My friend, the late John Barry, lived well off the royalties of the James Bond theme, as well as the many other brilliant scores he wrote. They were an integral part of a fantasy loved by Americans about a British spy who bore the code numbers 007. The numbers meant he had a license to kill, yet no one refused to watch the movies or protested Cubby Broccoli’s productions or picketed Ian Fleming’s home.

In real life, the concept was so easily embraced. When it was learned that the government used drones to kill people suspected of terrorist ties, including American citizens, away from any battlefield, there was a demand to know what basis the government claimed to take such action.  How could our government justify killing people this way?

The New York Times and the ACLU sought answers via the Freedom of Information Act.  The government refused to provide them, and a suit followed.  The consolidated actions ended up in the hands of Southern District of New York Judge Colleen McMahon, who issued a remarkable decision. 

Plaintiffs in these consolidated actions have filed Freedom of Information Act (“FOIA”) requests with the federal Government in order to obtain disclosure of information relating to a particular tactic that is admittedly being employed in the so-called “War on Terror” – the targeted killing of persons deemed to have ties to terrorism, some of whom may be American citizens.

Broadly speaking, they seek disclosure of the precise legal justification for the Administration’s conclusion that it is lawful for employees or contractors of the United States Government to target for killing persons, including specifically United States citizens, who are suspected of ties to Al-Qaeda or other terrorist groups.

It wasn’t long ago when the American public learned how the government rationalized the torture of human beings, based upon the DOJ’s  John Yoo memo to then Attorney General Alberto Gonzalez advising that the use of torture by the CIA was perfectly lawful under an expansive view of presidential authority.  Few outside of government shared this expansive view or found Yoo’s explanation availing. But it served its purpose, despite its inability to withstand scrutiny.

Once the memo became public, however, nearly universal condemnation followed. Once burned, the government wasn’t about to let that happen again.

The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men. The Administration has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions. More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable “hot” field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated. It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty.

Clearly, Judge McMahon appreciated the magnitude of the issue before her, the legality of the America government targeting and killing people, citizens included, because it decided to do so. Clearly, she appreciated that “intelligent discussion and assessment of a tactic” such as this demanded public understanding of the government’s claim of authority. Clearly, this conduct came at “great cost.”  Judge McMahon got it.

And yet, she held there was nothing she could do.

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules – a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. But under the law as I understand it to have developed, the Government’s motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied…

The opinion sends two messages, maybe more.  The first is that the government has chosen to conceal from the American people its rationale for this monumental grab of power to kill at will.  Project all you want. Complain all you want. Argue the legitimacy of a government of laws, not men. The invocation of executive privilege ends the discussion. The government of the United States of America has told it citizens that they cannot be trusted with the knowledge, and so it shall remain a secret.  It’s enough that the government says it’s “perfectly lawful.” Now get back to work and mind your own business.

The second message is that to the extent the government revealed information to a United States District Court Judge, who may or may not be sufficiently patriotic to be trusted with government confidences, Judge McMahon was not overwhelmed by the merit of the government’s justification.  The language she used to express the paradoxical situation in which she found herself, coupled with the clarity of her view of the importance of this issue, leaves little doubt that she was unimpressed.

Judge McMahon could have issued an opinion that, without spilling any beans, left us with the clear impression that firm grounds existed for the government’s assertion of power. She didn’t. She did just the opposite, leaving us with the clear impression that one of the most dubious claims of lawful justification ever employed by the government should have been made public but was instead concealed, thus precluding any intelligent debate over its propriety.

And that is where it will die.  But what the heck, there’s a new James Bond movie out and I hear it’s doing gangbusters at the box office. Go enjoy.

H/T Brian Tannebaum

The joys of computer assisted research and eDiscovery have a new member of the family: forfeiture.  Via David Axe at  War is Boring :

“FOR IMMEDIATE RELEASE”

Dec 20, 2012

Artist’s Advance for Graphic Novel Seized by Office of Foreign Assets Control — OFAC

Brooklyn, NY — Tim Hamilton, artist of the Eisner-nominated adaptation of Ray Bradbury’s Fahrenheit 451, had his advance payment for the upcoming graphic novel ARMY OF GOD, a non-fiction telling of Joseph Kony’s activities in the Congo, seized by the OFAC under suspicion that the money was being laundering for a terrorist organization.

