One conceit lawyers allow ourselves is to repeat the platitude that we are nation of laws, not men.  Laws pass through men to get to us, and exist only as the vision of a majority of nine say they do.  If it was so clear and easy, we wouldn’t need the nine to explain it to us over and over again.  We do. They do. And so it’s been since John Marshall started the ball rolling.

One of the nine has taken us to task for “undermining the court and endangering the country by weakening core institutions.”  If true, this is a damning allegation.  In an LA Times op-ed, however, George Washington lawprof  Jonathan Turley argues that Clarence Thomas’ complaints reflect a deeper problem, not with the institution but the speaker.

Louis XIV of France was infamous for his view that there was no distinction between himself and the state, allegedly proclaiming “L’État, c’est moi” (“I am the State”). That notorious merging of personality with an institution was again on display in a February speech by Supreme Court Justice Clarence Thomas before the conservative Federalist Society.



Justice Thomas was fending off attacks based on his wife’s activities, and monies paid in compensation therefore, and the omission of mention in his own financial disclosures.

Virginia Thomas was receiving money from groups that had expressed direct interest in the outcome of cases that came before her husband, including Citizens United vs. Federal Election Commission, in which the court in 2010 struck down limitations on corporate contributions to elections.

A justice is expressly required by federal law to recuse himself from any case “in which his impartiality might reasonably be questioned.” This law specifically requires recusal when he knows that “his spouse … has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”

There is little doubt that Justice Thomas’ sympathies, if that’s the right word, would have resulted in the precise same decision in Citizens United and every other case before the Court, regardless of Ginny Thomas’ compensation or endearment to causes.  Nobody suggests that Justice Thomas was, in fact, compromised by the payments.  Still, his failure to disclose that his wife was on the payroll for 13 years isn’t an institutional failure.  It’s a Thomas failure.  One of the nine did wrong.

Yet he offered neither remorse nor explanation.

Instead, Thomas suggested that his critics were endangering freedom by undermining his authority and, by extension, the authority of the court. He insisted that his wife was being attacked because she believes in the same things he does and because they were “focused on defending liberty.” He added:

“You all are going to be, unfortunately, the recipients of the fallout from that — that there’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties…. And that’s long after I’m gone, and that could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.”

“Defending liberty” sounds like a wonderful thing.  Like Justice, who would argue against it?  Some of us fail to see Justice Thomas’ or Ginny’s connection to “defending liberty,” but then that’s more a matter of one’s politics and what (and whose) liberty is at stake.  Not be belabor the point, but liberty (like justice) is in the eye of the beholder and check endorser.

Turley see Thomas’ conversion of an attack on him to an attack on the institution as

…Thomas’ Louis XIV moment. Thomas appears to have finally merged his own personality with the institution itself. Thus, any criticism — even criticism that he is harming the court — is an attack on the institution. It is more than an embarrassing conceit; it can be a dangerous delusion for any justice.

But the question is whether Justice Thomas actually believes what he’s saying, or is using well-tested rhetoric designed to enrage his base of support and rally support for the Thomases.  Professor Turley’s indictment of the royal conceit accepts Justice Thomas’ statement at face value.  It strikes me as a stretch.

It would be one thing if Justice Thomas was of the view that the attack was manufactured out of thin air, baseless and frivolous.  Certainly the attack comes primarily from those who disagree with him politically, but that doesn’t mean it isn’t well grounded and accurate.  Indeed, it appears abundantly clear that Thomas deliberately concealed material information from required disclosure.  While it may feed his political enemies, it was his choice to give them the ammo.

Caught with his pants down (metaphorically, at least this time), he’s fighting back, using what he likely believes to be effective talking points amongst his supporters.  He isn’t really suffering from the Louis XIV delusion, confusing himself and the Court.  What he’s doing is worse.

The credibility of the institution of the Supreme Court of the United States isn’t based upon the political persuasions of its members, as much as the integrity, both intellectual and real, of the nine people who are temporary stewards of its high back chairs. 

If Clarence Thomas meant what he said, it could be chalked up to delusions of grandeur, a psychological issue that might well establish him as being a proper representative of Americans who similarly suffer from mental defects.  He might, in fact, be considered sympathetic, maybe even protected.

But if Thomas is spouting inflammatory rhetoric, the talking points of politics to deflect his own wrongdoing, his cheating the court and American people of his honesty and integrity by compounding his deception by omission with affirmative lies, then he has blown his integrity as well.  Before he was just an arch-conservative guy who was usually wrong and didn’t talk too much.  Now, he’s a liar.

