I remember being told the story of an old time lawyer who would wear a tie, albeit sans suit jacket, when mowing the lawn.  The reason was that a lawyer was a lawyer, a professional, at all times, no matter what he was doing.  As a matter of dignity, he should always comport himself as a lawyer.  He should always behave like a lawyer. He should always wear a tie.  I don’t know what happened when the old time lawyer went swimming. 

We’ve moved beyond those days, where others are impressed with our dignity as demonstrated by our lawn-mowing attire.  Not to the point where we can walk into court in flip-flops, and blaming jurors for thinking we’re so not admiring our brilliance while overlooking our lack of self-respect, but to the point that we can dress as we please after hours without fear that we’ve single-handedly undermined the profession.  Unless, of course, you learned to be a lawyer online.

Susan Cartier Liebel, shopkeeper at Solo Marketing University and Legal Rebel, offers a parable.

Let me set the stage. We are in the middle of historic snow storms in the Northeast.  Everyone is bundled up for arctic chill.  Outrageous outfits, hoods, boots.  Nothing even really matches.  It’s about keeping warm.

Add to this I just had oral surgery which has left me with a goose-sized egg on my jaw in brilliant hues of purple, black, green and yellow.  I also can’t speak very well.  (Ergo, why I am not at LegalTech in New York.)

So, today I finally ventured out to the supermarket to stock up on food because of another ‘dangerous’ monster storm coming.  I confess, with everything going on I looked like a battered Walmart shopper. 

So, Walmart shoppers, you now know where you stand in the scheme of grand appearances.  Bear with me, as Susan uses quite a few words to tell her tale.  At checkout, Susan was overcharged, and questioned it, reaching the exalted level of the 19-ish year old manager.

He told me in a very annoyed and condescending voice the sale price was from last week and shouldn’t have been there but he was going to give me the sale price anyway.  What a guy!

We walked over to customer service where the customer service person looked at my face.  She did that barely discernible stare for a second and then looked away.  The manager started to explain what was going on. He was explaining the problem incorrectly which would have resulted in the wrong credit.  I kept slurring, ‘excuse me’ but he kept talking and talking with his back turned away from me.  Finally I tapped him on the back and said, ‘Hello?  I’m talking to you?’  He continued to talk like I wasn’t there.  I was getting highly agitated now. 

Wait for it…

And as my husband likes to say, ‘you don’t want to get my wife mad.’

I refuse to offer any sexist commentary with regard to this brutally common affectation, and suggest the reader draw her own conclusion.

Finally he left and I started to explain the problem correctly.  The customer service person started to talk to me very loudly and slowly as if I were both deaf and incapable of comprehending.  Now I’m seeing red.  She was doing some convoluted math to give me the credit but kept coming up wrong.  I explained the right way to do it.  She told me she can’t do it my way.  I said fine and then asked her just to see if when she did it my way we came up to the same number.  We eventually did.  There was no pretense of politeness on her part.  No ‘please sign here’ or ‘please swipe your credit card.’  She just bossed me around like a subordinate.  After the transaction was completed she dismissively said, ‘have a nice day.’  And then as I was walking away (drumroll, please) she muttered under her breath, ‘uppity white trash.’

Outrageous?  Yes.  Unwarranted?  Absolutely. Lesson?

Yes, this is still a marketing lesson.

We are correctly or incorrectly perceived, judged, and treated as we present ourselves.  I looked bruised and battered and dressed to unimpress.

As solo practitioners you don’t have the luxury of not dressing appropriately and presenting appropriately in public ever because everyone you meet is a potential client or referrer of clients. They will make snap assessments about you whether you like it or not.  Better they make a snap positive assessment.

This is where the marketing perspective differs from the substantive perspective.  The problem here, according to Susan, is that she didn’t dress to impress either a 19-year-old Sam’s Club (I’m guessing here) manager or his chargé d’affaires, the customer service rep?  That’s not the lesson I see at all. 

That’s not to say that there isn’t a lesson to be had. Indeed, there is, and an important one to boot.  Lawyers are persuaders, communicators.  Communication is a two part process, sending and receiving.  We can send a message any way we please, but if it isn’t effectively received by the other party, the one who we need to persuade to see things our way, than we’ve failed to properly communicate. 

