When one takes the helm of so august a group as the American Bar Association, it’s wise to pick one’s enemies carefully.  It’s not like there aren’t plenty of darn fine choices, assuming getting invited to  official cocktail parties isn’t your primary goal, in which case the enemies list gets much smaller.

However, one group of people that you really don’t want to piss off is, well, lawyers. In particular, young lawyers.  Even more particularly, young lawyers who are feeling particularly crappy at the moment for having taken on a ton of debt to become lawyers.  And if we could put a head on it, the ones who can’t find a job in the law, despite their expensive edumacation, ton of debt and vision of a long life of misery ahead of them.  Yet this is who William Robinson, President of the American Bar Association, chooses to blame.

From an interview with Reuters :

Robinson, a lawyer in Kentucky, said anyone entering law school has already completed an undergraduate degree or more.

“It’s inconceivable to me that someone with a college education, or a graduate-level education, would not know before deciding to go to law school that the economy has declined over the last several years and that the job market out there is not as opportune as it might have been five, six, seven, eight years ago,” he said.

Not as opportune?  Well, that’s a nice way to say it’s in the toilet, with ABA approved law schools dumping about  15,000 new lawyers into a market that can’t absorb them.  But what about the ABA, Will?  What about its role in this fiasco? What about the studies showing that the ABA’s “management” of law schools has been a primary cause of their absurdly high tuitions, and cause for the huge debtload carried by new lawyers?

“None of the studies show that the ABA rules of certification are what’s responsible for the cost of legal education,” he said. Other factors, such as competition for professors, are driving the increase in cost, he said.

Robinson recalled his own experience paying for law school at the University of Kentucky, where he got a degree in 1971.

“When I was going to law school, and I sold my Corvair to make first-semester tuition and books for $330, a sizeable portion of the faculty had tenure. They had tenure then and they have tenure now,” he said.

That Corvair was one cool car, gas tank issues notwithstanding.  But still, Will, shouldn’t the ABA do what it can to smooth the profession through tough times?

“I should take the lead in telling these schools that they should reduce their tuition to $25,000 a year? No, I don’t think I should do that. I don’t think it would be purposeful. I don’t think it would be meaningful. I don’t think it would accomplish anything for me to do that,” Robinson said.

He said “it’s a complex question as to whether the cost is higher than it should be or is justified.”

Yeah, Corvairs were really cool back then, before Nader went and screwed them all up with that unsafe any any speed crap.  And William Robinson’s insensitivity and crass denial of responsibility is outrageous.  It’s complex?  Great! You’re the President of the ABA, presumably capable of dealing with complex issues. Deal with it.

Is there some merit to the “they should have known better” argument? Sure. Some. But his overt disclaimer of ABA responsibility isn’t merely wrong, but offensive.  Too many law school with too many seats pushing out too many lawyers whose primary purpose for being there is to take their rightful place among the wealthy and important in society.  Too many law professors doing too little teaching and too much whining, getting paid more than they would if they had to  work for a living on the backs of students fed doctored stats by law schools in their glossy, 17-color law porn.

Anything in there strike you as curious, Will?  You know, like something the ABA could have an impact on?

Naturally, disaffected young unemployed lawyers have  not taken well to Robinson’s comments:

ABA President William Robinson is stupid, a dick, and a big stupid dick.

And persuasive voices like this can’t find work?  Inconceivable!  Yet Robinson’s knee-jerk defense of the status quo is not merely equally unconvincing, but utterly wrong.  Sure, there’s some blame to be levied on the young lawyers for closing their eyes and diving head first into a pool of feces.  But that’s your pool of feces, Will. Don’t deny it stinks. Clean it up.

You took the reins of an organization that putatively reflects the voice of the legal profession. The job is more than going to official cocktail parties and getting a plaque at the end of the term.  The job is more than insipid defense of the way things always were, and shifting blame to the victims.  

Lawyers see what’s going on, and we realize that we’ve got an untenable system. At best, we can call it structural unemployment. At worst, we’re running a scam.  Regardless of how it’s characterized, we know it’s a disaster.  Are you seriously claiming that you, Mr. ABA President, don’t see a problem here?

These young lawyers, for better or worse, are the future of our profession.  They’re turning to mush before our eyes. They consider our ethics and obligations archaic remnants of the once-noble profession because they are being crushed by their current circumstances.  Desperate people don’t have the latitude to worry about which club tie they wear; they’re hungry.  And you, Will, are telling them to eat cake?

Much as I hate to use such profane language here, there is no escaping one conclusion based upon the myopia and insensitivity reflected in these statements.  William Robinson is a stupid dick.  More importantly, his thoughts do not reflect those of any lawyers I know, who fully recognize that the ABA is a primary source of  the problem, and thus a primary source of solutions.  

And instead of trying to fix the problem, the president of the ABA blames the victims.  What a disgrace.  What a stupid dick.
 

Utah Lawprof Michael Teter posted something funny over at PrawfsBlawg.  The title was Campos is Right, but it has absolutely nothing to do with scamblogging hero Paul Campos.  It was just to troll.