Is Justice Thomas psychologically damaged?  Is he so ignorant as to be incapable of understanding that he is but a member of the court, not the institution himself?  I find both impossible to believe, regardless of my thoughts on the thoughtfulness of his politics.  That leaves only the worst of all possible choices to explain Thomas’ rally to the troops.

Oddly, then, Thomas is right to warn that there is something “undermining the court and endangering the country by weakening core institutions.”  That would be one of the nine who has given away his integrity in an attempt to deflect responsibility for his wrongdoing.  That would be Justice Clarence Thomas.  And that isolates him from the rest of the nine.

What if there were secret breeding grounds for future policy leaders where they were instilled with fundamental beliefs that there are good and evil political ideals, taught that there are truths of right and wrong, and when the minds of these future leaders were so completely brainwashed and controlled as to leave no doubt how they will twist the future to meet the policy vision beat into their brains, set out on the world to do subvert it to their vision?

Walter Olson says there are such places.  They’re called law school.

In Schools For Misrule: Legal Academia and an Overlawyered America, Walter aims both barrels and pulls the trigger.  The book is classic Olson, witty, caustic and facially challenging to the Academy.  The poke in the ribs is unmistakable, and  early signs are that  it’s going to get a rise out of some of the more intellectually honest lawprofs.

Walter’s attack strikes at two levels, the first being the more obvious, and consistent with his work at  Overlawyered and the  Cato Institute  (and the Manhattan Institute before it), that law professors tend to be slavishly liberal in their views, and use their position as a platform to manufacture baby liberals to go out in the world as future leaders. 

Whether this is a good or bad depends on where you stand.  If you prefer those policies objectives, meaning that you’re inclined to believe they are good and positive, the right thing for the country, then Walter’s first shot may not strike home.  After all, the reason some ideals are characterized as “politically correct” is that a lot of people think they are, well, politically correct.

Still, a warning.  While the use of law schools as an incubator of liberal politics may not cause you to break out in hives, you may find Walter to be awfully persuasive in challenging simplistic notions of right and wrong, good and evil, that characterize political correctness. If your interest extends beyond people applauding you for agreeing with them, and actually comes anywhere near achieving a better understanding of issues and interests at stake, then Walter’s challenge may give you pause to rethink your knee-jerk reactions.  He may not turn you into a full-time libertarian, but he will add enormously to your understanding of what’s at stake and why the solutions aren’t nearly as clear and easy as you thought.

Then there’s the second level, the one that grabbed me by the collar and shook me up.  I now suffer from Shaken Lawyer Syndrome.  If only there was a cause of action.

Bad ideas in the law schools have a way of not remaining abstract. They tend to mature, if that is the right word, into bad real-life proposals. Bad ideas in university French departments are of self-limiting importance, given that people on the outside are likely to go on speaking French in the usual way. Bad law can take away your liberty, your property, or your family.

The fundamental nature of instilling a belief that one political perspective is right and any others are wrong is to close minds and prevent thought.  Law students enter into the deal with the belief that their professors are honest brokers, teaching them what needs to be taught to a budding lawyer (and coincidentally budding future policy leader).  They have good reason to trust that these people, attributed with the utmost credibility as being worthy of shaping young minds, will tell them the truth.  As if there’s a truth to tell.

There’s little doubt that Walter is correct in asserting that some of these law students will eventually find themselves in positions of power.  Contrary to the great unwashed who see no virtue in knowledge and education when dealing with legislation, a legal education has a critical place in government, not to the exclusion of engineers, nurses and sanitation collectors when it comes to policy choices, but in having the training to appreciate how the deal works. 

Bill Clinton and Barack Obama, “both a law school graduate and a law professor,” (a  somewhat dubious allegation) are held out as examples to show how our political leaders were reared in “an environment of overwhelming leftism.”  No mention of how George W. Bush fit his two terms in between them, but the point is that they both, in the eyes of conservatives, are extremists. The point is that they reflect an abundance of influence in government of lawyers, and therefore an abundance of influence in the formation of political thought by the idea-instillers of their youth, lawprofs.

The lack of balance in the education of future leaders is the problem.  Whether it’s lefty or rightly, the problem is that future leaders are indoctrinated rather than taught to expand their views, understand all sides and corners of the issues, not be trapped by political ideology so that they are incapable of considering the many interests, factors, consequences of policies, and how they affect people.

No one point of view owns righteousness, and the failure to recognize this and teach it to those who will someday have their hands on the wheel reflects a massive failure of the legal Academy.

There’s a very real question whether the nice men and women who are now entrusted with young minds are capable of doing anything beyond instilling their own political beliefs in their students.  Many simply can’t see any other points of view, or feel it would be dishonest to teach something they don’t believe in (as if their political sensibility is the bar for everyone). 

