Many websites and blawgs will be blacked out today in protest of laws pending before the House and Senate, the Stop Online Piracy Act and the Protect IP Act, SOPA/PIPA.  I’ve decided not to go dark in protest, while websites such as  Wikipedia and Reddit, focal points on the web, bring home the point that these laws threaten the existence of the internet.  Being a mere speck of dust on the periphery of the web, I hope to add more through commentary than blackness.

Unlike others, I am not a believer that information demands to be free, in the sense of copyright being an archaic concept and infringement an entitlement.  I believe that people who create content are entitled both to own it, monetize it and prevent others from stealing it.  Yes, stealing it.  If someone else created it, then it’s not yours to do with as you please, no matter how much you want to or think you ought to be allowed to.  If you want content, create your own.

But believing in the virtue of protecting the creation of content does not, by any stretch of the imagination, mean that these shockingly overbearing laws are the means by which enforcement of content ownership should be protected.  The internet has created innumerable problems with enforcement of copyright, with servers far away delivering content to any computer for the asking.  It’s inadequate to ask nicely that people not steal. 

Yet the answer to this problem isn’t to wield a hammer so large and powerful that it will undermine the internet, shut down upon demand and without recourse any website, no matter how large and significant or small and inconsequential.  Worse still, the hammer is placed in hands so untrustworthy, so self-serving and manipulative, that the potential for damage to digital society is beyond anything imaginable.

There was a world before the internet.  Many of you can’t imagine it, and dread the notion of returning to it, but it was there, and it wasn’t nearly as awful as you might think.  Yet, it’s over.  We live in a digital world now, and there is no turning back, any more than we could return to a world without electricity.  The vitality of that world is undeniable; it’s the engine the drives almost everything we do.  That a handful of companies, and an august group of elected officials, believe they can harness it, control it, limit it, is likely the most dangerously foolish bit of arrogance possible.

There are graver injustices in the world than SOPA/PIPA, but there are few attempts to make law that will be more fundamentally destructive to society.  The internet is bigger than any company, and country, even the Exceptional United States of America.  The internet is more fundamental to our existence than anything else in our culture.  Aside from food, water and air, it is basic to our lives and continued existence.  It didn’t have to be this way. We could have lived quite well without it. But now that it’s here, not that we’ve tasted and lived through it, there is no turning back.

The world wide web is not something to be controlled.  It is bigger, and more fundamental, to society than anything we’ve ever known.  Perhaps our government is emboldened by our willingness to be herded like sheep at the airport, or to be made to stand against a wall upon command of armed men.  But these affronts pale in comparison, unfortunate as that may be. 

We may suffer silently the indignity of transitory attacks on our freedom because we believe that it will be over quickly and we can move on.  There is no moving on when the internet goes dark.  Close down a website by unilateral fiat and you will unleash a backlash the likes of which society has never before seen.  You cannot take away the air, the food, the water, and expect no one to care. 

This is greater than any nation, no matter how powerful it believes itself to be.  The interests of companies in protecting their content, to protect their revenue, is so utterly puny in comparison to the storm these laws will cause.  The myopia of such insignificant interests believing they can control the internet will wreak havoc around the world. The people in power, and behind the power, are full of their self-importance, their ability to rule us to protect their petty interests. Once they realize they have awoken a sleeping giant by pushing the people beyond their breaking point, they will be forced to come to grips with the realization that they have finally pushed too far.

The title of this post is a Latin maxim meaning, “that which I approve, I cannot disapprove.”  Should the elected officials of this nation fail to grasp the damage they are proposing to unleash upon society, they will never be able to undo the harm that will follow.  They will never be forgiven. Their arrogance will not be forgotten.  It will be too late.

The “it” epithet, Bully, isn’t used in the nouvelle sense here of anyone who hurts one’s feelings, but in the old school sense of taking your lunch money by force, and that’s exactly how Milwaukee lawyer Jeff Zarsynski means it.  His choice, not mine.  Yet it smears all of us.



No doubt this was created as cutting edge, attention grabbing and humorous.  Well, it is attention grabbing.  Like a horrific car crash, or a deadly beating.  My guess is that Zarzynski would argue that it’s meant to be funny.  My guess is that it will appeal to a simplistic and cynical portion of the population, who thinks that this reflects the type of lawyer they want, one who will get them money without regard to anything else, because this is the concept of the system that lawyer advertising tends to foster.