We do this with judges. We do this with clients. We do this with juries.  We vary our words, tones, logic and examples to suit the people we seek to convince.  What happened to Susan wasn’t a matter of her unimpressive attire, but her unpersuasive manner.  She was going to let them have it her way, perhaps because she was “agitated,” and they made her “mad.”  By her choice of words, it appears that she was all about the sending part of communication, focused solely on herself, rather than the receiving piece.  She forgot that the point is to get the other person to do what she wanted them to do.

It’s a common error, but one that renders lawyers who fail to recognize it remarkably ineffective.  It doesn’t matter how angry you are, unless your only goal is a nice, cathartic rant.  If you’re happy enough to vent your spleen and get nothing out of it, then self-obsess and have a nice day.

if, on the other hand, your purpose is to persuade another person to do something, than your focus has to be on them.  Who are they, and what do they need to hear to be convinced that you are right?  This is the substance of what lawyers do, regardless of whether you’re in a bespoke suit or blue jeans.

So Susan was shabbily dressed and the girl muttered “uppity white trash.”  If she had dressed more lawyerly, the girl would have muttered “scum-sucking shyster.”  It’s easier to blame it on the clothing than to be an effective lawyer. Lesson learned.

Nathan Koppel at the  Wall Street Journal Law Blog posts about law school applications being down 12%. 

Say it ‘aint so: Is law school starting to lose some of its luster? Are college graduates increasingly doubting the long-held notion that a law degree is a certain path to financial stability?

Evidently so, according to some early indications.

The University of Missouri School of Law’s admissions coordinator told the school’s newspaper, the Maneater (woah-ohh here she comes!), that applications are down over last year, when the school enjoyed its highest application total since 2004.

Koppel asks whether law school has lost its mojo?  If only.  What it’s losing are those potential lawyers who are smart enough to realize that law ain’t what it used to be.

 Koppel’s take?

Color us slightly confused. Firms are showings signs of life and some have indicated they will hire more associates than in years past. Shouldn’t that fuel more law school applications?

Perhaps the steady drumbeat of media accounts questioning the value of a law degree is starting to filter down to the college ranks. And perhaps graduates are finally snapping to the idea, increasingly held, that there is a paradigm shift in which firms will be less leveraged and hire smaller associate classes for years to come.

As always, though, the problem is the what-else question. Sure, law may be a rockier path these days, but what else is out there for smart, ambitious, probing, argumentative college grads?

I’m here to help, Nathan. Granted, every person who doesn’t apply to law school may have his or her own reason, and since I’m neither privy to each one, nor capable of identifying those students who decided not to apply (if I was inclined to ask each one personally why he or she made the decision), I’m left with no option to but to engage in wild speculation.   So I will.

While certain “outlets” have focused almost exclusively on how many baby lawyers are paid top dollar for bottom skills, the word on the street has gone beyond just the mounting debt, lack of jobs, lower salaries and lousy lifestyle.  None of these things would dissuade anyone from seeking to join a profession, since profession isn’t defined by the guarantee of big bucks. 

The law has become a business.  Lawyers market themselves like laundry detergent, demean themselves for the marginal dollar and are represented in the public eye as fast-talking used car salesmen on television commercials.  Used car  salesmen are offended at being compared to lawyers. 

Having shed the mantle of a learned profession, and reduced ourselves to hucksters, a student pondering his or her future is left to compare and contrast the relative worth of becoming a lawyer to, well, any other job out there.  Consider that the equation works out this way: You won’t earn much as a lawyer, but you will pay huge opportunity costs, both in law school tuition and three years of your life, and potential earnings, lost.  At the end of the road, law degree in hand, used car salesmen will look down on you.

Not a rosy picture.  Worse still, the people who come to realize this are the smarter kids, the ones who bother to figure out the efficacy of law as a career.  While some might speculate that there are still those students who truly want to be lawyers applying to school despite the plethora of reasons to do something else, my guess is that there aren’t too many. 

Few college students have a really firm grasp on what being a lawyer is all about.  They may think it’s like television.  Their mothers may tell junior that she would kvell if only he was a lawyer.  Their friends may suggest that Muffy is suited to the law because she argues about everything.  These are students who think they really want to be lawyers, when they don’t.  Some will figure it out sometime during their third year.  Others will be the lawyers with websites touting their vast experience, deep empathy and high qualifications, twelve minutes after they pass the bar.