***

The federal banking authority, which monitors every wire, foreign and domestic, apparently seized the funds due to the title of the book, ARMY OF GOD, which threw up a red flag.

Stercus Accidit. Hurricane Sandy swept through Red Hook, and contrary to the neocon pundits on twitter, it wasn’t Obama’s fault. Or Police Commissioner Ray Kelly’s. Or District Attorney Cy Vance’s. Sure, they might have chosen a more protected location than Red Hook, right on the water in Brooklyn, but it was a great choice but for Sandy.  The days of keeping evidence in a hermetically sealed mayonnaise jar are over.

And so the evidence is ruined or otherwise unavailable.

Perched on a narrow crook of land jutting into New York Harbor, the Erie Basin auto pound and evidence warehouse seems a logical place to store hundreds of seized cars, thousands of guns and 9,846 barrels of evidence containing sensitive DNA material.

As Hurricane Sandy lashed the city, the surge breached the warehouse’s roll-top doors and hurtled hundreds — perhaps thousands — of its barrels into the wet muck. The storm wreaked similar havoc at another Police Department warehouse by the water, along Kingsland Avenue in Greenpoint, Brooklyn.

In at least six criminal trials in recent weeks, a police official has had to testify that evidence was inaccessible, but still existed, said Paul J. Browne, the chief spokesman for the Police Department.

Evidence for a coming rape trial in Manhattan — the so-called rape kit — had been stored at the Greenpoint location, the defense lawyer in the case said. The lawyer, Edward V. Sapone, said prosecutors told him that the kit might have been damaged in the storm.

Mr. Sapone said he had been concerned because he believed the evidence stored inside would help prove his client’s innocence.

It turned out that one element in the kit — a pubic hair — had not been at the warehouse during the storm because it was being tested.

Mounds of waterlogged evidence bags continue to cause headaches in New Orleans more than seven years after Hurricane Katrina, pointing to the difficulty of preserving DNA evidence after flooding.

“If you don’t keep it properly stored, you’re affecting somebody’s life,” said Robbie Keen, who directs a federally financed DNA project in New Orleans that is still trying to recover evidence.

Ms. Keen said some of the damaged biological evidence from Hurricane Katrina had been successfully tested, but some had been lost.

This doesn’t appear to offer much by way of answers, though it raises some interesting questions: Are formerly waterlogged DNA samples really still viable, or are they making do with samples that would otherwise be deemed useless or tainted?  Worse still, as it’s seven years later, what of the defendants who are hanging out awaiting word of their evidence?  And this is where New York is getting its wisdom?

Steven Banks, attorney in charge of the Legal Aid Society called this a “recipe for wrongful convictions” and plans to appeal the admission of testimony about lost evidence in the Castro case.  But it’s just one of potentially thousands, and that’s an awful lot of room for bad things to happen.  Banks notes that pleas are being offered in cases where the evidence is gone.

In New York State, evidence in criminal cases is not presented until a trial begins. And if a plea bargain is offered and accepted beforehand, it is not presented at all.

“The government may well be fashioning plea deals based upon the lack of underlying evidence,” Mr. Banks, of Legal Aid, said. “We can ask if it’s there, but they don’t have to tell.”

It’s unclear why Banks says this, but it strikes me that Brady requires the prosecution to inform the defense that it cannot produce physical evidence at trial, and that failure to do so would render a plea involuntary, unintelligent and unknowledgeable.  But then, if courts are willing to admit testimony about evidence in lieu of the evidence itself, it’s hard to imagine any judge will get any more worked up about Brady violations than they did before.

Once again, the criminal law blawgosphere has proven itself singularly vital and alive in an internet filled with self-serving promotional, worthlessly self-aggrandizing, and the empty and pointless murder of words.  Not that we don’t have our share of scoundrels, but they don’t hold a candle to the excellence demonstrated by the nominees for this year’s Jdog Prize.  And I couldn’t be prouder than to be a small part of this group.

Each year, the blawgosphere becomes increasingly crowded, as newcomers are sold on the proposition that throwing crap against the screen will bring them wealth and prestige.  While they don’t tend to last long, and leave their dead flotsam in their wake, they suck much of the air out of the blawgosphere during their short time pretending to be a blawger.  Don’t think I don’t notice your twitter bios proclaiming you to be an important blawger and motivational speaker, even though you’ve written nothing of merit and your last post was 14 months ago.