Few lawyers who see this disgraceful foray into the gutter will see themselves in it.  After all, this doesn’t reflect your sensibilities, your vision of who you are and how you want to portray yourself.  Yet, this is only another short slide down the slope of doing anything you have to do to get business. Whether your “tasteful” efforts to do so are better is only a matter of your personal sensibility. As the next hungry lawyer tries to trump you, to steal away the eyeballs you’re trying to hold on to, he has to take another small slide down the slope.

But certainly you would never go there, not so low, not so ugly, not so crude.  Except many do, and do without thinking at all about the ramifications of your marketing efforts on the slippery slope.  Eric Mayer at the  Unwashed Advocate provides a tour through “tasteful” marketing by former prosecutors. 

Of course, these aren’t nearly as bad, according to the people who have made the choice to trade their former office for a quick buck, because it’s become the new normal  The first time a former prosecutor tried to imply he had the ability to “fix” cases with his old buddies, it was shocking and outrageous.  Now, it’s just slimey and banal.

For today, perhaps, Jeff Zarynski’s commercial will offend you and make you wonder how we’ve come to this.  But have no doubt that tomorrow will bring a lawyer who will stoop lower, and who will justify his conduct by his need to make a living.  In all likelihood, the same rhetoric that’s used to rationalize what today is perceived to be less offensive marketing and self-promotion will be used to excuse the next slide down the slope.  And the slide after that.  After all, isn’t it in the public interest to let people know you exist, you care, you can deliver the legal goods their looking for?  Isn’t it your right, no, duty, to spread the word of your availability to represent them.  If you don’t tell them, how will they ever know?

And so what if the next lawyer, the one who undercuts your “tasteful” marketing and steals away the clients you hoped to gain by going one step farther, violates your sense of propriety?  Once dignity is lost, given up for the chance to score a case, the slide becomes less painful and embarrassing.  Once lawyers make the decision to forfeit their integrity, the other lawyers whose tasteful marketing no longer suffices feel compelled to follow suit.  After all, there’s no point to marketing if it doesn’t bring in eyeballs. And clients. 

The need to survive in practice is a powerful one.  It takes time to establish a reputation of competence and skill, and when you have hungry children and a school loan payment due, you don’t feel as if you have the time to wait.  And so you use whatever is at hand.  It’s easy to justify at the moment.  Until you realize that you are one of those lawyers, walking down the boulevard in hot pants hoping someone will stop and pick you up.

That we are in a race to the bottom is no longer in question.  Yet it doesn’t have to be the future of the legal profession, or your future. You have the choice.  Watch Jeff Zarynski’s commercial and ask whether this is the person you are. Or want to be. 

  H/T  Eric Turkewitz and Bob Ambrogi

While not a legal blog, TechnoBuffalo.com may well appreciate some of the issues raised in defense of the First Amendment now that it finds itself on the back end of an Illinois decision compelling it to give up the identity of its source. Via the Chicago Sun-Times :

It’s become the legal and philosophical debate in the digital age of journalism: Does a blogger have the same legal rights as any journalist to protect an anonymous source?

Not in the case of a technology website where “confidential trade secret” information — furnished by an anonymous source — was posted weeks before the smartphone hit store shelves, Cook County Circuit Court Judge Michael R. Panter declared in a written order Friday.

That’s because the website, TechnoBuffalo.com — a mix of tech news, gadget reviews and blog posts — doesn’t qualify as a “news medium” defined by Illinois law, Panter wrote.

The problem is that under Illinois law, a blog, even one with 1 million readers per month which dwarfs many small town (even small city) newspapers, doesn’t qualify as news medium for the purpose of conferring the journalist privilege to protect sources.

State law defines a reporter as “any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium.” And a “news medium” is defined by the state as “any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation.” Television and radio news outlets are also defined under the law.

It seems that TechnoBuffalo received an anonymous tip about some Droid phone before it’s release, which apparently pissed off someone who cares about such things.  They wanted to know who the nasty tipster was, and asked Judge Panter to make it happen. 

While the decision here is somewhat Illinois-centric, based upon state law defining who is entitled to assert the privilege, the underlying problem presents a philosophical conundrum that continues to vex the blawgosphere.  Few of us think of ourselves as journalists per se, and rarely do we strut around town with pad in hand hounding out the news.  Heck, most bloggers don’t even have fedoras.

Yet, there are a plethora of rights and privileges that go hand in hand with the existence of a free press, not the least of which is the protection of  New York Times v. Sullivan, limiting defamation to malicious falsehoods, that we would most assuredly claim for ourselves if the need arose. For those who see neither reason nor justification to claim journalist standing, they either haven’t given it enough thought, or haven’t reached the point in their blogging where they realize the potential risks.  Much like the person who sees no reason not to let the cops search the trunk, since he has nothing to hide, it’s a big non-issue until it becomes an issue. Only then does the realization dawn on him that giving up any claim to protection probably wasn’t a smart idea.