Others are intellectually dishonest, an issue I’ve discussed with Walter in the past, willing to lie, cheat and steal to pursue an irrational political agenda because of how strongly they personally like the outcome.  And they have no qualms manipulating thought to achieve their ends and stifle anyone who might challenge them.  It’s considered extremely rude in the Academy to call someone intellectually dishonest, so these people play on the politeness (and wimpiness) of others to ram their crap through.  And we can anticipate that it will someday become accepted policy when our leaders embrace is as an article of faith taught them in their formative years. 

What Walter Olson offers in Schools for Misrule is a challenge to the Academy to clean up its act, stop teaching liberalism as the only good policy and keep their mitts off the minds of our future leaders.  Will they take the bait?  Left to their own devices, not a chance.  There’s no group more inclined to circle the wagons and whimper to each other that they are the best and brightest, and outsiders are too mean and uncouth to be worthy of their attention.

Which means it’s left to the rest of us, lawyers, pundits and those few lawprofs who have the guts to challenge their brethren, even in the typical tepid tones that characterize communications between intellectuals, to hold their feet to the fire.  Will they?  Will we?  If we want better for our future, then we have no choice but to shake it up. 

In Walter’s honor,



***

It should be noted that this isn’t really a review of Walter’s book.  That’s because I received a pdf file of the book rather than a hard copy for review, hand inscribed with the requisite words,”To that great humanitarian, Scott, for all he’s done to expand my horizons and make my world a better place,” so I can put it on my library shelf and stare at it with self-serving pleasure.  Also, the  Publisher’s Weekly review pretty much captures my thoughts on the book itself, and there isn’t much point in saying it again.  If it’s not worth the stamp to Wally, then who am I to disagree?

They call it footnote 9 in Guilderland.  Yes, Guilderland, but if you voted the Libertarian Party line in the last New York State election, then it might mean something to you as well.  From the Times-Union :

The issue stems from an April 2008 query to the committee by Albany County Judge Thomas Breslin, the supervising criminal court judge in New York’s Third Judicial District.

[Warren] Redlich had been sworn in as a Town Board member three months earlier, raising concerns from the district attorney’s office and town attorney that his continued handling of cases originating in Guilderland created an appearance of a conflict.

The concerns included that the Town Board has disciplinary and budgetary power over the police department and court staff and appoints the town attorney, who serves as prosecutor in traffic court.

Breslin’s letter triggered a confidential February 2009 letter of caution to Redlich from the committee, informing him that not only did his law firm have a conflict of interest but also that the firm’s website contained statements that were “misleading, oversimplifications and exaggerations.”

Now what reason would that be not to hype yourself on your website, lest it somehow find its way into the hands of the disciplinary committee?  Not only did Warren Redlich have a website, but a blog as well, though it transformed from blog to, well, something else when he ran for Governor on the Libertarian Party line last election, where he got more than 48,000 votes. 

Not a bad showing, especially for a Republican, but he lost.  And he returned to both Guilderland and the courthouse trenches, which presented a bit of a problem for the Guilderland town board member because the conflict of interest.  Warren wasn’t going to stand idly by while his livelihood was taken away, so he sued. 

A judge has dismissed a federal lawsuit filed by Guilderland Town Board member Warren Redlich challenging a state attorney-watchdog panel’s finding that he cannot practice law in a court whose budget he oversees.

The case thrust Redlich, a Republican and one of the region’s most colorful political figures, into direct conflict with U.S. District Judge Gary L. Sharpe, a no-nonsense jurist who has shown an unwillingness to suffer lawyers and defendants who cross him.

Buried within Judge Sharpe’s decision is footnote 9.

“Mr. Redlich continues to display an apparent disregard for the time and resources that this court must expend in interpreting his poorly-drafted pleadings and analyzing his sloppily-constructed and thinly-researched memoranda,” wrote Sharpe, who presided over the corruption trial of former state Senate Majority Leader Joseph L. Bruno.

“Whether this disregard stems from laziness, incompetence, bad faith, or some combination thereof,” Sharpe continued, “Mr. Redlich should be mindful in drafting future submissions that the court’s patience has worn thin.”

It was the smack heard around Guilderland.  I can feel the sting here.  Just brutal. 

But no Republican cum Libertarian (for the uninitiated, the Libertarian Party in New York isn’t really libertarian, but pretty much a cash and carry proposition) would such a bench slap without retort:

“You can read the memorandum I submitted, and I cited more cases than he did,” Redlich said of Sharpe’s decision…

Well, no, Warren.  The winner isn’t the guy who cites more cases.  At least not outside of Guilderland.