I’m going to let you in on a secret.  Those of us who guest blog here measure our success by one criterion alone:  whether we get the mainstays of the Prawfs family to comment on our posts.  Only when we see the likes of Dan Markel, the two Ricks, Howard Wasserman, and all of the other folks listed to the immediate right, in the comments do we know that we’ve truly arrived.  And let’s not forget Orin Kerr.  I won’t hide the satisfaction I felt upon seeing that my first post on Prawfs drew a response from Orin himself.  A day late, sure, but that only adds to the power and mystique.  The comment was succinct and witty – pure Orin Kerr.

On the topic, I should note that I’m meeting with a tech guru soon and I’m thinking we might create a special passport to commenting on posts, if that’s technically feasible. The idea would be only pre-cleared commenters would be able to comment, sort of similar to the way facebook allows you to comment on things without intermediation, but only b/c the poster knows who’s commenting. Anyway, we’ll see, discuss and explore. Stay tuned.

Posted by: Dan Markel | Jan 5, 2012 6:04:13 PM

I feel that this post is just sad. In its own way, it bolsters Campos’ argument that it is nearly impossible to get most legal academics to see the human and financial toll of the law school crisis facing most recent graduates – particularly those at 3rd and 4th Tier Schools.

Instead of taking a stand – one way or the other, right or wrong – on Professor Campos’ work, the author uses the post as an obsequious ode to the “LawPrawfs” who run the blog. No opinion is even ventured about the state of legal academia or the sustainability of the current educational/financial model at schools ranked lower than the Top 50. Hell, even the candid perspective of a junior faculty member entering academia at a time of such uncertainty over the efficacy and viability of the current US News-driven business model would be helpful. After all, in a time of contraction, wouldn’t the untenured be the first to go? Those of us outside the Ivory Tower, would find your thoughts on this quite illuminating.

I do not mean to single out Professor Teter here, but isn’t this emblematic of the go-along-to-get-along culture in academia – particularly among junior faculty seeking tenure? It seems that junior faculty are given a long leash to critique many subjects, but there is an unspoken rule to stay away from examining the stability of the Langdellian mothership.

My frustration extends beyond the junior faculty (who at least have the power dynamic of tenure status to explain their behavior). The uncritical examination of the status quo is also endemic to senior tenured faculty. I am especially frustrated by many of the 50, 60 and 70 somethings that comprise the remnants of the “critical legal studies” movement. If the law school “scam” (I use the term as a colloquialism, not as a statement of fact), isn’t a ready-made issue for CLS examination, what is? It’s got all the elements that should theoretically spur CLS inquiry. It hasn’t. The silence of the CLS community also reveals that in most quarters of legal academia, it’s safe to rail against many things – just not the structure of legal education itself.

Finally, I take a far less charitable view of Professor Markel’s censorship than Professor Teter does. In my limited and admittedly brief time reading this blog, I find that Professor Markel’s “quick draw” efforts to delete posts and close comments unsettling. I don’t know why he finds differing opinions so unsettling, but he does. His recent decision to delete a benign (and on topic) comment questioning the ethics of faculty accepting free food and drink from fourth tier Drexel Law School stands out to me. Of the “regulars”, he stands out as especially dismissive of any concerns raised by recent graduates and that is unfortunate. Dismissing the viewpoints of others grounded in personal experience/tragedy is unfortunate, but heavy-handed aggression towards those with different viewpoints is especially problematic. There is a special irony that this censorship occurs on a blog purportedly dedicated to “intellectual honesty.”

Posted by: Voodoo94 | Jan 5, 2012 8:22:42 AM

Mere hours into a new year, and spit is shooting from  Brian Tannebaum’s mouth.

But yesterday, the first day back for most lawyers, brought out the rash of shit that is the failed and former lawyers, and those with no business advising anyone in the legal profession, going on and on about why lawyers need to “get on board,” with social media and shiny toys. It was like they were holding their breath for 3 weeks and just couldn’t take it anymore. The flood gates opened – where was their next desperate lawyer looking to “harness the power of social media?” Where was the next broke lawyer looking to learn which Apple product they were required to have to “survive?”

Adam Wagner refers to the Orwell Prize.

The Orwell Prize is Britain’s most prestigious prize for political writing. Every year, we award prizes for the work – the book, the journalism and (since 2009) the blog – which comes closest to George Orwell’s ambition ‘to make political writing into an art’.

Ironically, the only way to win an Orwell Prize is to enter and promote one’s own work, a notion that would make Orwell’s head explode, as my  Brit pal CharonQC delightfully notes.  Inkster applaud’s Wagner’s honesty, if not his direction. He is a flawger, and darn proud of it.

Antonin Pribetic, who offered the original definition of ‘flawg’ and ’flawger’, considered 2011 to have been “a banner year for Flawging” in his recent post: Flawging a dead horse. 

Will 2012 see more lawyers coming out of their Chambers as flawgers? Perhaps it will be the year when that Elephant in the #LawBlogs Room is no longer ignored.