Fortunately, and somewhat surprisingly, the Illinois Press Association has taken up arms in favor of TechnoBuffalo.com:

Don Craven, general counsel for the Illinois Press Association said: “If this same information had been published by the Sun-Times, clearly it would be subject to reporter’s privilege. And this [TechnoBuffalo] doesn’t sound like a fly-by night operation. So if it’s protected in the Sun-Times — in responsible mainstream media — why shouldn’t it be protected in a responsible blog?”

While it’s a good question, it’s unlikely to persuade the court.  After all, the same could be said for anyone who comes into possession of an anonymous bit of juicy information which they decide, even post hoc, to put on the internet.  Imagine if someone had put pics of the new Droid on twitter, no blog involved, via an anonymous tip, and claimed that the twit was entitled to privilege?  Maybe it should be, but it’s hardly a newspaper or periodical.  And if it received protection, then there would, by extension, be nothing on the internet that wouldn’t constitute press and be entitled to the journalist’s privilege.

The problem, of course, is that legal definitions take time to develop, and come about only in response to suits questioning them.  By the time they reach the appellate stage, where some court will consider whether an advance in technology satisfies criteria created at a time when it wasn’t so much as a twinkle in a legislator’s eye, it’s far too late for the party at hand, and far too late to address the status of technology at the moment.  Technology is moving far faster than any court or legislature, and the potential for definitions to meet not only what exists today, but what will exist tomorrow, is extremely limited.

The solution would seem to be laws and caselaw with a lot less modesty than has been the case in the past, giving substantial thought to what is happening not only in the case at hand, but in the present and future.  The decision of whether a blog is entitled to the protection given the press in general is one that needs to be made, both for the benefit of the courts as well as the benefit of bloggers, so we know where we stand and can conduct ourselves accordingly. 

For most of us (and for almost all the futurists who have long ago concluded that the “rules” that apply to the rest of society can be ignored when it comes to anything made by Apple or has an on-off button), we assume those protections despite the fact that the law hasn’t quite matched our expectations.  The fact is that bloggers don’t quite know what we are, and we pray we’re never put in the position of having to be the test case.

While the outcome of this Illinois suit may not apply to bloggers elsewhere, and courts continue to struggle with writing on the internets in its various permutations, it seems past due that a comprehensive understanding of what protection, if any, should be afforded bloggers be crafted.  Then again, given the concerns of those who cry about bullying, defamation, inaccuracy and the wealth of other evils that show up online every 37 seconds, the answer may well not be very protective at all. 

Even though some bloggers may feel that their writing is worthy of protection, it’s a big internet, and there are certainly plenty of blogs (and blawgs) whose “journalistic” standards are arguably below that worthy of protection.  And as we’ve seen with bar associations confusing flawging with blawging, it’s not at all clear that the decision-makers are sufficiently familiar with distinctions that matter a great deal to the blogosphere such that they’re equipped to make decisions that will have a huge impact on First Amendment rights now and going forward. 

There are excellent arguments to be made for conferring journalistic protections to the blogosphere, and some excellent argument against it as well. And as long as our online act remains something of a morass, it’s hard to say where it should come out, and where the line of protection should be drawn.  While favoring free speech, and risking the potential of an occasional impropriety, is the only viable choice, it’s likely that any decision made at this stage in the maturity of internet “journalism” won’t be quite so favorable.  And yet, working without a net on the ‘net makes blogging a risky business.

So the child super-predator myth hasn’t held up to scrutiny very well.  Big deal. What about the 66-year-old knife-wielding, aggressive-walking, triple-bypass, demented predator?  Huh?

Of course, it’s not like Melbourne, Florida, Police Officer Derek Middendorf got away with it entirely.  Absolutely not. He was issued a written reprimand for turning off his dash cam and audio.  Cops have rules, you know, and they are taken very seriously.

What remains a curiosity is that vicious old man Albert Flowers continues to be prosecuted for his assault on Middendorf.  If you watch the video closely, you can see it quite clearly as some part of Flowers’ midsection violently attacked Middendorf’s foot.  There’s no word on the condition of the officer’s foot, but we can only be thankful it was covered in heavy cop shoes. 

Notably, Flowers’ lawyer is demanding a speedy trial, likely as a concession to the speedy walking of his client.  Flowers is pretty darned speedy for a guy who underwent a triple bypass. Ah, the miracle of modern medicine.