But the nominees here produce.  They produce ideas, discussion, thought that illuminates others.  Their writing makes other see the joy and misery of the criminal justice system. They do so with poetry and humor, with feeling and thought.  They make every reader better for having spent a few minutes of their lives reading their words.

Having traversed the blawgosphere to see what other practice areas are producing, I can say without hesitation that there is no legal niche that produces as much quality writing as criminal defense lawyers.  We should be proud of ourselves for this.

The downside, for me, is trying to pick the one post of the many that stands out.  This year, the “old faithful” have once again provided exceptional work.  Two prior winners, Jeff Gamso and Gideon, in particular have written post after post worthy of recognition. 

A relative newcomer, Appellate Squawk, has demonstrated the ability to consistently use humor to skewer the foibles of the system and its robed gatekeepers.  The difficulty of doing this can’t be understated.  While humor has long been recognized as an effective means of providing biting commentary, it’s incredibly difficult to maintain.  Yet the Squawk has proven itself up to the task, and has gained a loyal and appreciative following as a result.

But this year’s winner is a young lawyer who has allowed us to share in his maturation as a criminal defense lawyer, beginning when he was a complete rookie and growing into a hardened and effective advocate.  His posts have let us be a part of his growth, as naive ideals gave way to the ugliness and unfairness of our duty, and yet how he (and we) persist despite it.

This year’s winner is particularly dear to me, as so much of what he’s experience reminds me of my early years as a criminal defense lawyer.  His posts bring me back to my own epiphanies, the successes and failures that mold a war veteran.  He’s done the same for many others, as well, and serves as an exceptional role model for the many new lawyers just beginning in this unpleasant enterprise.

And so, I am thrilled to award the  4th Annual Jdog Memorial Best Criminal Law Blawg Post to Matt Brown at  Tempe Law Blog for this post:

While I suspect Matt has moved well beyond any need for validation of his work, I nonetheless hope he will accept this badge as a token of his enormous contribution to the blawgosphere, the excellence of his writing and recognition of the best criminal law blawg post of 2012.

My deepest appreciate to the lovely and talented  Amy Derby for again creating the winner’s badge, and thus saving me from the humiliation of feebly attempting to put something together that would never be as good as what Amy does.

On the final day of 2012, Keith Lee at  An Associate’s Mind decided to fill the gap in UNC lawprof  Bernie Burk’s grasp of the definition of the “law school disaster.”  Burk, whose bio at the UNC law school’s website, graduated first in his class at Stanford Law School in 1983, should have been able to figure it out on his own. It’s been the subject of a great deal of discussion. But apparently, something stood in his way.

It seems that Kyle P. McEntee, Patrick J. Lynch, and Derek Michael Tokaz, the founders of Law School Transparency, released a paper entitled “The Crisis in Legal Education: Dabbling in Disaster Planning.”  Burk, posting at The Faculty Lounge, an insular blog where lawprofs can chat amongst themselves without the intrusion of either the Philistines or Luddites, ripped them a new one.

So I was intrigued to look into the latest contribution to the law-school reform discussion authored by LST’s co-founders and its research director … What a disappointment.  Commentators with the public stature of Law School Transparency should not “dabble.”

I do not mean to say that three twenty-somethings who have essentially never practiced or taught law have no place explaining how to assemble a curriculum or run a law school so that its graduates will be both prepared to practice and attractive to legal employers in the most difficult legal job market in American history.  I do mean to say that, if you don’t know how to do it and you don’t know how to teach it, you really ought to do your homework so that your prescriptions are meticulously grounded in empirical experience and coherent argument.  Sadly, you won’t find much of either here….

Some friends and colleagues who read my lengthy post on Law School Transparency’s recent article on law-school reform gently suggested that I should stop publicly haranguing myself on the bus before people began to worry about my stability (those who read the post will understand the reference).  Kyle McEntee of LST also contributed a measured and thoughtful Comment of the kind that I had come to value and respect from him and his organization, for which I thank him. 

I remain uncomfortable with both the form and the substance of LST’s proposals, but I also recognize the merit of the friendly advice I’ve received that there are more constructive ways to contribute to this important discussion than the one I chose.  So I’ll work on it and try again in a few days.