Back at home,  Ken at Popehat (yes, we know who Ken really is, but he will forever be enshrined in the Pantheon of Blawgers as Ken at Popehat) screws with the industrious marketers who function under the belief that lawyers are all, deep in their dark hearts, flawgers. 

My new pal Feculent is right about one thing — our firms have not met. That’s because my firm is a law firm, and his firm is lodged, like a partially absorbed suppository, in the legal referral industry.

It’s becoming increasingly clear that Ken has a particularly keen olfactory sense, which manifests itself in his descriptions.  Mark Bennett, having  played  this game with  marketers  many times in the past, never wrote about the smell.

Many of you reading this, judges, prosecutors, public defenders, have no interest in flawging (and why you’re still reading is beyond me), as the last thing you need is more business.  For lawyers with a payment due on the Ferrari (which looks remarkably like Hyundia) and mouths to feed, the silent telephone is breaking their hearts. And for the new lawyers, wondering what the chances are that a job is going to appear on Skyrim as they sit on the old couch in their parent’s basement, flawging may be their only hope.

To the chagrin of the smiling marketers, the SEO salesmen, the schemers who claim they have big money cases just waiting for you to sign onto their network, the lawyers online are still a small group.  It’s not that the rest of them don’t have access and a keyboard, but they have yet to jump on board.  Each day, a few more close their eyes, hold their nose, and take the leap.

These are the n00bs targeted by the snakeoil salesmen, and they haven’t grown inured to the schemes and scams.  The fresh blood is targeted, and easily taken in by the former lawyers and their cohorts whose own financial security is dependant on the foolishness and ignorance of the desperate. 

With each new year, and each hungry mouth, a lawyer finds his way to the gutter of the web, where he’s promised success and prestige if only he buys the magic secret answer.

And with each new year, someone has to warn off the n00bs, repeating what has been said before, that there is no magic secret answer.  Will 2012 be the year that Flawging becomes respectable?  Will this be the year when the bulk of lawyers, finally realizing that they have to “get on board” or die, walk down the internet boulevard in their newly purchased hotpants?

Those of us who have been around for a while, and whose eyes (and nose) aren’t shielded by self-interest and rationalization to justify why we’ve been wallowing in the gutter in the vain hope of making that nasty old phone ring, engage in a battle for survival.  The public may have little respect for lawyers, but lawyers have little respect for themselves, earning the public’s disdain.  So we fight to stop the slide into the gutter. We write to tell the hungry and desperate that they are being sold a lie.

Someone, today, will read this post who knows nothing about the blawgosphere, but has heard that if he starts a flawg, his phone will ring and his children will be fed.  Maybe he will be persuaded to read Tannebaum’s post, dodging the spit, or Ken’s post (holding his nose), or Bennett’s post (with no body part necessarily involved) and realize that going down the path of flawging won’t make him a success, but will cost him his dignity, and contribute to the disgraceful conduct of lawyers on the internet.

Maybe. It’s worth a try.  It won’t get you any new readers, or any new business, or any awards, or likely any friends.  It might save some poor schmuck from pissing away his last few dollars.  It will certainly be a laboring oar in the effort to maintain the last vestiges of dignity of lawyers on the internet. 

Don’t let 2012 be the Year of the Flawg.  It won’t save your practice or feed your children. It will bring our profession into further disrepute.

Don’t blame ICE, the cool acronym for Immigration and Customs Enforcement. Blame Jakadrien Turner, the 14 year old girl who ran away to Houston, got caught stealing something (a loaf of bread?) and gave the coppers a fake “Spanish” sounding name that just happened to be the name of a 22-year-old Columbiana illegal, who had some warrants and a seat on the next flight out.

Hasta Luego, Chiquita.

With the help of Dallas police, Lorene Turner searched for her missing granddaughter:

“It’s very frustrating,” Lorene Turner said.
 
She has spent hours on Facebook trying to find her granddaughter, Jakadrien.
 
“Once I get home I am up until 3 or 4 in the morning searching and looking,” Turner said. “It’s all I can think about. Finding my baby.”
 
Turner has been searching for Jakadrien since the fall of 2010, when she ran away from home. She was 14 years old and distraught over the loss of her grandfather and her parents’ divorce.

ICE took the girl’s fingerprints, but somehow didn’t confirm her identity and deported her to Colombia, where the Colombian government gave her a work card and released her.
 
“She talked about how they had her working in this big house cleaning all day, and how tired she was,” Turner said.

U.S. Federal authorities got an address. U.S. Embassy officials in Colombia asked police to pick her up.

But that was a month ago, and the Colombian government now has her in a detention facility and won’t release her, despite her family’s request.

“ICE takes these allegations very seriously,” said ICE Director of Public Affairs Brian Hale. ” At the direction of [the Department of Homeland Security], ICE is fully and immediately investigating this matter in order to expeditiously determine the facts of this case.”

ICE officials also noted there have been instances where ICE has seen cases of individuals providing inaccurate information regarding who they are and their immigration status for ulterior motives.