What is remarkable is that the Melbourne police were apparently capable of “extracting” this video from Middendorf’s turned-off dash cam.  How exactly that works isn’t clear, but it belies the frequent excuse that no video exists when police cruisers are equipped with cameras.  Without the video, there’s little doubt that Middendorf’s description of Flowers’ vicious attack would have been impossible to dispute.  After all, who is to be believed, the police officer just doing his duty or the vicious old man?

What  is truly remarkable about this, and similar videos, is that there is no facial reason for the officer to have engaged in any violence against Flowers.  As is invariably the case, the rhetorical ploy, “why would the police officer have attacked the defendant as claims,” would be used and likely been overwhelmingly persuasive.  And yet, the officer did precisely that, attack a person against whom he had no discernable animus for no discernable reason.  It happens.  It happens regularly.  And it can’t be explained, especially not by the person attacked by the cop.

In the absence of audio, one might speculate that Flowers said something to the officer to place him in fear, or that the officer commanded that Flowers halt and yet he continued to approach.  Yet neither of these allegations were made, suggesting that while they might make sense, they simply didn’t happen.  The problem is that everyone, from viewer of the video to judge, tries to make some sense of Middendorf’s otherwise outrageous attack and beating of Flowers because we find it too disturbing to believe that it was just a pointless, unprovoked attack on an old man.  Our minds refuse to accept such pointless violence.

But then, the coup de grace, the tasing, reminds us that this is the real world, where the first rule of policing applies at all times.  We can’t find a rational explanation for what was done to Albert Flowers, and yet at the end of this brutal confrontation, the cops went home and Flowers went to the hospital for a month.  But at least Middendorf got a written reprimand, which shows how deeply the police administration cares about the new professionalism.  Beat them all you want, as long as the video remains on.

H/T Turley

Getting frisked in New York City is all about nuance, according to John Jay College of Criminal Justice professor Eugene J. O’Donnell.  From the New York Times :

To Eugene J. O’Donnell, a professor of police studies at John Jay College of Criminal Justice, the case underscores how officers sometimes struggle to articulate nuances in the laws they must apply.

Law enforcement, Professor O’Donnell said, “demands that you know the law, instruct subordinates what the law is and engage in an ongoing commitment to tailor your practices to comply with statutory and case law, which constantly evolves. This has seemed to concern the department less than it should.”

Apparently, nuance, like beauty, is in the eye of the beholder, when it comes to stopping livery cabs, pulling the passengers out on the street, detaining and frisking them under the Taxi/Livery Robbery Inspection Program, with the apt acronym, TRIP. 

Two men, Terrence Battle and Munir Pujara, represented by the ACLU, have sued the New York City Police Department for routinely detaining and searching livery cab riders.  As the cabs work the outer boroughs, where medallion cabs fear to tread, the riders tend to be more “colorful” than the Manhattanites, meaning that 80% of the people frisked are black and Hispanic.  Again.

The suit has managed to overcome its first hurdle by surviving a motion to dismiss.

In his ruling, Judge Richard M. Berman of Federal District Court on Friday rejected the city’s argument that the stops of Mr. Battle and Mr. Pujara were isolated incidents. Rather, he said, their complaint alleges a routine practice, one they would probably face again in the future.

“The pleadings suggest a widespread custom or failure to train,” wrote Judge Berman, who added that he was not yet ruling on the truth of the plaintiffs’ allegations.

The old “isolated incident” defense rears its ugly head.  While Radley Balko has done yeoman’s work cataloguing the “isolated incidents” of raids and warrants executed on the wrong houses, with the ensuing destruction, harm and humiliation a necessary but unfortunate consequence, the numbers involved in New York City are so monumentally huge that it dwarfs anyone’s ability to keep count, including the NYPD.

Under the Bloomberg administration, the number of question-and-frisk encounters mushroomed to 601,055 in 2010 from 97,296 in 2002.

While the city has created numerous programs designed to allow one person to give away the rights of others, including the one authorizing police to detain anyone entering a building without a key, or entering a targeted block, this program was created to protect livery cab drivers from robbery.

At its heart, the TRIP program is meant to help protect livery cab drivers, who have become targets for robberies and murder. By displaying a simple window decal bearing the words, “This vehicle may be stopped and visually inspected by the police at any time to ensure driver’s safety,” a driver consents to being pulled over by any officers seeking to check on his well-being. The plaintiffs in the suit seek to address the narrower issue of passenger treatment after the stop, not the legality of the stop itself.