There’s a price to be paid by those who run for office.  Even lawyers.  That price is not to engage in conduct that involves inherent conflict of interest, such as having cops and judges whose budgets, salaries and benefits are dependent upon your vote.  I fully accept Warren’s statement that he would never use his vote on the town board to curry favor or as a threat.  So what?  It smells bad, and that’s all it takes to create the appearance of impropriety.  Lawyers can’t do that.

I similarly realize that it’s tough to maintain a criminal law practice in the hinterlands.  They dont commit enough serious crimes.  Sure, they have their share of drunk driving and cow-tipping cases, but it’s hard to maintain a decent lifestyle on that.  And even when they do commit murder, they either can’t afford a lawyer or go pro se.  No, it’s not easy up there.

Still, the conflict of interest rules apply, even when it means you can’t represent defendants in your own town.  This is the sort of thing that one ought to consider before running for office, no matter how strongly one wishes to serve his neighbors, or how many cases one can cite in a string.

And frankly, Warren, it really wasn’t a good idea to use your mother as the plaintiff in your federal action to claim a deprivation of Sixth Amendment right to counsel of choice.  Aside from the right not being absolute, your mom hadn’t been charged with anything.  Yet.

H/T David Giacalone

During a transitory foray into the land of twitter yesterday, I came across  a twit by my dear friend Kevin O’Keefe (who I believe to be Irish), honcho of LexBlog.

Can/should lawyers blog/tweet about pending cases? Just got off phone with reporter on this.

How peculiar, I thought.  So I  twitted back at him, “Why would a reporter ask you?”

Kevin responded, “I may know a few things on the subject.”  I replied, “It would seem that you might be the worst person to ask about such things.”

My interest wasn’t so much piqued by the fact that it was Kevin we’re talking about, as I have faith that Kevin, who practiced law long and hard and who has steadfastly maintained that blawgs are an adjunct to excellence rather than a substitute, would not only give a good soundbite, but appreciate the ethical implications.  No, Kevin would do fine.

But the “why” part remains the same.  As far as any journalist would know, Kevin is a guy who sells blogs to lawyers for a living.  Why would a journalist ask a guy who sells blogs to lawyers about whether blogging/twitting about pending cases is a good idea?  If someone is going to write about this very sensitive and problematic subject, where should he turn?

This is what troubled me.  Usually, it bothers me when I see some lawprof quoted on the hardscrabble, nitty-gritty reality of the courtroom, because journalists love to beef up their work with the ascribed credibility of law professors who know everything there is to know about the practice of law.  And so the journalist writes, the lawprof opines, and those of us who have a clue what’s beneath the surface cringe.

I’ve written much about lawyers so beloved of seeing their names in print, their faces on the tube, that they will run down to the local journalist like Odie the dog, tongue a’waggling, for the chance to offer an opinion.  The fact that they know absolutely nothing about the subject or case doesn’t slow them down for a second.  The fact that they have absolutely nothing to contribute is irrelevant.  Hey, Ma!  I’m on TV!!!

Now comes an opportunity to say a few words to the journalists, a pretentious word in itself, about their source of information.  Understand that the journalist, foundationally, is there to write, read, report.  He is not the expert on the subject at hand, but sufficiently adept at reporting about things unknown to him to earn his pay.   And so the reporters turn to others for the color and expertise.  Time constraints demand that they cut a 27 minute explanation down to 10 seconds, but that’s perfect give our attention span.  Like twitter, the sound bite is an art.

But it similarly requires the journalist to have one additional skill, and a critical one at that.  To be capable of identifying a credible source of information as opposed to a warm body with a law degree or a blog.  Aye, there’s the rub.

I sent Kevin an email after our twits asking him what he told the reporter.  He didn’t respond.  He’s probably pissed at me.  You know how those Irish guys can be.  But I fully expected him to tell me that he explained how lawyers had to be critically careful writing about pending cases, concerned with disclosing confidences, revealing strategies, giving up information that inure to their clients’ detriment.  I’ve no doubt that Kevin knows that the client comes first, and said as much.

The question that remains is what kind of reporter would decide to ask a guy who sells blogs to lawyers, rather than ask lawyers who blog, for comment.   As  Rick Horowitz noted in his twit on the subject, it’s not “[b]ecause there were no lawyers available.” 

We often wonder why the public understands so little about what lawyers do or what some case or issue means.  One problem is that meaningful answers require more than 10 seconds, even if that’s all the time they have to flesh out the substance of a story after the 3 minute introduction, 3 minute loaded question and 3 minute conclusion.  The other problem is that the mouthpiece, the talking head, the expert, may be nothing more than a warm body with some title that gives the appearance that he can offer an opinion.