I told you they would blame Jakadrien. If they admit that some lazy imbecile couldn’t be bothered to take the additional step of verifying this child’s identity before putting her on a plane, then the entirety of the structure of government, with its vast power and resources, might be suspect. Because no matter how much money we pour into it, no matter how many procedures they have or how much tech is at their disposal, no one has figured out a way to remove humans from the process.  To err is human. 

And this time, there’s a 15-year-old African-American girl who speaks no Spanish sitting in a Columbian jail because of it.  Bienvenidos a Columbia, Jakadrien. Next time, don’t make it so difficult on the grocery clerk if you know what’s good for you.

Update: She’s coming home.

Jakadrien Lorese Turner, 15, flew from Bogota to Atlanta and is expected to arrive in Dallas tonight, her mother tells the Associated Press.

What are the chances she’ll be arrested at the border as an illegal re-entry?

Via Radley Balko,  MSNBC reports :

About 40,000 state laws taking effect at the start of the new year will change rules about  getting abortions in New Hampshire, learning about gays and lesbians in California, getting jobs in Alabama and even driving golf carts in Georgia.

Many laws reflect the nation’s concerns over immigration, the cost of government and the best way to protect and benefit young people, including regulations on sports concussions.

Some laws are trivial. Some are significant. Some will affect you. Some won’t. Some will force you to pay a big fine. Some will put you in jail. Some will save a life. Some are intended to save a life but won’t.

Proponents of each of these laws will no doubt be happy to explain why it’s needed and why it serves the greater good.  And they may be right, in some if not all instances. 

But what this speaks to, in the big picture sense, is that we’ve become a nation of people who believe that everything, every ill, every wrong, every potential problem, every potential good, requires a law.  Anyway you twist it, 40,000 is a lot of laws. And those are just the ones that will become effective now. We’ve got some laws from last year too. And the year before.

If this is how you see a better society, a safer society, a more fair society, being achieved, then this is great news.  Just remember that the maxim, ignorance of the law is no excuse, remains in full force and effect, and it’s not up to you to define and decide which laws you think are worthy and which aren’t worth spit. 

Legislatures pass laws because people complain about problems that need fixing. This is the only hammer they have.  With each new law comes a new opportunity to violate it.  With each violation comes the potential for getting in trouble.  That’s 40,000 new ways to get into trouble. 

Have we fixed all your problems yet?  Is everything perfect?  No? Not to worry. By the start of next year, we’ll have more laws. No doubt everything will be perfect then.  And if not, we’ll just keep making more laws until we get it right.

A few days ago, the  New York Times had an insipid editorial deriding the failure of prosecutors to honor their obligation to disclose exculpatory evidence pursuant to Brady v. Maryland.  The impetus for the editorial was the Michael Morton DNA reversal in Texas, where it only took 25 years to learn that then prosecutor, now Judge, Kenneth Anderson, withheld evidence. 

While that was bad enough (except in Texas, where this appears to have become the norm), current Williamson District Attorney John Bradley spent six years doing everything possible to prevent Micheal Morton from getting the DNA tested that would exonerate him.

For six years, the Williamson County district attorney, John Bradley, fought the request for DNA testing, based on advice from Judge Anderson, his predecessor and friend. In 2010, however, a Texas court ordered the DNA testing, and the results showed that Mrs. Morton’s blood on the bandanna was mixed with the DNA of another man: Mark A. Norwood, a felon with a long criminal history who lived about 12 miles from the Mortons at the time of the murder. By then, Mr. Morton had spent nearly 25 years in prison.

The Supreme Court, in an outrageous decision earlier this year, further weakened the ability of wronged defendants to make prosecutors’ offices liable by giving them nearly absolute immunity against civil suits. Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” But bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.

This is why the Morton inquiry is crucial.

Up to this point, it’s all background, as the real news comes via  Grits for Breakfast and the Austin Statesman :

Grits is shocked, shocked I tell you that the state bar announced it has dismissed the ethics complaint filed against Williamson County DA John Bradley stemming from alleged prosecutorial misconduct in Michael Morton’s false conviction, a development the Austin Statesman reported today. Except … oh yeah … Grits predicted earlier the state bar “almost certainly” wouldn’t do anything.

(Aside: I could have used the official newspaper version of events, but couldn’t deny Scott Henson the credit for having predicted the outcome. Not that it was a particularly difficult prediction, but he nailed it and deserves the credit.)

To the extent that the criminal justice system can be analogized to finely tuned machine, there are some gears that have never quite meshed.  This is one of them, the obligation of the prosecution to “do justice” rather than conceal exculpatory evidence and do everything possible to deprive a defendant of the opportunity prove innocence, all to get a conviction. The system works on incentives, but the incentive for the prosecution to act against its conviction-at-all-costs interests doesn’t work.

It’s not that some prosecutors, as individuals or because of office culture, don’t comply with Brady.  It’s that they do so because they choose to do so. It’s a personal choice, because there is no mechanism to make them.  A system that relies on good will alone gives those inclined toward venality a free hand.