Assuming (and this remains problematic) the drivers’ consent to a stop without cause, the most it would give rise to is a question of the driver as to whether there’s any problem.  If the driver says no, then the police officer should tip his hat and let them go on their merry way.  Instead, the confrontation turns to the passengers, who have done nothing to justify a question, no less detention or search, and the cops get a free search of people for whom no reason exists beyond their having taken a ride in a livery cab.

So where’s the “nuance” that O’Donnell finds so difficult to convey? Even assuming the sticker on the cab window is sufficient to waive the 4th Amendment (or in New York, Article I, Section 12) of the Constitution, in order to stop the cab to inquire, the leap from a question to a full blown search hardly demands a detailed explanation as to why it’s unlawful.  To suggest, as O’Donnell does, that this isn’t about cops so cavalier in their power to search anyone at any time, but merely some bit of confusion as to the limits of their authority, is downright ridiculous.

Between the various programs, including the  street stop-and-frisk program that’s been the source of constant tension, the fact is that New York City has become a constitution-free zone when it comes to detaining and frisking people.  And the statistics make it overwhelmingly clear that the people being frisked are not only people of color, but innocent of any wrongdoing.  Despite being roundly criticized, it continues and the City continues to defend the practice of ignoring the rights of its residents to walk, ride or breath without being molested for no reason under the sun.

This time, the City argued against the action by claiming that the defendants’ frisks were isolated incidents. Judge Berman rejected the argument, not because he concluded otherwise but because the plaintiffs alleged the incidents to be routine, making their claim sufficient to overcome the rhetoric.  Yet, given the numbers involved, and the fact that its been so well documented that there can be no reasonable question that the police use any excuse, or none, to stop and frisk at will, and that more than 90% of those frisked come up clean and just walk away, it would be awfully nice if someone finally concluded that this is happening.

But when the isolated incident excuse runs dry, the next one, prefaced by O’Donnell who dismisses it as a difficult training nuance rather than a wholesale, deliberate violation of the constitutional rights of black and Latino New Yorkers, will kick in.  Expect another decade of the same stop and frisk, with maybe a few new programs thrown in for our safety, to allow the police an opportunity to better prepare officers for the incredibly difficult nuance of not detaining and searching people for absolutely no reason. It will no doubt be a difficult lesson.

And by the time that excuse dries up, the apologists will have had ample opportunity to develop the next gen excuse for stops and frisks.  And no one of color walks down, or drives down, a New York street with his right to be left alone intact.

The  ABA Blawg 100 crowned a new Best Blawg in criminal law, and the honor goes to Jamison Koehler and his modestly named Koehler Law Blog.  While the competition may not be my cup of tea, that doesn’t mean that winning isn’t a significant achievement, and reflects the respect and dedication of readers.  Jamison has attained that respect and earned the prize.

Jamison, a former Philadelphia public defender, struck out on his own in Washington, D.C. a couple years back.  Like every lawyer trying to establish his own practice, it’s hard to shine without clients to provide the opportunity.  He started the blog as an opportunity to establish his knowledge in the eyes of potential clients, and has written some excellent posts, particularly in the area of drunk driving, where his knowledge of the intricacies of testing and procedure really shines through.

But more than his skill in drunk driving defense, Jamison’s writing style is perhaps the most enjoyable in the blawgosphere.  The ABA Blawg 100 description of his blawg called him “(refreshingly) humble,” a characterization few of us could ever claim.  And indeed, he is, with a self-effacing style that is impossible not to appreciate.  Frankly, I can only aspire to be as good a writer as Jamison.

My wild guess is that he gets it from his father, a poet of both renown and great talent.  Jamison’s occasional homage to his father, who lives on his writing, is both heartwarming and moving.  They say the apple never falls far from the tree, and if that’s true, then Jamison’s fabulous writing style comes to him as honestly as can be.

This likely explains why Jamison’s readers think so highly of him and are both devoted and supportive, which isn’t always the case in the blawgosphere.  It’s all too easy to let controversy cloud the person behind the blawg, and yet Jamison’s tone manages to come through in very post. 

So I congratulate Jamison for his well-deserved win for Best Blawg in Criminal Law.  As every blawger knows, it’s not easy to produce thoughtful posts that not only reflect well on the author, but help to improve the law and add to the scope of knowledge generated by the blawgosphere, and I look forward to Jamison’s continued contribution to helping illuminate worthy ideas and reflect the highest ideals of the profession.  Now that’s he’s the best criminal law blawger, expectations run high, and I expect Jamison to be just the man to meet them.