Kyle McEntee of LST also contributed a measured and thoughtful Comment of the kind that I had come to value and respect from him and his organization…

Q: Then why are you being so harsh with LST?  You’ve really been kind of a jerk, you know.

A: Well, I am being harsh.  Here’s why: LST has (in my opinion) distinguished itself since it came upon the scene by its mostly measured and thoughtful idiom, and its basic confidence in the power of information to influence rational behavior and level the playing field.  The article I just criticized is an abrupt and in my opinion unwelcome departure from a style of public discourse that I genuinely admire, not only because it is predominantly engaged and positive (though it is), but because it is—again, in my opinion—effective.   Tossing around the rhetoric of “disaster” and “crisis” without meaningful effort to define the threat, couched in empirically vacuous and occasionally self-contradictory pronouncements, reverts to the toxic style of discourse sadly prevalent in current affairs, and doesn’t advance anything other than perhaps LST’s public profile.  There are more wholesome and productive ways to achieve that end.  In my opinion, LST should hold itself to the same standards of data-driven rationality and full disclosure to which it rightly holds the institutions it criticizes.

Unlike McEntee, some punk kid who “never practiced or taught law,” I have done both, which leads me to wonder, who the hell does Burk think he is that he is entitled to sit high in his Ivory Tower and condescend to recognize the complaints of McEntee and the tens of thousand of former law students, now debtors, working the cash registers of big box stores? Keith provides your empirical definition:

First Job Outa Law School

Not proven to your satisfaction?  Not conveyed with the niceties that the kid who graduated first in his class at Stanford demands of the groundlings?  Too fucking bad.*

Your friends were kind enough to “gently” suggest that you take down your Faculty Lounge post that marked you as douche.  Need an empirical definition of douche too? 

What these kids are experiencing is real.  How blind can you be not to notice that those same law students who undertook huge, and unjustifiable, debt to hear your sweet, dulcet tones in the classroom, are now facing personal ruin?  Sure, they bear fault, as do I and every other practicing lawyer who left academics to their own devices until the shit hit the fan in 2007, when we first came to the realization that greed and self-serving blindness in the legal academy had brought the future of the legal profession to the edge of the precipice.  And you don’t care for the way it’s being discussed?  You are only willing to engage if the discourse meets your expectations of civility?  Because you are so brilliant and genteel?

Half the time, I get a headache trying to figure out the underlying sentiment of scholarly discourse, the vacuous language designed to be so very subtle as to damn with faint praise.**  So much could have been achieved if the delicate sensibilities didn’t get in the way of substance.  But even those lawprofs who told you that you were a jerk couldn’t bring themselves to speak out in clear, unambiguous terms.

So let me explain something, from the perspective of a guy who spent 30 years in the trenches where real people (we call them clients (and they are the only reason we, and even you, though by a circuitous route, get paid) cry very real tears. Some things are real. Misery is real. And you should get down on your knees and thank your lucky stars that you were able to enjoy a remarkably well-paid life for someone so dismissive of the misery he is partially responsible for causing and perpetuating.

You don’t care for the uncivil tone of the complaints?  Who cares. You’re lucky they didn’t storm your scholarly office and string you up by your tongue. Now that would have been uncivil, and well deserved.

* While I generally avoid the use of curses, it struck me as appropriate to use them in this post. Screw the effete tone that pleases the professoriate. It’s time to deal with the misery caused by law schools, regardless of how it’s expressed or whether it meets with the approval of academics like Bernie Burk.

** Subsequent to posting this, a clinical lawprof suggested that I note, for the sake of those unaware of the distinction, that they remain firmly planted in the real world of lawyering rather than the theoretical (and are frowned upon by the “real” lawprofs for it).  Unlike those lawprofs who refuse to engage except on their terms, the clinical profs aren’t afraid of less-than-civil discourse and are just as happy to confront the substance of real-life problems in academia as they are to address the real-life problems of their clients in the trenches.

Update:  North Carolina lawyer  Damon Chetson ponders whether this Bernie Burk could be the same Bernie Burk crowing in Carolina Law magazine about how UNC Law is so fabulous that every graduate gets a job?