Brady has been a right without a remedy from the start. Decided in 1963, opinion by Wild Bill Douglas, I’ve often imagined Douglas and hs cohort Brennan chortling over how the defense is going to make this one happen.  And it hasn’t, except by prosecutorial oblige.

Dave Hoffman mused about what may (or not) be a yiddish saying: To a worm in horseradish, the world is horseradish.  The Supreme Court sees horseradish.  The Texas State Bar sees horseradish.  Associate Justice Clarence Thomas sees horseradish too.  Not that they’re worms, which would be disrespectful, but the point remains.

The rationale for protecting prosecutors from the consequences of their wrongful actions is that they might be reluctant to risk hard choices in the performance of their duty if they feared personal consequences for failure.  We need brave and bold prosecutors to do the people’s work of convicting criminals, and we would all suffer if they waver in fear for an innocent mistake.  Got it.

Justice Thomas’ understanding in Connick, however, is hard to accept as anything more than an excuse. He’s got people to research how many prosecutors are sanctioned for unethical conduct, and he must have been aware that he was blowing smoke.  The same is true of the rest of the Supremes, and the Texas State Bar as well.  If all they see is horseradish, it’s because they must really like horseradish.

In other words, the gears of the criminal justice system work the way they’re designed only when and if prosecutors of good will choose to make them work.  But for many prosecutors, and from my horseradish view most, they too are worms, and what they see in their horseradish is bad people who must be convicted no matter what. 

The New York Times editorial applauded prosecutors of good will for doing what they chose to do to vouchsafe the Brady rights of defendants. The Supreme Court passed the buck to disciplinary committees to provide the incentive to make recalictrant prosecutors behave ethically.  The Texas State Court did it’s job and exonerated John Bradley, saying he acted ethically and professionally.  Then they all sat down for a nosh of gefilte fish slathered with horseradish.  Yum.

And the Bills, Douglas and Brennan, are laughing at their joke on us.

The conviction of the innocent as a result of prosecutorial impropriety due to withholding of exculpatory evidence isn’t sufficiently important to create incentives to prevent it from happening.  It is more important that prosecutors perform their duty without fear of consequences for impropriety. There is no solution for this problem that the courts will impose. 

Now pass the horseradish and stop complaining.  This is our system, and we’re not going to get Clarence Thomas to admit that he doesn’t love horseradish. No finely tuned machine can work with horseradish stuck in its gears.

On the last day of 2011, a Saturday when people were more inclined to think about who they would kiss at midnight than what part of our American heritage was thrown away, President Obama  signed into law the National Defense Authorization Act.

Via Jeralyn Merritt at TalkLeft :

President Obama today signed into the National Defense Authorization Act, which contains the controversial and objectionable provisions on indefinite detention and restrictions on transfers of detainees from Guantanamo. He issued a signing statement with it that doesn’t ameliorate the damage.

The ACLU says :

While President Obama issued a signing statement saying he had “serious reservations” about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA, and would not affect how the law is interpreted by subsequent administrations.

As if uttering the words “serious reservations” as he signs this bill will change everything in the history books.  While news of the signing could be found anywhere, I cite to Jeralyn for a reason.  If there was any break to be cut a Democratic President, it would be from an unabashed liberal.  Jeralyn cuts him no break.

The world is our battlefield, according to the U.S. Just shameful.

There are no doubt some, perhaps most, in this country for whom faith in government and desire for safety and order will not only allow them to shrug this off, but even support this initiative.  They’re terrorists.  The President says so, and that’s good enough for me.

Having bought into the amorphous war on terror, because the war on drugs worked out so well, the way is paved to enjoy the two tier system just created in derogation of the freedoms and protections that grace the lintels over our government buildings.  We recite the platitudes, while we slide down the slippery slope “with serious reservations.”

What processes led President Obama to flip-flop, to acquiesce, to sign this bill into law, isn’t clear.  Is it because of the upcoming election, where he fears being labeled soft on terror?  Is it because he fears a battle with Congress, and the show of weakness if they override his veto?  Or perhaps because he believes that whoever sits in the oval office is so trustworthy, so perfect, that he should hold the power to defy basic constitutional precepts?

In the long run, it doesn’t matter.  There will always be an “enemy” of America.  And if there isn’t, we’ll create one.  Without an enemy, we wouldn’t appreciate the protection our government gives us nearly as much, and they want to be deeply appreciated.  Of course they realize that this law will live in perpetuity. They aren’t stupid.  Not all of them, anyway.

The ACLU statement following President Obama’s signing called this a “blight on his legacy.”  While true, it fails to fully appreciate what has happened.  Years from now, no one will care much about Obama’s legacy.  Whether third graders are taught that he was the next Kennedy or Hoover won’t change a thing.  What he screwed with here is our legacy, the constitutional legacy of Americans.