At MoneyLaw, Louisville Law Dean Jim Chen wrote what few lawprofs wanted to read, that the denials and protestations within the legal academy aren’t winning any converts:

Let me begin with the angry deniers. For my part, I do not believe that law professors and law schools do themselves any favors, in an age of indebted students, unemployed law school graduates, and laid-off lawyers, to trash these criticisms as a “hatchet job” or (better yet) a “bile pile.” It takes a deep measure of cynicism, perhaps even petty selfishness, to characterize the Times as being motivated by their writers and editors failing to get relatives into law school or past the bar exam. A second, less angry cohort of law professors fervently wants to believe that tough times in the legal profession are merely cyclical. Wait a year or two or five, so the wishing goes, and things will be back to the way they always were.

Count me in the third camp. The criticisms are real. They sting. All of us, from law schools and law students to lawyers and law firms, have to do something. Things could, things should be better.

The hard truth is that law schools could stand to act more like law firms, paying closer heed to what lawyers actually do for a living. Law firms could stand to to act more like law schools, absorbing the cost and the responsibility of training their new recruits instead of expecting law professors to know skills best perfected far from the classroom. Law students would be well served to take a hard, financially sophisticated look at the out-of-pocket and opportunity costs of legal education, to say nothing of the strictly pecuniary returns on their investments in personal capital. The Socratic method and the parsing of written appellate opinions have a firm place in law school. But law schools and bar examiners and hiring partners should all work together to reconsider why and how we teach certain things. Sheer age and force of habit are terrible excuses for doing anything, much less forcing aspiring members of our profession to endure a three-year ordeal.

Law schools do need to change —so  does the profession, if nothing else by ending the billable hour—- and so do the courts, if nothing else by throwing out the present rules of procedure and coming up with an entirely new paradigm.

I don’t think any of these changes will happen.  What I think will happen is that legal education and the law as we know it will vanish as they become increasingly irrelevant. The Age of Administration is already here.

The universities have been ruined by the shift to administrators; the courts and lawyers continue to price themselves out of the market.

—-But then, I’m an optimist.  Imagine the whole system as a replication of the airline industry.

The Age of Administration strikes me as Judge Kane’s way of saying that our world is being run by grocery clerks with a check list, refusing to budge off their rules and requirements lest they be subject to criticism for failure.  But the judge recognizes that the courts have become “increasingly irrelevant” in society, and that “courts and lawyers continue to price themselves out of the market.”  Notably, he includes courts in that statement, not just over-priced lawyers.

That such a view would be expressed by a disaffected litigant would be no surprise at all. That it comes from a federal judge is very different.  The same is true when it comes from a law school dean.  The people who are most vested in the system, maintaining it the way it is and perpetuating it long enough for them to retire so they bear no responsibility when it collapses, is pretty bold.

It’s one thing to criticize law school and face the shrieks of lawprofs who demand their right to play scholar on the backs of kids who only want to become lawyers and get a job.  But the discussion has largely occurred outside of the confines of a failed system of practice.  Our courts satisfy no one. It takes forever to litigate and reach a result.  Most disputes are priced out of the market for practical reasons. 

Rarely does anyone “win” anything from litigation; they do in full of righteous indignation and come out the other side hoping their adversary suffered more than they did.  No one really wins.  Nothing is really resolved.  And judges seem just as oblivious to the failure of the legal system to serve people’s needs as lawprofs are toward their students.

We’re not just hearing it from the dissatisfied and disaffected, but from the players within the system.  We, all of us, have mucked it up pretty badly.  We can explain how and why it got this way, but that doesn’t make it any better, or serve to provide guidance for how to take this system and make it work for people again.

So while we can worry about law schools failing to produce lawyer-ready students, we are foolish to do so without simultaneously rethinking how the system needs to change.  Without the latter, we have no real clue what to demand of the academy in preparation of future lawyers.  We’re a mess, and it’s time to face the strain and change.

With turmoil aplenty in the blawgosphere over the past week, stemming from the discovery of settling  Rakofsky v. Internet defendants  Lori Palmieri and Martha Sperry, and from there flowing downhill at a  remarkable and disturbing pace.  No need to discuss the harm done to integrity and intellect, as it’s already been made abundantly clear if you’re so inclined to see it.

And that’s the point. Whether a writing is too harsh or too lenient, too deep or too insipid, it reflects the sense of the writer.  Readers may, and often do, disagree. That’s how thought works.  Contrary to the expectations of some lawyers who participate in the blawgosphere, you don’t get to publicly opine, display whatever you believe to be brilliant, and demand the applause of the crowds.