But back to Burk, who does a little dabbling of his own in Carolina Law, a glossy magazine designed primarily for UNC alumni and donors to the law school:

“Many more prestigious schools, including Carolina, still see nearly all their graduates employed within nine months after graduation.”

Is Burk correct?

No. Law School Transparency reports that only 68 percent of UNC’s class of 2011 was employed in full-time, long term legal jobs. About 1 in 5 graduates did not have a full-time, long term job of any sort nine months after graduating from UNC.

Chestons concludes:

Apparently if you use stark language to describe the nature of what is a real, lived crisis for tens of thousands of law school grads, you’re not contributing to the public discourse in a manner that meets Bernie Burk’s high standards.

But if you overstate the employment results for recent grads of UNC Law School… you’re Bernie Burk.

It seems that shilling for one’s employer in law porn has its problems as well. If forced to chose between civil discourse and honesty, the latter would win for me.  If you picked the former, well…you’re Bernie Burk.

While the ABA Journal is busy checking out blogs in bikinis, it’s time for the Practical Blawgosphere to once again honor the dedicated efforts of criminal law blawgers in bringing illumination to the substance of criminal law.  As explained last year,

This is no beauty pageant, but a chance to accomplish two things.  First, to open the door to the best substantive content on the subject of criminal law, and second, to expose the excellent efforts of the best group of blawgers to people who might not otherwise have seen it.

• Anybody can “nominate” a post for the honor, including their own.  SJ posts are off limits.  You can nominate them anonymously, with great fanfare, just by name or with a detailed explanation of why you think a post is the best.  It can be a post from a criminal defense lawyer, a prosecutor or a non-lawyer, provided it’s subject is criminal law.  It can even be a post by a lawprof. You can nominate up to five posts.
  
• Nominations can only be made in the comments here. No emails, phone calls, text messages, fruit baskets or lovely cards with deeply personal messages.
  
• For this contest, and for this contest only, I will allow links to be included in comments to the posts (not the blawgs, but the actual posts) nominated.  Spam links will be treated harshly.
  
• 
  

  This is a chance to think back over the year and give everyone some great posts to read, to ponder, to discuss and maybe even change some minds.

And just to be clear, it doesn’t matter if you’re brand-spanking new or an old hand, a dear friend or a complete unknown.  This is all about substance, not popularity, tribes, networking, branding or bonding.  If I smell anyone trying to use this as a marketing opportunity, they’re out of here.  Spam = banned.  If I smell anyone trying to use this for inappropriate purposes, it will end up backfiring. Trust me. Some have even called me abrasive when dealing with impropriety in the comments.

I invite anyone and everyone to offer the best the blawgosphere has in criminal law.  Spread the word, and let others know that this is their opportunity to show their stuff, get a backlink, and let the rest of the blawgosphere know what they’re doing.  

Nothing here at Simple Justice is eligible, so don’t waste time with it.

The winner will be announced on New Years Day.

Judging will be entirely on my shoulders, and I will be as arbitrary and capricious as I please, so there’s no complaining about the choice.  That said, I will do my best to select the blawg post that best reflects our finest work, our highest tradition, our deepest thoughts and our best purpose in putting words on a computer screen.  For anyone who doesn’t trust me to be fair, find a better offer elsewhere. 

In one of the truly rare op-eds that challenge a fundamental precept, Georgetown lawprof Louis Seidman argues in the  New York Times that our adoration of the Constitution is, well, dumb.

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Ancient document from a time long since gone?  But without it, won’t chaos and tyranny ensure? Seidman relates the American history of constitutional disobedience, showing that it’s not as if we’ve stringently adhere to the old gal, and yet we’ve survived.

IN the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

Of course, on those occasions when we, as a society, decided that extreme situations demanded turning a blind eye to the Constitution, we didn’t always grow and prosper. Japanese internment camps in World War II wasn’t such a high point. Many would argue that Schechter Poultry did us far more harm than good, and it’s not at all clear that the Alien and Sedition Act was our finest hour.

Seidman isn’t suggesting that we throw it all away, inexplicably arguing that we should retain the rules he likes while discarding the ones he doesn’t, making himself the bar for neo-constitutionality.  For the rest, he contends that we will continue those institutions that society accepts as viable.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy…

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences. No one can predict in detail what our system of government would look like if we freed ourselves from the shackles of constitutional obligation…

While there is some merit to the arguments that we are hardly as devoted to constitutional fealty as we pretend, and that the strain of trying to shoehorn solutions to current problems into a constitutional paradigm stretches reason to the breaking point, Seidman fails to appreciate the big picture.