My take is that the bloom is off the rose because we, lawyers, have allowed desperation to seize whatever sense of professionalism remained and turned a once honorable profession into just another money-grubbing vocation.

But if it’s bad now, the drop in applications suggests it’s going to get worse.  While there may be 12% fewer students interested in a shot at becoming a star of their own TV commercial, law schools are going to continue pumping out as many lawyers as chairs in their lecture halls.  Hey, lawprofs have to pay the Ferrari lease too, you know. 

Some may wonder whether reduction in applicants is at the top end, bottom end or across the boards.  The best answer to this question can be found by asking who is most likely to figure things out first?  That’s right, the top end.  If law is just another business, but with vastly more expensive barriers to entry, then smart money goes elsewhere. 

So we have the same number of seats, and crank out the same number of inchoate lawyers, but we draw them from the universe of those too lazy or stupid to figure out that profession isn’t what it used to be.  Great.

So now the ball goes back to the rest of us, those puffing the living daylights out of themselves in every possible venue.  Are you proud of yourself, or is getting the next quick buck all that matters?  If it’s not worth cleaning up our act for our own honor and integrity, consider the 12% of students who have decided that they would rather be something other than a lawyer.  Do it for them. Do it for the children.

Having received scores of emails inquiring whether the reference being propagated across the blawgosphere by that yenta, Kevin Underhill at Lowering the Bar, I feel compelled to put the rumors to rest.

Alan Simpson, who was a senator from Wyoming and more recently a co-chair of the president’s deficit commission (don’t remember that? Neither does anybody in Washington) is renowned for his “colorful language.” He reinforced that reputation recently by saying this on CNN :

We’re going to get rid of all earmarks, all waste, fraud and abuse, all foreign aid, Air Force One, all congressional pensions . . . . That’s just sparrow belch in the midst of the typhoon. That’s about six, eight, ten percent of where we are. So, I’m waiting for the politician to get up and say, there’s only one way to do this: you dig into the big four, Medicare, Medicaid, Social Security, and defense. And anybody giving you anything different than that, you want to walk out the door, stick your finger down your throat, and give them the green weenie.

I have no idea what the heck Simpson is referring to.  I am not now, nor have I ever been, referred to as “the green weenie.”  Frankly, it sounds disgusting, which is backed up by the only reliable source on the internet, the Urban Dictionary.

Moreover, if there was any connection whatsoever between me and the green weenie, don’t you think  Marc Randazza would be the  first to know about it? 

Yet again, the clash between technology and the law shows that neither Congress nor the courts can be trusted to handle the unintended consequences.  Via Fourth Amendment, the Eighth Circuit in  United States v. Kramer banged Neil Kramer with a two-level upward adjustment for having used a computer, pursuant to 18 U.S.C. § 1030(e)(1), in the course of transporting a minor in interstate commerce for the purpose of sexual activity.

What sort of computer did he use, you ask?  Was it an Apple? (Oh, please don’t let it be an iPad, please, please, please…)  No, it wasn’t a Mac.  It wasn’t even a PC.  It was (ta da) a Motorola.  More particularly, a Motorazr V3.

Huh?  That’s not a computer.  That’s a cellphone.  Welcome to the world of technology, as envisioned through the eyes of Congress and expressed through the will of the court.

The language of 18 U.S.C. § 1030(e)(1) is exceedingly broad. If a device is “an electronic . . . or other high speed data processing device performing logical, arithmetic, or storage functions,” it is a computer. This definition captures any device that makes use of a electronic data processor, examples of which are legion.

And in accord, the Circuit offers this chunk of scholarly wisdom:

Orin S. Kerr, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L. Rev. 1561, 1577 (2010) (“Just think of the common household items that include microchips and electronic storage devices, and thus will satisfy the statutory definition of ‘computer.’ That category can include coffeemakers, microwave ovens, watches, telephones, children’s toys, MP3 players, refrigerators, heating and air-conditioning units, radios, alarm clocks, televisions, and DVD players, in addition to more traditional computers like laptops or desktop computers.” (footnote omitted)). Additionally, each time an electronic processor performs any task—from powering on, to receiving keypad input, to displaying information—it performs logical, arithmetic, or storage functions.