To that end, have you ever noticed how often the person speaking about a criminal matter is captioned as “former prosecutor?”  Anybody want to venture a guess why a lawyer whose voice can be linked to some official government title has more TV cred than someone who does whatever it is that relates to the subject?  Kevin?

There’s one thing you can bank on, however.  If there’s an open mike and rolling camera, they will never be shy of lawyers willing to talk, whether they’ve got something to say or not.

It looks like Mirriam Seddiq has worked through her  writer’s block to post about a Fourth Circuit decision. 

[T]his week, the Fourth Circuit, in case called U.S. v. Foster,  pushed back and said hey, listen, we give you a ton of leeway in violating people’s rights conducting your investigations, but you need to cut it out, Government, and actually have SOME reason to search a person’s car.

Ok, let’s step back and give you the facts in this case, they are pretty simple and straightforward.  Police officer Ragland is having lunch with his wife.  He walks back to his car and notices a black male sitting in an SUV.  As he continues to walk he sees the black male’s mouth move and then another person pops up out of the passenger side and the passenger’s arms start moving (going ‘haywire’ the cop says, although he can’t actually see the arms above the elbow).  Ragland recognizes the passenger as David Foster, see the cop used to date Mr. Foster’s cousin and so they knew each other.  Also, Ragland had arrested Mr. Foster on some traffic stuff and knew he’d been arrested for marijuana. 

Ragland walks by the SUV and says hi to Mr. Foster and asks what they are doing.  The response is something innocuous “chilling” or some such phrase.  Then, for some reason Detective Ragland goes to his car and calls in to another officer and finds out Mr. Foster is under investigation – for what is not clear.  So, cop 2 shows up and Ragland and cop 2 block the SUV and search it.  Inside they find cocaine, scales, and all sorts of other bad stuff that people are not allowed to have.

We also note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. We recognize that we must look to the totality of the circumstances when evaluating the reasonableness of a stop. Arvizu, 534 U.S. at 273. However, an officer and the Government must do more than simply label a behavior as “suspicious” to make it so.

§§§

Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception. Although these matters generally only come before this Court where a police seizure uncovers some wrongdoing, we would be remiss if we did not acknowledge that the exclusionary rule is our sole means of ensuring that police refrain from engaging in the unwarranted harassment or unlawful seizure of anyone—whether he or she is one of the most affluent or most vulnerable members of our community.

§§§

We appreciate that police are often called upon to make very difficult decisions about when to conduct Terry stops, and, for that reason, we give them leeway to make these determinations. Nonetheless, the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.

Certain words and phrases have become entrenched parts of the law enforcement lexicon, as required to skirt the black letter of the law.  Don’t blame cops, as courts hand them the solution to their problem on a silver platter.  Consider, for example, a long-time favorite of all criminal defense lawyers, furtive gestures.

When’s the last time you used that phrase, furtive gestures, at a cocktail party or when hanging out with friends?  Hey, Joe, seen any furtive gestures lately?  Susie, watch those gesticulating arms, as someone might think you’re making furtive gestures.  You can be reasonably assured that anyone who talks this way, except at a law student party, is not likely to get lucky that night.  Note:  The rule is different for law students, who tend to be remarkably indiscriminate and get turned on by hearing words from class repeated in social settings.

Of course, it’s possible that the police could fabricate suspicion from whole cloth, claiming a furtive gesture when there was no gesture at all.  After all, who could dispute it?  But for the purpose of this post, let’s assume that the police aren’t being totally disingenuous, but rather relying on their spidey-cop sense of seeing something and, as noted by the Fourth Circuit, bootstrapping it into a post hoc rationale because they found something.

Ever notice how nobody who ever put a gun under a car seat managed to get it all the way under?  There’s always some part of the gun sticking out from under the seat so that any cop who looks through the window into the interior can see it in plain view?

Ever notice how a bag of marijuana, triple heat sealed, placed into an air tight container in the trunk of a car, still emits a “poignant” odor when the driver of the vehicle cracks open his window?  Nonetheless, the search of the vehicle begins with the glove box and not until 15 minutes later, having found nothing, does the officer get around to opening the trunk? 

The unfortunate fact for those criminal defendants found in possession of contraband is that they are alive.  Being alive means that their bodies remain reasonably mobile.  Arms move.  Heads tilt and turn, sometimes in ways that are unpredictable to those observing from outside a vehicle.  After all, if someone is having a conversation with another person in a car, they might be inclined to turn their head toward them, maybe even nod in agreement.  Some cultures even gesticulate with their hands in order to emphasize a point during a conversation.