It’s not entirely without precedent.  There was the detention of Japanese Americans during World War II.  There was the Gulf of Tonkin Resolution.  There have been bold acts by our government that have, in retrospect, been recognized as not merely horribly wrong, but fundamentally contrary to our legacy.  At the time they happened, the important politicians of the day explained why the problems they faced were so different, so demanding of extreme measures, as to justify a fundamental departure from our legacy.

Each time, they were wrong, and their decision haunted them.

Will history repeat itself?  Will we wake up in a year, or ten, and remove our collective heads from the dark hole in which it now hides, and realize that we’ve allowed a transitory desire for safety to trump our legacy of freedom?  Perhaps.  It’s also possible, however, that we have become so inured to a world of diminishing freedom that as long as there is a bogeyman to blame, Americans will sleep peacefully at night regardless of the power the government takes for itself to protect us from the enemy.

There will always be an enemy.  The war will never end.  And our President has signed to himself and those who will follow him in office the power to override the Constitution when he chooses to do so.  That he has “serious reservations” brings little comfort.  He’s free to screw up his own legacy, if that’s what he wants to do, but this is a blight on our legacy.  Just shameful.

As awful as one might view the sausage-making in a criminal courtroom, it’s downright sanitary compared to the slaughterhouse of immigration court.  For United States citizens, even those whose backsides have left a permanent imprint in the courtroom bench, there’s little concern about it.  After all, they’re immigrants. They’re not “real Americans,” so what difference does it make what happens to them.

As states craft laws and send out police to further harass anyone with a vowel at the end of their name, an accent, or (OMG), a dark complexion, there aren’t many “real Americans” who worry about their treatment.  At best, they have their own problems. At worst, they applaud such indignities, better to get rid of those “illegals,” as any immigrant is called, even if they’re just hijacked off the street and thrown on a bus to Tijuana. Adios, muchachos.

Nonetheless, the United States actually maintains a legal system of sorts for the purpose of determining whether immigrants, individuals who are here lawfully but have yet to attain (or, for whatever reason, have chosen not to try) naturalized citizen status.  You remember citizen status? It’s what your grandfather was granted when he wasn’t exactly a desirable neighbor, yet he got his chance in a nation that embraced him when his own was all too happy to see him go.  The nation that treated him fairly, when there was little he could do to obtain fairness on his own.

As the  New York Times editorial notes, our very own immigration courts have become a stronghold of arbitrariness.

In Judulang v. Holder, the failure was total: a decision on deportation that made no sense. As Justice Kagan pointedly wrote, “We must reverse an agency policy when we cannot discern a reason for it.” That judgment, unfortunately, applies to much of the snarled and absurd processes in the immigration courts.

Way back when, there was a safety valve for non-citizens who were convicted of a crime.  Criminal defense lawyers may not have known much about immigration law, but we all knew §212(c), an application for relief from the sometimes onerous punishment of deportation following a criminal conviction.  But they’re criminals, you say. They don’t deserve to remain here, in the greatest country the world has ever known.  And when the citizen, one step removed from immigrant status, does the same dirty deed, you can hear them screaming about due process throughout the courthouse.

There were certainly bad dudes with a green card, who came here two weeks ago to sell a few kilos or knock over a liquor store.  But there were also people who arrived at two weeks old and lived here for the next 27 years, working hard, paying taxes, marrying the girl next door and having beautiful babies. The only thing they didn’t have was their citizenship papers. We treated them both the same, except that the latter could find solace in a §212(c) waiver of deportation.

Then Congress repealed it, because it was too reasonable, but the door was left open just a tiny crack under the assumption that the folks who ran the immigration court cautiously use it to limit the worst of the new laws harsh applications.

In determining whether Mr. Judulang could apply for a waiver from deportation, the board looked to a repealed law, which dealt with excluding aliens from admission to this country. If the basis for deporting an alien is “essentially equivalent” to a basis in the law for excluding someone, the board said, the deportee could apply for a waiver. But it ruled that Mr. Judulang could not because the grounds for his deportation were not comparable to the grounds that apply to exclusion.

Justice Kagan properly pointed out that this analysis was essentially arbitrary. The board made “an irrelevant comparison between statutory provisions,” which had nothing to do with Mr. Judulang’s fitness to remain in the United States. Instead, it turned a deportation decision into a “sport of chance,” like “flipping a coin — heads an alien may apply for relief, tails he may not.”

The immigration lawyers I know have told stories about the bizarre and arbitrary treatment of their clients for years.  They talk about immigration judges who make no sense at all, who wave their hand and make any semblance of law disappear.  The immigration judges treat the lawyers only slightly better than the treat the clients, who they treat like dirt.  That such a fiefdom exists in the underbelly of the legal system, where immigration judges are largely ignored by real judges under the claim of “deference,” and where the lawyers, usually grossly overburdened and underpaid, struggle to explain life down the rabbit hole on its best day, are more likely to be chastised for sloppy work in comparison to other federal practitioners rather than be appreciated for managing to get anything done at all.

The the Supremes took this case at all is something of a shock.  Nobody wants to look too closely at the festering boil of our immigration courts. That a unanimous Supreme Court held Board of Immigration Appeals’ application of §212(c) to be “arbitrary and capricious” is absolutely extraordinary. 