And you wonder why I pay so much attention to things Orin says?  Of course, Orin’s laundry list was intended to point out the vagueness of the law rather than provide a road map for prosecutors to locate potential enhancements.  The point, however, is swallowed up in the language of § 1030(e)(1), which today reads like a second-grader’s understand of how a computer works.  Actually, a second-grader would have a better grasp; more like a legislator’s understanding.

Furthermore, there is nothing in the statutory definition that purports to exclude devices because they lack a connection to the Internet. To be sure, the term computer “does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.” 18 U.S.C. § 1030(e)(1). But this hardly excludes all non-Internet-enabled devices from the definition of “computer”—indeed, this phrasing would be an odd way to do it.

Of course, the definition of computer was enacted in 1986.  Some of you might not remember 1986 too well, but at the time the internet was virtually non-existent for normal folks,  Online existence was just budding, and to the extent early adopters were involved at all, it was in chatrooms or bulletin boards wholly populated by those who used a particular ISP, such as AOL, Prodigy or CompuServe.

So Congress didn’t address it?  Congress didn’t have the slightest clue the internet existed.  Of course, the law was amended a few times during the 1990s, as the internet emerged, and again as part of the USA Patriot Act, but then Congress wasn’t worried about correcting its overbroad definition of computer, or its omission of the internet, but rather how it could scream terrorism and emasculate constitutional rights at home.  But I digress.

This misbegotten definition might seem to implicate the enhancement if the bad guy brews himself a strong cup of java on his computer to keep him awake while he embarks on his interstate tryst with a minor, but the Circuit explains why we need not fear so broad a reading:

Of course, the enhancement does not apply to every offender who happens to use a computer-controlled microwave or coffeemaker. Application note 4 to § 2G1.3(b)(3) limits application of the enhancement to those offenders who use a computer “to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor.” U.S. Sentencing Guidelines Manual § 2G1.3(b)(3) cmt. n.4 (2009). Therefore, the note continues, the enhancement “would not apply to the use of a computer or an interactive computer service to obtain airline tickets for the minor from an airline’s Internet site.” Id. This is a meaningful limitation on the applicability of the enhancement, but it is no help to Kramer.

Notably, it’s not the statutory or caselaw that offers limitation, but the application note in the Sentencing Guidelines.  Though it’s double non-binding, and readily changeable, it’s all that stands between your toaster and prison.  Not prison for the toaster, but the defendant.

The Eighth Circuit recognized that its decision swept a device that no normal person would call a computer under existing technological understanding, or served to satisfy the Congressional purposes upon which the law was grounded way back in 1986, but was constrained by the plain language of the statute.

But to the extent that such a sweeping definition was unintended or is now inappropriate, it is a matter for the Commission or Congress to correct. We cannot provide relief from plain statutory text. See United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005) (“As more devices come to have built-in intelligence, the effective scope of [§ 1030(e)(1)] grows. This might prompt Congress to amend the statute but does not authorize the judiciary to give the existing version less coverage than its language portends.”).

Don’t let those warm bodies imprisoned while the courts await Congress’ swift and decisive move toward correcting antiquated definitions of technology bother you.  The rules of statutory construction are far more important than any conceivable application of lenity.

But then, a nagging question was raised over at Fourth Amendment blog:

So, how can the government now argue that a cell phone seized in a search incident is not a computer, too? When is a cell phone a mere storage device and not a computer? Only when the government wants it to be not a computer, apparently.

A curious point indeed when one considers that computers received significant protection under the Fourth Amendment, while cellphones are entirely different.

And what does Orin Kerr have to say about this?  He approves.

Seth Godin offers a lot of idea in his role as marketing philosopher, and most offer some germ of wisdom that has the potential to be applied in all walks of life, law included.  Sometimes, however, he comes up with a really boneheaded notion, like this:

Self sufficiency appears to be a worthy goal, but it’s now impossible if you want to actually get anything done.

All our productivity, leverage and insight comes from being part of a community, not apart from it.

The goal, I think, is to figure out how to become more dependent, not less.

Is “autarky” dead, as Godin contends?  Or more to the point, should it be our goal to become more dependent? 

