some will argue that the soldiers in a jihad don’t wear uniforms, so it’s foolish to argue that the lack of a uniform makes them immune from being prisoners of war.  But this returns us to the question of whether this is a war, or something else.  Terrorists don’t wear uniforms.  Terrorists don’t serve a country.  Terrorists don’t fit neatly within the confines of our historic understanding of war. 

This rationale, that anything we chose to call a war thus becomes one, shows a fundamental rift in our American psyche.  We want to be protected from international terrorism, but can’t find a pigeonhole to fit it so that it neatly fits within any recognized paradigm that tells us how to address it.

That was written four years ago. If the lie is perpetuated long enough, it becomes real. Clearly, it’s very real to John Yoo, as it is to others.  By embracing the rhetoric of “war,” it all makes sense. Obviously, judges play no role on the battlefield. Clearly, our Constitution doesn’t dictate who dies in battle. But that requires us to view the world as a battlefield, from Des Moines to Kabul.

The problem with blurring definitions is that you end up with blurred definitions. When Timothy McVeigh bombed the Murrah Couthouse, it wasn’t a declaration of war, but an act of a deadly madman.  When the Twin Towers came down, it was different because they weren’t from here.  The rhetoric changed. War was declared. Americans rallied against a vague group called “Islamic terrorists” who represented no sovereign and wore no uniform.  Rather than consider whether this undermined the definition of war, our frenzy and anger seized control and we let the lines blur.

More than a decade later, we are paying the price for ignoring Orwell.  There will be many Americans for whom the rhetorical device of “war” remains sufficiently convincing to answer the question of whether our President is engaged in the killing of Americans without due process or whether he is fulfilling his constitutional duty to protect us against an aggressor who would destroy our nation. 

Soon after the atom bombs were dropped on Hiroshima and Nagasaki, the Empire of Japan unconditionally surrendered to the United States of America.  On September 2, 1945, a delegation, both in uniform and in the daytime formal wear of diplomats, signed the treaty.

This delegation represented the sovereign against whom America fought and for whom their soldiers died. They had the authority to end the war.  Who would John Yoo look to if his enemy combatants decided to surrender?  No one speaks for those who hate America.  They wear no uniforms. They have no diplomats. They represent no nation. So who, if Yoo has his way and we characterize this as neo-war and the world as the battlefield, would unconditionally surrender if we win?

If there is no one to surrender, there can be no war, because our enemies can never be known and the hostilities can never end.  Maybe it isn’t the same as crime, but it also isn’t the same as war.  But when the targets of our drones to be killed because the President says so are our own people, we cross a line should never be blurred.  And that’s why due process matters before the American government can kill Americans. 

Amid the hoopla surrounding every new shiny must-have toy in the lawyer’s arsenal lurks a time bomb waiting to go off.  Your email address.  Most of us have a few of them, born of necessity from sources like Google, which demand the creation of an in-house email if you want to enjoy its functions.

Then there are the new websites everyone has purchased because somebody, whether marketeer or youth, informed you that it’s no longer cool to have an AOL email address and marks you as a social media dinosaur.  So people switch emails with abandon, keeping up with the skirt height or tie width of the internet.  It’s all good fun, right?

Not according to  Judge Lewis Kaplan’s opinion on appeal in the Worldcom bankruptcy case.

The rulings were entered on the electronic docket, and notice was automatically emailed to CNI’s sole counsel of record, W. Mark Mullineaux, at the email address which he previously had registered with the clerk’s office for the purpose of receiving such notifications. But that was an old email address.

Mullineaux’s new email address was listed in his motion to appear pro hac vice in the case, but he hadn’t updated his profile in the electronic case files (ECF) system. As a result, Mullineaux didn’t receive the court’s notification and failed to file a timely notice of appeal.

The district court wasn’t overly concerned, and granted an extension of time to appeal, based upon the failure to get timely notice and lack of prejudice. The 2d Circuit, however, wasn’t nearly as sympathetic.

District Judge Lewis Kaplan, sitting by designation, wrote, “There is nothing in the history of the rules … to suggest that the drafters sought to provide relief when the fault lies with the litigants themselves” and that “CNI’s failure to receive Civil Rule 77(d) notice was entirely and indefensibly a problem of its counsel’s making, and Rule 4(a)(6) was not designed to reward such negligence.”

Granted, ECF is one of the most horrifically bad systems ever created, nearly impossible to decipher or use.  My personal experience in trying to change things is that it frequently doesn’t work, or at best adds new information without any means of deleting old information that’s no longer valid.  Over the years, I stacked up a number of fax numbers in ECF, as new ones didn’t replace, but merely supplemented, old ones. The upshot was the faxes were sent to the oldest number, the one on top, even though it hadn’t been valid in a decade.

But Judge Kaplan makes plain that keeping transmittal information up to date is the lawyer’s responsibility, and the client will pay a heavy price for our failure.  The ABA says lawyers are ethically required to stay abreast of technology, and even I agree. You don’t have to adore it, but you have to know about it.  Ignorance is no longer cute.

Many of my pals on the interwebz make fun of me for using my old AOL email address that I first got back in the early 90’s.  “Old man,” they call me. To the cutting edge folks, it proves how out of touch I am with technology. It could only be worse if I used a Compuserve email address, since AOL, at least, still exists (and, for those who don’t know) and is making a comeback.