It’s ironic that the system developed to deal with those who come here seeking a better life for themselves and their children are subject to the very worst our legal system can dish out.  With all the problems confronting the nation, not to mention the ones that weigh heavy on lawyers in trying to keep a fragile legal system from failing altogether, the nastiness of life in immigration court rarely makes our radar.  That the Supreme Court, unanimous at that, smacked the BIA for its arbitrary treatment of immigrants under §212(c) should make us proud.

This is no longer a nation that thinks well of immigrants, and concern for their fair and lawful treatment isn’t going to get anyone elected to dog catcher.  And yet the Supremes did right by them, and by us.  If only we could clean up the rest of the cesspool of immigration court.  But then, you’re a citizen, so what do you care? 

For the fellow Luddites who read this, you’re going to need to know what Godwin’s Law is in order to understand what follows.  Also known as Reductio ad Hitlerum,  Godwin’s Law states:

“As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”

Put less mathematically, it means:

Godwin observed that, given enough time, in any online discussion—regardless of topic or scope—someone inevitably criticizes some point made in the discussion by comparing it to beliefs held by Hitler and the Nazis.

While formed in humor, no one who has spent time in the virtual world doesn’t realize that Godwin nailed it, that all argument and discussion devolved to the most simplistic, the lowest common denominator. You will not see a reference in a comment here to Hitler or the Nazis.  Not because they aren’t made (they are, all the time), but because I refuse to allow it to post.

There is a branch of Godwin’s Law that applies specifically to criminal law blawgs, which brings me to Corollary 92, addressing any aspect of our fragile criminal justice system by Reductio ad Tyrannidem: Every example of impropriety or abuse by police, prosecutor or judge proves that we live in a police state, our elected officials are tyrants and the Constitution is dead.  It’s usually preceded in its expression by the words, “the real problem,” or a variation thereon.

To arrive at the conclusion, every issue is reduced to its simplest, least nuanced, unidimensional form, as is the case with Godwin’s Law, the battle of good and evil.  While I can appreciate the anger and frustration felt by those who run headlong down this path, and sometimes share the sentiment, it’s not helpful.

First, it’s wrong. You think otherwise, which is fine but irrelevant.  While the depth of thought attempted here may not rival the great philosophers, it remains above the median of a rock convention. This is a law blog, written for the purpose of discussing, understanding, critiquing and applying the various aspects of the criminal justice system to the world in which we live and function.

A comment that states an unsupported opinion is not an argument that demands address. It’s nothing. You think so? So what? This is particularly true of anonymous commenters, who invariably think their assertion that chocolate taste far better than vanilla proves their conclusion that all cops are evil. It proves that you are wearing a tin foil hat (internet shorthand for “you’re insane/irrational”).

Any point that relies on your personal experience or observation is meaningless in the absence of a demonstration of your credibility. Credibility is not self-attributed, even though you are absolutely certain that you deserve the trust and approval of others because you know how right you are.

Familiarize yourself with logical fallacies. These are the rules by which thoughtful argument happens, where commonly used but meritless arguments are bandied about among people who lack the capacity to distinguish a valid point from an assertion that may seem superficially valid but fails to comport with basic logic.  There are a lot of logical fallacies, and most people use them regularly to make their points. Even lawyers use them on occasion, whether because they don’t know better or they are trying to trick the unwary.  But they are fail the test of reason, and rather than sustain your position, reveal you as irrational.  Be rational.

This is not meant as a means of denigrating the views of non-lawyers, though lay-people most frequently violate Corollary 92.  But lawyers often do as well, whether because their grasp of reason is poor or they wear a tin foil hat that matches their three-piece suit.  Sometimes lawyers are as frustrated with the system as anyone else, often because they deal with it more intimately and regularly than anyone else, and grow tired of the effort of defending or explaining every subtlety. Understandable as that may be, it’s unacceptable in that it contributes nothing to a greater understanding of the system.  Irrational lawyers are worse than irrational non-lawyers. We have no excuse.

Finally, it doesn’t matter whether your point agrees or disagrees with mine, a detail that causes more anger than any other. You agree, and thus find my critical reaction offensive because “we’re on the same team.”  This isn’t a team sport. A ridiculous, ignorant, irrational comment that agrees with me is no less ridiculous, ignorant and/or irrational. There is a rule here, that no one should be made more stupid for having read something here.  It’s a hard rule, I know, but one which I will do my best to enforce.

Corollary 93 is more a matter of mechanics than substance. If you failed to make a valid point in your first comment, chances diminish considerably in your next 12.  If you failed to make a valid point in 100 words, spreading it out to 3000 won’t help make your point any more valid.

If your point was disputed once, responding with increasingly emphatic insistence that “NO, I AM RIGHT!!!,” using typographical gimmicks to enhance the appearance of your argument, copying in the text of the Fourth Amendment with the obligatory “it means exactly what it says,” referring to Publius or Federalist Paper 37, citing Marbury v. Madison, etc., is not going to win the day.  I realize you think it should.