As a parent, we dictate rules to our children.  We tell them not to play with matches, or jump off the roof to see if they can fly.  When the younguns demand to know why, we respond: Because we say so. They hate that. Always have. But to keep them from doing boneheaded stuff, we don’t open up our every decision to debate. 

At the same time, we know they will test our boundaries, and expect them to do so.  We hope that the basic rules we instilled in them will serve as the parameters within which they will function, so that when they push the envelope, they won’t do anything too dangerous, too harmful.  We know we can’t watch them every second of every day, and so we trust that we’ve given them sufficient guidance to protect them from the worst.

The same is true of our Constitution.  It provides the fundamental rules within which our society is supposed to function. It’s not that regimes won’t push the envelope, test the edges of those rules or, on rare occasion, run full speed toward the cliff when someone believes it has to be done.  It’s that we have a bottom line, a minimum, by which to judge such actions.

Without it, would we devolve into tyranny?  Maybe. It’s happened to others, and it can happen here as well, since the government has a lot of weapons and whoever has the finger on the button gets to say when those weapons get used.  Yet a poetic piece of parchment allows for a regime change every four or eight years without a single shot being fired. This is an astounding thing.  Ponder it for a moment and appreciate its uniqueness in the history of mankind.

While it’s true that some of the rules may not be a whole lot better than their alternatives, it’s like the basic rule of the road, keep to the right.  The right is not inherently better than the left, but without it, we would crash into one another.  It doesn’t matter so much which side is chosen, but that a side be chosen.  The same is true of our Constitution.

Edit: I regularly wonder what would happen if the Bill of Rights was put up for popular vote today. I’m quite certain that the Fourth would never pass, even if the Second was relatively safe.  As for the Fifth and Sixth, I doubt they would get a lot of support as currently written, and the First wouldn’t stand a chance.  One thing the Constitution does remarkably well is protect us from the tyranny of the majority, even though many would disagree.  Without it, the notions of free speech and equal protection would be long dead, rather than merely crippled as they currently exist.  Remember, bad as things may be, they can always be worse.

And frankly, it’s held up remarkably well.  Not perfect, but even now, as we question and challenge the legislative decisions of the past month that ignore the rights preserved by this ancient document, we have something to turn to so that we can call out impropriety and fecklessness.  As the minimum standards to which all acts of government are supposed to adhere, it is still relevant and well-suited to our demands for the preservation of our rights from an overbearing government.

Sure, it can sometimes feel as if it’s strangling us, particularly for those people whose expectations of government are to caress them and make all their fears disappear.  But as the basic rules for the creation of a political system that can withstand the worst mankind has to offer, it’s proven pretty damn effective.

The Constitution?  I’ll keep it.  Now if I can just get the government to love it as much as I do.

Note: This is not an end-of-year review post, reflecting on lessons learned in 2012. Given the date, and the title, it might have been, but it’s not. Sorry if you feel misled.

While abuse of the “do it for the children” rationale is rampant, there are times when it is precisely appropriate.  At those times, the irony of needless initiatives enacted under such appeals to emotion moving forward at lightning speed while worthwhile initiative languish becomes even more pronounced. This post reflects one of those sad ironies. 

From Newsday:

In 2003, Rep. Peter King (R-Seaford) introduced the Cameron Gulbransen Kids and Cars Safety Act, named for a 2-year-old Woodbury boy whose pediatrician father backed over him in their driveway. Five years later, Congress passed the measure with strong bipartisan backing, and President George W. Bush signed it in 2008.

But almost another five years later, the standards have yet to be mandated because of delays by the U.S. Department of Transportation, which failed to meet a Feb. 28, 2011, deadline to issue the new guidelines to car companies.

Greg Gulbransen, an Oyster Bay pediatrician, back over his 2-year-old son because he didn’t see him behind his car.  I know Greg. Dr. SJ knows Greg.  He was my children’s ped. An excellent doc and a good man. This was the most heart-breaking event in his life. 