From outside the car, one would have no clue why the person of interest is moving about, turning to and fro, bobbing and weaving in a way that could indicate that he is concealing evidence of massive quantities of narcotics.  How could they possibly know such a thing?  And so suspicion is aroused.

These are the mundane realities that are either utterly inconsequential or transformed into sufficiently suspicious to obviate our right of privacy based upon the rhetorical skill of a cop and prosecutor to articulate suspicion.  By merely attaching magic words, like furtive gesture, to the actions, protections magically fly away and, with the blessings of court after court, judge after judge, we are searched.  And if we have something nasty, it is seized.

Enjoy this decision from the Fourth Circuit, and repeat its language often.  Still, the converse of the decision, that sometimes furtive gestures are furtive, and sometimes the smell is pungent poignant, is true.  And another court, or maybe the Fourth Circuit as well, will take the exact same mundane conduct and hold it to clearly and obviously show that criminal activity is afoot.

When I first read Orin Kerr’s post at Volokh Conspiracy, I sent him an email asking, essentially, “are you nuts?”  Why, oh why, would he incite and empower the nutjobs?  But he did, and he did so intentionally as part of a pedagogical challenge so others could understand.  I admired his fortitude.  I particularly admired it from afar.

To understand what the heck I’m talking about, you have to read the original post.  It’s short, so go now.  I could repeat it here, but that would be wrong when you can read the original.  I’ll wait. (tap, tap, tap, tap.)

Caveat: This post is about the commenting dynamics of non-lawyers on legal issues, not the merit or clarity of Judge Vinson’s decision.  Anyone commenting about the merit or clarity of Judge Vinson’s decision will be ridiculed unmercifully by me. 

Roger Sherman says:

Mr Kerr:
Your post is why most Americans who are not lawyers hold your profession in contempt.
From Judge Vinson’s (original) decision: “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.“
Are you really serious that the meaning of such a simple declarative sentence is not clear to you?

Roger Sherman says:

Mr Kerr:
No, I’m not a lawyer. I’m an electrical engineer with a master’s degree in in the field of semiconductors. Is this how you attempt to dismiss other opinions and not deal with the premise of the comment? Again, contempt.

When I first started SJ, the Queen of New York law bloggers was Rochester’s Nicole Black, with her foundational blog, Sui Generis.  It truly was the backbone of New York blawgs, and Niki was more than just a player.  Niki was the Queen.

Over time, Niki’s interests drifted toward technology and its interconnection with the practice of law.  She had a unique perspective, given that she went from criminal defense lawyer in the trenches to mommy-track, and then creating a niche to suit her lifestyle and reality upon her return to the outside world.  It ain’t easy being a mother, and Niki was determined to find the right place for herself.

Niki has given me some awfully good tech advice over the years, for which I’m very grateful.  Even a luddite like me knows that telling a computer it’s stupid isn’t a viable approach.  It’s here, it’s queer, get used to it.

Thats why I pay attention to Niki’s prognostications on the future of blogging.  She’s got her finger on the pulse of technology, and I can barely find its wrist.  And Niki says blogging is dead.

A recent report (http://www.pewinternet.org/Reports/2010/Generations-2010.aspx) issued by the Internet and American Life Project at the Pew Research Center supports my conclusions. According to the report, for the younger generation, blogging is being replaced by posting on social media sites such as Facebook and Twitter. In comparison, the older generations, always the last to latch onto new trends, are finally beginning to blog.

The statistics regarding blogging from the report indicate that between 2008 and 2010:

• Blogging dropped 2% for 18-33 year olds
  
• Blogging increased 6% for 34-44 year olds
  
• Blogging increased 5% for 46-55 year olds
  
• Blogging increased 4% for 56-64 year olds
  
• Blogging increased 2% for 65-73 year olds.

These statistics are striking for any number of reasons. First, for the older generations, the increase in blogging is only between 2-6%, which is, all things considered, a fairly small increase for a 2 year time frame. This is so especially given that the use of social networking sites increased between 12-32% for those same age ranges during the same time frame. 

Also significant is that blogging is decreasing for the younger generation.

Dead, dead, dead.  Niki, of course, is much too nice to just come out and say it.  She is a lady, genteel in her ways and circumspect in manner.  She would never smack someone across the face and cause them pain.  That’s not how Niki rolls.

Niki tries to soften the blow by saying “Legal blogging isn’t dead, it’s just changing,” like the Black Knight said it was only a flesh wound.  This could explain the dearth of inter-blawg discussion over the past year and the corresponding rise in nutjob commentary. 