But its not just because I have a really cool early AOL email address (SHGLaw). It’s because I have no interest in changing an address where I have been readily found for decades.  Would you change your phone number for kicks?  The point is that people who want me can reach me, and that I get the emails I need to get.  Whether somebody thinks its a cool address or not doesn’t concern me.

Whether you change email addresses of necessity, such as changing firms, or like a fashion accessory, the duty to keep it current with the court rests on the attorney.  It won’t help to have the coolest email address ever if orders are sent to an old, dead one. Trust me that your clients won’t be impressed. Nor will your malpractice carrier.

P.S. And it wouldn’t hurt if the government brought one of the worst mutts of a system, ECF, into the new millennium. It was outdated when it first arrived, and it’s now a relic of technological incompetence.

H/T Michael Bachrach

Who really don’t like to help people who need them very much. Unless they respect their authority.



Somebody gets to go home without getting hit. Can you guess who?

There is a long list of people who Teri Buhl, self-proclaimed investigative journalist, says she’s going to sue. It looks like she’ll have to add one more to the list.  The problem started when her public twitter profile stated that her twits were not for publication. It headed south from there.

Mark Bennett started the ball rolling after  Gideon engaged Buhl on twitter to find out what the heck she thought she was doing by claiming her twits were “protected.” Tim Cushing picked it up at Techdirt, which angered Buhl sufficiently that she demanded a retort, including an absurd smack at Bennett for using the story on his blog “to promote his business,” because, you know, why else would a lawyer blog?.

But Cushing wasn’t prompt enough to satisfy Buhl, so he asked  Jim Romenesko to publish it instead. Mike Masnick at  Techdirt then ripped her a new one, after which Buhl let everyone know, including  Romenesko who did her a solid, that they were all getting sued.

Whew.

The reaction to Buhl has not been kind. Rather than hum a few bars of Mrs. Robinson, pretty much everybody has responded that she’s utterly nuts, and her efforts to salvage her shredded dignity have only gotten her into deeper trouble. She’s posted various comments to other people’s posts, regaling about her greatness as an investigative “jurno” and how she’s beloved by her fans. The fans have yet to appear to back her up, but they’re probably too busy rereading her old articles from when she had a job to waste their time.

All this is a preface to the reason why I hop aboard this out-of-control train.  As others took note of the wreck, they included the initial screen shot of Teri Buhl’s twitter bio, the one that she created and put on twitter for her adoring fans to know who she was and what they could do with her twits.  It included an image of the “jurno” herself as part the bio.

See that sweet yet professional picture of a woman above the name Teri Buhl? Buhl says you’re not allowed. At least not here, because it’s her picture and she hasn’t given me permission to public it. You see, according to the Buhl doctrine of copyright, it’s her picture and nobody can use it. Kinda like her twits, but different.

That it’s part of the subject at issue means nothing. Fair use doesn’t exist under the Buhl Doctrine.  Ironically, she is apparently unaware that  Antonin Pribetic has copyrighted the letter “B,” and is no doubt preparing a complaint as I type. She did not get his permission to use it, like I did.

Which finally brings me to the point of this post.  The  Knight Center for Journalism in America at the University of Texas, Austin, posted about this hotmess, including initially the screenshot above. And then came Buhl’s copyright complaint:

Update 02/07/13: Freelance reporter Teri Buhl contacted the Knight Center and requested the pictures in her Twitter profile be removed from the story, stating that the images are copyrighted and the Knight Center – along with the journalism websites Poynter.org and JimRomenesko.com – do not have permission to publish them. The Knight Center has removed the photos from the screenshot from her Twitter account per her request.

Fade to black.  This is the lesson for budding journalists in Austin.  Capitulate. Somebody complains? Screams “copyright”!  Fade to black.  Don’t say no. Don’t react with a chuckle and passing mention of fair use. Don’t teach students that a “jurno” doesn’t succumb to threats, no matter how absurd and contrary to the law. Nope. Fade to black. It’s so much easier and less risky.  Journalists wouldn’t want to take any risks, after all.

Buhl offers a laundry list of absurd explanations for her bizarre actions, which have given rise to no shortage of hilarity.  But the treatment received at the hands of the Knight School isn’t funny.  In fairness, they aren’t the only ones to wimp out, with  Poynter’s Jeff Sonderman showing a similar lack of spine.  But then, he’s not charged with teaching the next generation of journalists why they’re deserving of First Amendment protection.

While all of this might well strike us, as lawyers, as utterly ridiculous, given that we would expect those engaged in journalism to have at least a working knowledge of the law as it applies to them, it apparently isn’t the case for those who teach it.  Are they clueless?  Do they not use “fair use” in Austin?

Maybe they just offer professional courtesy to Buhl, as one of the tribe, even though they realize that there is no legal impediment whatsoever to the screenshot of her twitter bio, as the core of the story about her insane claim of unpublishable twits.  But if so, then the message to students is be bold when it comes to revealing the awful truth about others, but when it comes to one of our own, fade to black?  This would be too cynical even for me to believe,

So if it’s not hypocritical circling the wagons as a courtesy to one of their own (whether with or without free donuts), then it’s just plain old capitulation.  Not a good lesson for the next generation of a group upon whom we depend for our information, knowledge and understanding of what is happening in our world.  All the news that’s fit to print, unless someone tells them not to and threatens them with a lawsuit. Then, fade to black.