While it might have been overreaching to demand a cure to this tragedy if it was just one man’s mistake, it turned out to be a fairly pervasive problem.

The government estimates such accidents kill 228 people a year — 110 of them young children — and injures another 17,000.

At the same time, the auto industry already had a ready solution in hand, in use, and available: Rearview cameras.  The chief complaint against the cameras was cost.

The NHTSA estimates that making rear cameras standard on every car would add $58 to $88 to those already equipped with dashboard display screens, and $159 to $203 for those without them.

There were two chief arguments favoring the mandate, that it would resolve a common problem that impacted many people, some of whom were small children who lost their lives.  And secondly, car makers were more than happy to put rearview cameras in vehicles as selling points, as people desired them and they made the cars more appealing to potential purchasers.

The flip side of the problem is that cars that would sell regardless of cameras didn’t need them to close the deal, and so car manufacturers could safely leave out the cameras without a fear of losing sales.  The money issue cut both ways, where the inclusion of the camera cost a bit, but was worth it if it sold the car, but if not, then cutting cameras out of the car put that much more in the manufacturer’s pocket.

When Dr. SJ bought her first Prius, it came standard with a rearview camera. Back then, Toyota wasn’t sure whether it’s hybrid experiment would work, and wanted to beef up the safety features of the car to make it as appealing to buyers as possible. 

When Dr. SJ bought her most recent Prius, the camera was gone, though it could be added in for a ridiculous amount of money. Toyota’s Prius was a firmly established model, and they left out everything they could get away with this time around. No need for frills when your model is hot.  Even without the rearview camera, the car cost a whole lot more this time around.

As we wave good-bye to 2012, we come up to the ten year anniversary of the law mandating rearview cameras, and yet it has still not been implemented.

But almost another five years later, the standards have yet to be mandated because of delays by the U.S. Department of Transportation, which failed to meet a Feb. 28, 2011, deadline to issue the new guidelines to car companies.
Transportation Secretary Ray LaHood has changed that deadline three times — promising in February that the rules would be issued by year’s end.

“By year’s end” would refer to this year. It didn’t happen.  The explanation is decidedly unavailing:

The National Highway Traffic Safety Administration, charged with completing the new standards, declined requests to discuss the delays.

Spokeswoman Karen Aldana said the agency would not comment while the rule-making process was ongoing, but asserted it was on track to meet LaHood’s latest cutoff date.

In his February letter to lawmakers, LaHood said his agency needed more time for “research and data analysis” to “ensure that the final rule is appropriate and the underlying analysis is robust.”

Ten years without anything, and LaHood’s best argument is that they want the “final rule” to be “appropriate”?

They pass laws criminalizing speech about bullying, to bolster the self-esteem of delicate teacups, in hours.  They pass laws authorizing the warrantless search of electronic communications, so that law enforcement is never forced to suffer the indignity of seeking a warrant, without delay.  Ten years later, there are no regulations mandating the auto manufacturers include rearview cameras that they are more than happy to throw into vehicles at the request of the marketing department.

As much as the law can’t create the perfect world that so many want to believe it can, this is one fix that the law can easily mandate, and it will save the lives of children.  And it’s as dead today as Greg Gulbransen’s beautiful 2-year-old son Cameron. 

At Crime and Consequences, Bill Otis tries to sneak in through the back door of the Webster, New York,  murder of two firefighters on Christmas Eve by raising the  two women who purchased guns for the shooter, a convicted felon who would be ineligible to buy guns for himself.  It’s a sneaky move, considering that he never mentions the impetus for his post until a link in the last line of his post.

Rather, the post begins:

Liberals and, especially, libertarians, have unending heartburn about imposing criminal punishment for non-violent, regulatory offenses.  One particular provision that gives them fits is the federal false statements statute, 18 USC 1001, which makes it a felony for a person to make a false or deceptive statement  to any department or agency of the United States in any matter within the agency’s jurisdiction.

At Real Lawyers Have Blogs, Kevin O’Keefe relates a story from former ABC News reporter, now Mashable editor, Andrea Smith about the Today Show :

It’s not OK to know nothing about social media or the Internet anymore. It’s especially not OK if you are an anchor for a major network TV news program.

This happened after a segment about Randi Zuckerberg’s private family photo being shared publicly. Today’s Willie Geist, Savannah Guthrie and Natalie Morales — three TV journalists at the top of their profession — laughed about their lack of knowledge about Facebook, Twitter and privacy on social media.