Offering a crumb to those who still harbor hopes of a vital blawgosphere, while not wanting to work too hard to participate in it, Niki writes:

However, one trend that I think will become more evident over the next year or so is that individual blogs will decline and group blogs will become the blogging standard. Many individual blogs will continue to succeed, but group blogs will dominate. This is because group blogs provide more varied content, different viewpoints, and draw in more eyes, since the individual bloggers can promote the group’s blog across their own social networks.

For lawyers, the most effective group blogs will consist of blog posts from geographically diverse lawyers focusing on the same practice area, such as criminal law, environmental law or personal injury law.

This, of course, means that the next wave of blawgers, should there be people bold enough to ignore the subtext and try it anyway, can take comfort in knowing that it’s no longer shameful to lack the gumption to go it alone, to take ownership of a blawg and build readership based on one’s own ability and perseverance.  Instead, the next-gen blawger will have others, too far away to sue, to blame for its failure. 

Yet Niki, a die-hard supporter of the blawgosphere she helped to create, offers this final bit of solace:

And, it’s passion that separates the good blogs from the bad. If you enjoy writing and have a passion for the topic about which you are blogging, your blog, whether it’s a group blog or an individual one, will be a success.

Passion is the key element; if your passion shines through, people of all ages will want to read, discuss and share your blog posts. And, after all, isn’t that the point of blogging in the first place?

The good thing about passion is that anyone can have it.  Good writing, insight and an eye for interesting subjects may be very hard to come by, but we can all be passionate about something.  And lest you think I’m being snarky here (well, maybe a tiny bit), Niki is right. 

If you feel strongly enough about something to take the chance of putting your opinions out there for all to see, and suffering the slings and arrows of those who disagree, then you’ve both accomplished something and deserve the respect of those too gutless or lazy to try it themselves.  I may be a bit less sanguine about the prospects of creating a successful blawg, having see way too many arrive and die unseemly deaths, but I certainly respect the effort.

And you know what?  There’s nothing wrong with having passion and taking a chance with a blog, even if blogging is dead, dead, dead.  The worst than can happen is no one reads it.  So what?  You’ll survive.

Update: For those who didn’t “get” this post, which means most of you, Seth Godin did. 

It would have been nice if he gave Niki credit, but we can’t be piggish about these things.

Galleon Management hedge fund guru Raj Rajaratnam is set to start trial in the Southern District of New York.  Being a billionaire and all, he won’t suffer the indignity of being unable to afford counsel of choice.  If anything, he suffers an embarrassment of riches.  And embarrassment it is.

From the Ashby Jones at the WSJ Law Blog, a motion was made by John Dowd of the well-known criminal defense law firm of Akin Gump:

We respectfully request that you allow each member of Mr. Rajaratnam’s defense team to bring one Personal Electronic Device into the courtroom.

The Court’s Standing Order regarding Electronic Devices and General Purposes Computing Devices generally prohibits the use of Personal Electronic Devices, such as a cellular telephones or Blackberry’s, in courtrooms without an Attorney Service pass. These passes, however, are only available to members of the bar of the Court who possess a New York State Unified Court System Attorney Secure Pass (“OCA Card”).

It would greatly aid Mr. Rajaratnam and his counsel at trial if the following individuals were allowed to bring with them the highlighted Personal Electronic Device into the courtroom . . .

The motion then lists 11 people, nine Akin Gump attorneys and two others.

[W]hy, when the government assents to the Blackberry request, does the court still put up such a fuss? Blackberrys can be operated discreetly and quietly — why such insistence on keeping them out?

It occurs to me that one person’s “discreet and quiet” operation is another’s annoying, bordering on offensive, lack of attention.  Having spent some time with youthful people inclined to grasp their electronic device like a lifeline, and endured their heads bobbing up and down, thumbs akimbo, attention wandering back and forth, without the slightest notion that they are doing so or any clue that their speech is disjointed, in bits and spurts, and just a bit short of coherent, it’s not nearly as discreet as Ashby thinks.  But that’s just my view.

As for Raj, he might consider the appearance to the jury of a defense table so jam-packed with pinstriped bodies as to look utterly absurd.  Want to look guilty as sin?  Surround yourself with almost as many people at the defense table as sit in the jury box.  It just doesn’t look right. 

You look like you’re ganging up on the government, making the United States Attorney seem like David to your Goliath.  This really isn’t the impression any defendant wants to have at trial.  This is like the lawyerly equivalent of the $6,000 shower curtain.  You may be able to afford it, but is it really what you want to shove in the jury’s face?