My pal, Kevin O’Keefe, who is in the business of selling blogs, pitches his wares as a means for lawyers to demonstrate their expertise.  What he doesn’t say is that it’s also a way to demonstrate their cluelessness or venality.  Write something great and others may think well of you. Write something awful and they won’t, and chances are pretty good that a lawyer can ruin a reputation by publicly revealing their intellectual or moral bankruptcy.  Of course, if Kevin were to talk about the downside, it wouldn’t help to sell blogs.

In her attempt to defend herself, Martha Sperry, who is a lawyer but whose internet focus is on shiny toys rather the shiny thought, wrote that she felt more “muzzled” by the criticism of her decision to settle, which required her to write about how the blawgosphere was unfair to Rakofsky, than by his defamation lawsuit.  Putting aside the disingenuous nature of her epiphany, which committed the sin of omission by desperately trying to sidestep that it came about as a means of settling the case, Sperry’s arguments created their own response.

No doubt Sperry’s muzzling claim was an accurate reflection of how she felt, likely the most honest thing she had to say in her own defense.  But it reflects a misapprehension of how speech works. Say something publicly and expect someone to disagree.  When they do, they aren’t muzzling you, but responding. That they disagree, and disagree vehemently, isn’t muzzling. It’s a reflection of the nature of public speech.  When you choose to speak publicly, you have no right to complain about disagreement. 

Similarly, there’s no right to complain about the quantity and courtesy of disagreement.  Just as a blawger’s writings reflect her sensibilities, the reaction reflects the sensibilities of others.  In my post on Lori Palmieri, one  commenter told me my post was “mean-spirited and, frankly, valueless.”  Not only do I accept his assessment, but I invite it. While I disagree, I don’t deny that my writing failed to meet with his approval, and, by his sensibilities, was exactly as he said.  That’s the risk I take when writing, inviting an disapproving reaction.

Another told me my post was “senseless and gutter bullying,”  He subsequently wanted me to debate him about it.  There’s nothing to debate. He’s completely right, based on his sensibilities, but that’s of no consequence to me.  I fully expect some to find me too harsh, too extreme, on occasion, but I take the risk when I write.  Universal approval is not my goal, so the fact that some readers think my writing horrible isn’t at all disturbing.  It’s expected. That I disagree with them doesn’t make them wrong, but merely demonstrates that we do not share the same sensibilities. Even if they can’t live with that, I can.

The flip side is similarly problematic, and gives rise to the mistaken perception of “mobbing” and “bullying,” language used by people who seek to impugn the integrity of the blawgosphere without grasping its nature or addressing the speech involved.  The blawgosphere is made up of individuals, some of whom have very different sensibilities, and some of whom share a very similar sense of integrity and relevance. 

There is no weekly meeting of blawgers, where it’s decided that a bunch will write about a particular issue or problem.  There is no mob, nor ability to create a mob. Rather, an individual will make a personal choice to write, and what to write, based on his sensibilities.  That someone else has written on the same subject, or expressed a similar view, isn’t a reflection of mobbing, but shared sensibilities.  We can’t help it that we’re not the only person in the blawgosphere to think something.

There are certainly times when it seems, in retrospect, that the totality of the blawgosphere has overdone a particular story, a particular issue, or in the case of someone like Rakofsky, a particular person.  But who isn’t allowed to write?  There’s no editorial board here to tell a blawger that a subject has been beaten to death and he’s not allowed to speak his mind. Each blawger decides for himself whether to jump in or not. We don’t censor each other, and if we tried, we would likely get our heads ripped off for it.

For blawgers who write anything remotely controversial, we can never anticipate whether the reaction will be positive, negative or snoring.  We take our chances every time we hit the publish button, and afterward we take our punches if that’s how it comes out.  We don’t cry about it, complain about it, or debate it. It is what we think, and if other disapprove, we shrug it off or get out of the game.

What we have neither right nor call to do is be disingenuous about our writing, “shuck and jive” our way around our deceptions and expect the blawgosphere to cut us a break.  Sometimes we feel muzzled because we deserve to feel that way, because what we’ve written is dishonest and we’ve been called out.  But we weren’t muzzled at all. We wrote what we wrote, and we had our way.  That more people, maybe everyone, thought poorly of the speech isn’t a flaw of the system, but a feature.  That’s how bad ideas are killed.  That’s how integrity is promoted and deception is thwarted.