It was meant to be cute, but it came off as plain dumb.

As Kevin notes, the same is true for lawyers.  While Kevin may be a tech evangelist, I’m a tech curmudgeon, and yet there is absolutely no doubt that he, and Andrea Smith, are correct. Five years ago, “grown-ups” laughed about kids texting and their silly acronyms. or their incessant checking of their Facebook page as if those friends were real friends.  We were so much more mature, and they were so childish.

For many, lack of knowledge is a badge of honor, to be above fads and trends.  And indeed, there remains no human reason why writing “u r kewl, roflmao” should ever be part of the lawyers lexicon.  But ignorance of the tools of the trade, or a deeply entrenched element of modern society, isn’t cute, or funny, or a badge of honor.  It’s just ignorance.

The internet is here, and its pervasiveness in our society is both certain and growing.  I may not care for much of it, and find fault with many of its pieces, but by no means does that suggest I deny its existence, importance or relevance.

The problem is that for many who have chosen to ignore it over the past decade, trying to understand it now is extremely difficult.  It may be intuitive for digital natives, but it’s nearly incomprehensible to someone who shied away from touching a keyboard up to now.  The problem is that your one-time cute reluctance now marks you as not merely a Luddite, but a moron. Seriously, the kids think you’re brain dead.  More importantly, your clients do too. It’s just not funny.

There is a huge middle ground between the person who waits on line for the next iteration of the iPhone and the person who won’t use a phone without a coiled cord.  You don’t have to be cutting edge, but you do need to have a clue.  Not only for your professional existence, but as a matter of ethical responsibility, as clients are entitled to expect you to be sufficiently familiar with the tools of your profession to use them to the clients’ advantage.

At The Legal Whiteboard, Bill Henderson had a similar epiphany when it came to lawprofs, where he asked the question “How Do Law Professors Learn About the Intersection of Law and Technology?”

Here is my best guess:  We show up at the intersection and we listen to lawyers, judges, regulators and vendors talk about the issues of the day.

Earlier this month, there was a major conference in Washington, DC on developments in the world of electronic discovery…Lawyers and clients can no longer cope with the rapidly growing volume of electronically stored information (ESI).  Going forward, technology and nonlegal expertise are a permanent part of the legal industry.

Nearly 10 years ago I showed up at the Indiana Solo & Small Firm Conference.  I was there to gain some basic insight for a course I was putting together called “The Law Firm as a Business Organization.”  As the organizers will tell you, a law professor had never before ventured into their conference. What was their reaction?  A very kind, “It’s about time!”  I was immediately drafted onto the organizing committee and in subsequent years conducted two major surveys for the ISBA Solo & Small Firm Section.  To this day, the lawyers I met at that first Solo & Small Firm Conference remain an important part of my professional network.  Ironically, several years ago the small firm crowd was issuing a clarion call on the importance of law and technology — for them, it was all about survival.

Bill goes on to suggest that anyone interested in technology should consider attending LegalTech in New York.  Before you rip him a new one for suggesting a banal trade show as a learning opportunity, bear in mind that Bill is one of a handful of lawprof evangelists seeking to push the professoriate out of the Ivory Halls and into the real world in the hope of teaching law students what they really need to know to function as lawyers. And they need to know more than how to text and update their Facebook status.

For those who have studiously ignored technology for the past decade, in the misguided expectation that it would go away and we would be back to looking up precedent in ALR 3d, those days are gone. Sorry, but they are. Society has moved on. The law has moved on.  And if you haven’t paid attention, you are working at significant deficit and doing yourself and your clients great harm.

The problem is that lawyers, as much if not moreso than TV personalities, haven’t paid attention, and were proud of themselves for their refusal to follow the trend. Now, catching up is going to be terribly difficult. There are a zillion things to learn, and few of them will come easily.  But you have no choice.

The internet and the digital world is here to stay, and only going to become increasingly complex and entrenched in our profession and society.  You can pick and choose which tools you consider viable and necessary, but you have no choice to remain cute and “plain dumb.”  If you haven’t started yet, start now. It’s only going to get harder, and you will only find yourself farther and farther behind, until you finally realize your desperate need to catch up.