More to the point, if you take all the money you’re paying that renown criminal defense firm, Akin Gump, for their nine plus two warm bodies in the courtroom, and put it toward one really good lawyer who actually tries cases of people accused of crimes in the Southern District of New York, chances are that you wouldn’t have to pay for a motion to allow his Blackberry in the courtroom.  He would already have a Secure Pass.  Because real New York criminal defense lawyers have Secure Passes. 

Normally, I would charge for this advice.  But since Raj doesn’t seem to care how much he shells out, no reason not to put my hand out as well.  I don’t take credit cards, Raj, but a check will do nicely.

At the outset of jury selection, the judge will tell the prospective jurors the names of people anticipated to be witnesses at the trial, as well as the lawyers and defendant.  She will then inquire whether the jurors know any of these people.  On occasion, someone will raise a hand, but it’s a rarity.  After all, there are a lot of people in the world, and what are the chances that people who know each other will happen to be in the same courtroom at the same time?

But it happens.  And it happened big time in Earl Berry’s trial in Albany. From the Albany Times-Union :

A woman is chosen for jury duty in a rape case. On the second day of the trial, she realizes … she spotted the defendant committing the alleged crime.

Well, that is exactly what happened in Albany County Court on Tuesday when a juror informed Judge Thomas Breslin she witnessed 40-year-old Earl Berry on Sept. 21 with the alleged victim on Henry Johnson Boulevard.

It’s not like she knew the name, or hung out with the defendant.  It’s like she was an actual witness to the crime.

“I was actually driving home and saw him dragging her down the bridge — and he gave me the dirtiest look,” the juror told the courtroom. “I said, ‘Where is he going with this?’ “

She told the court she recognized Berry because “he looks like my cousin.”

Inexplicably, however, she didn’t realize that she had witnessed the crime, or that the defendant looked like her cousin,  It wasn’t until the second day of trial, during a detective’s testimony when the prosecution introduced photographs into evidence, that it dawned on the juror that she had seen the defendant before.  Which leaves one to wonder about her powers of observation with the living, breathing defendant in the same room with her up to that point.

Upon learning of the juror’s epiphany, Judge Breslin offers this astute observation:

“You realize, obviously, you cannot continue as a juror?” Breslin told the woman.

“Absolutely,” Juror No. 8 replied. “I don’t want to.”

Was there a question?  Similarly, as the prosecution realized that it had a newly discovered witness in its midst, defense lawyer Michael Jurena moved for mistrial.

“I think it’s the only fair thing to do,” the judge said noting the bond between jurors would create an awkward situation. “One of your own is now testifying. I think it’s unfair.”

Yet another masterful observation.  The prosecution considered proceeding with the trial without calling the juror as a witness, but decided against it, leaving Jurena with no choice.  This, however, meant that the defendant, having selected a jury with which (aside from the witness against him) he felt comfortable, and having commenced the trial that was, in Jurena’s view, going well, was forced to lose his jury and start over.

Two lessons obviously come to mind from this bizarre situation.  First, be sure that the jurors take a good look at the defendant before acknowledging that they don’t know him, and second, pray that your client doesn’t give “dirty looks” to passersby as he drags a woman over a bridge.

When the case is retried, it appears that the defendant will have some solid impeachment material to use against juror number 8 when she’s asked to identify the person she observed.  Like how she saw him for an instant and can identify him, but couldn’t tell that he looked like her cousin (Vinny?) when she spent two days in a courtroom looking at him.

As Jurena said, “you can’t make this stuff up.”

From Turley :

Prof. John Michael Bailey gave his students an optional demonstration as part of his “Human Sexuality” class with a naked couple having sex in his class.

Over 100 students watched as a man used a sex toy on a woman in the class. The woman told reporters that she agreed to speak with the students as a member of the “fetish community” but was happy to serve as the focus of a demonstration in the aptly named Ryan Family Auditorium.

If there is any consistency in students, I hope at least one student ask “is this going to be on the test?”

Professor Bailey did not require his “roughly” 600 students to attend. 

The University stood by its professor as a matter of academic freedom. Alan K. Cubbage, vice president for University Relations, stated “Northwestern University faculty members engage in teaching and research on a wide variety of topics, some of them controversial and at the leading edge of their respective disciplines. The University supports the efforts of its faculty to further the advancement of knowledge.”

There is no video of the demonstration available.  Well, there is, but not of this specific demonstration.  And none that I’m inclined to post here.

There is, however, one question that must be asked.  Does Northwestern really have a course in Human Sexuality?  Because their students need to be taught it?

Whatever happened to the good old days when you learned about such things at fraternity parties?