And if you can’t stand the challenge, the scrutiny, the disapproval, then you have no business going on the internet and telling the world what you think.  We all have a right to speak. We all have our personal sensibility.  But we have no right to demand that everyone else enjoy our speech or share our sensibility.  If you can’t accept this, you do not belong in the blawgosphere.

It’s not that the Eric Holder had an epiphany, discovering that he’s a Democratic Attorney General and that the people who elected his boss had an interest in the Department of Justice supporting adherence to the Bill of Rights.  Then again, the cause may not be entirely lost.

Via the Baltimore Sun :

The U.S. Department of Justice’s Civil Rights Division has urged a federal court to side with a Howard County man in a lawsuit over his cellphone being seized by Baltimore police at the Preakness Stakes after he filmed officers making an arrest.

The federal attorneys say the lawsuit “presents constitutional questions of great moment in this digital age.” They asked U.S. District Judge Benson Everett Legg to rule that citizens have a right to record police officers and that officers who seize and destroy recordings without a warrant or due process are violating the Fourth and 14th amendments.

There isn’t enough money.  There are plenty of people who require a free lawyer, as they just keep arresting people without asking their net worth, but then they have to be given that free lawyer.  And that takes money. And there isn’t enough

In Orleans Parish, Chief Public Defender Derwyn Bunton came up about $2 million short, out of budget of $9,500,000.  He just didn’t get the money he needed because somebody decided not to waste it on defendants spend it on a constitutional mandate.  So poof, it’s gone.

Some might think whoever decided not to hand over the money to be in the wrong.  Some might blame Bunton.  Via NOLO.com :

A new austerity plan at the Orleans Parish public defender’s office has started to make waves, including one that lapped into a courtroom Tuesday on the eve of a death penalty trial. The plan, to cut off all payments to private lawyers hired by the office, drew a biting response from Criminal District Judge Lynda Van Davis, who upbraided Derwyn Bunton, the chief public defender.

Bunton had taken the witness stand to explain his move to halt payments for private lawyers who work death penalty cases and represent clients who have a conflict with the office.

After grilling Bunton, Davis accused him of misappropriating funds budgeted for capital cases.

“It sounds to me like you spent the money for [capital defense] on something else,” the judge said. “That’s the first (cut) you start with, is the people who face the toughest punishment in the state of Louisiana?”

Who, Judge?  Who deserves to get screwed?  Which defendant is unworthy of representation. Somebody has to get left behind, so which one do you choose?

The fact that the courts would be hard pressed to try a defendant, convict him and impose death if he’s not represented seems to suggest that Bunton’s choice was perfect.  If there’s no money for capital defense, there can’t be any capital punishment. 

And if you want to put people to death, because it would just break your heart not to execute somebody, then put up the money. 

Regardless of whether your choice would have been the same as Bunton’s, it doesn’t resolve the question of why Bunton should have been forced to decide where to allocate funds at all.  Why is it his problem of who gets paid, who gets a lawyer, who gets burned?  If the cops want to arrest, the District Attorney wants to prosecute and the judges want to sentence to death, they create the need for financing.  Hey, death cases are expensive.  You don’t want to pay the money? Don’t seek the death penalty. Problem solved.

But Judge Davis accused Bunton of misappropriating funds for capital cases.  Did he put the money in his pocket?  Did he rent out the bowling alley for a party?  No such allegation as far as I can see.  He used his funding to defendant people accused of crimes.  There is no rationale that justifies calling that misappropriation.  It’s allocation, and when somebody short changes you on a scarce resource such as funding, you’ve got no choice but to allocate.

Judge Davis’ concern is certainly understandable.  So too is the concern of lawyers who were working the death cases, thinking they would get paid whatever crumbs are given to those who do some of the most difficult work in the courthouse.  They should get paid, Well paid.

But to suggest that it’s Bunton who is stiffing the lawyers, holding up the death trials, is to focus on the low-hanging fruit.  What of the $2 million missing from his budget?  What of the people who are required to fund the defense of the people they want to put to death?  These are the fingers that clasp the purse strings so tightly that nothing can get done. 

Every defendant charged with a crime is entitled to indigent defense if he cannot afford a lawyer.  Sure, this drains the taxpayer.  Sure, taxes are down and people aren’t inclined to pony up any more. But this is a societal problem, not misappropriation by the public defender.  Scream and yell about it all you want, but put the real butts into the witness chair and find out where the money went. 

Leave Derwyn Bunton out of it. He’s trying to make use of what he’s got. If it’s not enough to satisfy the demands of the Constitution, go to the people who can fix the problem. Don’t blame Bunton.

H/T Aussie Tim Farhill