If you’ve made your argument and it hasn’t received the reaction you desire, do not repeat it more emphatically. Others will read it and the response and make their own decisions. There is no “win” to be had. Stop digging.

This is a law blog. It is not a political blog. There are many political blogs, where points, no matter how irrational or misguided, are applauded because they comport with the goals the blog seeks to promote. If that’s what you seek, find a political blog that suits your taste and you will be embraced by others who share your views.

In 2012, a goal at Simple Justice is to elevate the tenor of discussion and thought. The insanity and stupidity are wearing on me, and just because you have a keyboard and internet access doesn’t mean you have something meaningful to contribute.  Your cooperation is appreciated.

Karma may be the cosmic law of moral causation, but in Pinellas County, Florida, its apparently grounds for arrest.  As Radley Balko reduced it to a twitter equation :

Zero tolerance + anti-bullying backlash + Internet = Criminal charges for an innocuous Facebook post.

Allie Scott is a junior at Osceola High School. The 16 year old says it all started in the school parking lot last month when she parked her brother’s car in another girl’s spot. She was asked to move it, and when she did at the end of the day, the car had been scratched up with a key.

Without naming who she thought did it, she posted this comment on her Facebook page: “Oh, so you keyed my car. Your karma is going to be a whole lot worse than that.”

Whether karma means what she thinks it means isn’t the point. It certainly wasn’t the point when she and her mother were called into the school administrators office, where they were met by the Sheriff and learned that Allie would be charged with stalking.

There are so many ways to consider the depths of stupidity plumbed by this bizarre use of law to address conduct that, at least arguably, smells of crime.  But this conduct, telling someone that karma is going to bite her in the butt, is too far a stretch for any rational person.  But then, Schools Have Rules, and rationality is never a consideration when it comes to the rote application of discipline.

Allie Scott was suspended for three days for leaving her karma content, which in itself seems sufficient to blow a share of a pension for whatever administrator came up with this brilliant punishment.  More importantly, she’ll carry the stigma of both the discipline and the arrest, even if someone in the Pinellas County prosecutor’s office makes a half-thoughtful decision to toss the case and ream out the sheriff for bringing humiliation and shame on law enforcement.

But then, it’s Florida, and Florida has never been known to let thought interfere with prosecution.

The unholy consortium of knee-jerk liberal protectionism (no child’s knee should ever be skinned) and staunch law and order conservatism (no paper cut should ever go unprosecuted) has resulted in a grocery clerk’s wet dream.  Radley’s equation is painfully accurate, with the removal of all reason from our absolutist treatment of children.

Do we absolve Allie because of free speech?  Do we absolve her because there was no harm done?  Do we absolve her because there is simply nothing criminal, not even wrong, about writing to another that karma will fix her wagon?

To call the arrest of Allie Scott crazy is to state the obvious. That both a school district and a sheriff’s office would nonetheless indulge in such insanity is the piece that would make a good subject for Kafka.  Our treatment of our children has to involve some greater degree of independent thought than reflected here, and yet neither schools nor law enforcement seem capable, or willing, to risk censure for failing to adhere to formulaic reactions.

It’s quite possible that Allie’s Facebook posting hurt another girl’s feelings, though even that isn’t necessarily clear or justifiable.  These days, it seems any comment shy of “you’re awesome” hurts someone’s feelings.  The teacups will no doubt inform me that I don’t appreciate how horrible it is to feel badly about oneself, the latest craze in wallowing in victimization.  If uttering the word “karma” is enough to set someone off, imagine the damage to self-esteem the old “sticks and stones” saw would do.

What’s lost in the insanity of rule by rote is that there is real harm done, just not to the purported victims.  Perhaps Allie Scott is the nastiest girl in Osceola High School.  Perhaps she’s up for valedictorian and a shoo-in for the Ivies.  Who knows?  Regardless, there is no justification for tainting a 16-year-old girl, for shutting one’s eyes, putting on that smug administrative smile, and checking off the box that will impact the rest of her life.

For a society that uses ‘for the children” as its rationalization of so many dubious initiatives, isn’t it worth the five, maybe ten, minutes of thought necessary to recognize that the equation doesn’t apply.  Would it kill a school administrator to take the chance of some mother’s reproach by saying, “no, she didn’t do anything wrong”?

These are children.  We care about them, all of them.  If real harm is done, we need to deal with it, but we also need to be able to distinguish between actual harm and the mindless application of rules by grocery clerks.  Spend the five minutes. Think about whether the conduct involved demands the application of the equation.  Don’t be the instrument of harm.

And if you’re worried about the other kid’s mother calling you a name in front of the school board for not protecting her darling teacup from feeling bad about herself, be aware that the internet might have some unpleasant things to say about you as well.  And that goes double for the Sheriff, who can’t possibly think that arresting Allie Scott for uttering the word karma on the internet was a sound decision. Yes, karma is a bitch.

This idiocy is harming our children.  Stop doing it.  Stop doing it for the children.  Is any of this getting through to you?