The reason this strikes so close to home is that it’s happening at an alarming rate, that people (and I include lawyers in that group) need for others has grown to co-dependency levels, whether for answers to questions that people could answer for themselves if they exerted minor effort or, worse still, validation from any source available. 

The problem is that many justify their behavior by saying they just enjoy the camaraderie and the ease of getting a little help from their friends.  What’s the problem?  What’s so wrong with being co-dependent?   The problem is that people can’t manage for themselves.  Pull away the security blanket and they crumble.  They need others, just as Godin urges they should, but they can’t manage without them anymore.

The group, or tribe as Godin prefers to call it, is the greatest machine ever made to achieve mediocrity.  For many, that’s a step up from where they would be on their own.  What a sad commentary on people, but the truth is that they aren’t willing to work too hard, think too much, expend a whole lot of energy to do better.  So dependency turns out to be a positive way of life for those who would otherwise firmly hang on to the bottom rung of the ladder.

Others, however, will work hard, think harder and expend whatever energy is needed to accomplish their goals.  They not only don’t they embrace group, but avoid the group’s pressure for conformity.  The group doesn’t want anybody to bust the curve, making the rest of them look bad.  The group can’t tolerate a new, vibrant idea because all ideas must measure up to the lowest common denominator to obtain approval.  This is what dependency brings you.

This isn’t to say that we don’t help each other, cooperate, leverage our own abilities by those of others.  A self-reliant person enjoys the benefits of others when available, and others enjoy the benefits of the self-reliant person in return.  We use each other’s knowledge, experience, contacts, insight to the extent it helps. 

The key, however, is that when the self-reliant individual differs from groupthink, he goes down the path of his own choosing.  He doesn’t sublimate his own ideas to the group, nor does he blame the group when he makes the wrong move.  He assumes responsibility and takes it.

Given the “tribes” that have and continue to form all around us, in the blawgosphere, on twitter or Facebook, maybe LinkedIn or at your office or school, it’s all too easy to wrap oneself up in dependency, slough off personal responsibility and defer to the tribe.  This gives rise to the age of neediness, our willingness to shed our own thoughts, ideas, initiative so that we don’t disrupt the happiness of the tribe.  The ease and validation we receive in return is worth our giving away our independent thought and judgment.

Independent people won’t care what Seth Godin says, which is part of the irony of his push toward the need for dependence.   Codependent people won’t care either, as there was never any chance they would function on their own.  But there remains a group on the cusp of independence who aren’t sure if it’s worth it to work hard, think hard and expend the effort to be an individual.  This group enjoys the warmth of the crowd and seeks its approval, but still has that nagging feeling that they could do better, do more.

Godin’s advice makes perfect sense if you’re sheep, bees, lemmings, and that portion of people who can’t think or function on their own.  It’s not so good for lawyers.  What we do demands the ability to think on our feet, without the approval or advice of the tribe to bolster our insecurities and need for validation. We need to be able to disagree with others when we disagree with them. We need to be capable of providing sound, independent thought.  We need to rise above mediocrity.  This can’t be accomplished while looking around for the warmth of the tribe’s approval.

Enjoy the benefits of the group to the extent it’s actually beneficial, but if you can’t break away from seduction of dependency and exercise independent thought and responsibility, then you’re in trouble.  If you don’t have it in you to tell the tribe to get lost, then you can’t be a lawyer.

Chief Judge of the General District Court in Loudoun, Virginia, Dean S. Worcester, took a stand and raised a ruckus.  From the Washington Post :

In Loudoun County, Chief General District Court Judge Dean S. Worcester ruled last week that he would defy the Virginia Supreme Court because the justices were simply wrong.

The decision stems from a state high court ruling last month that said judges in Virginia may not use an obscure writ to reopen cases of immigrants who weren’t told that a criminal conviction could lead to their deportation.

Hooray!  We love it when a judge shows the guts of his convictions and stares down bad precedent, refusing to become a slave to law he knows to be wrong.  Woo hoo!!!

But wait a sec.  We think this decision is wonderful because we favor the outcome, that defendants who were not informed of the collateral immigration consequences of a conviction should be allowed to make a fully informed decision.  We applaud Judge Worcester’s refusal to adhere to precedent because we don’t like the precedent.  It’s wrong, we say. Wrong, wrong, wrong.

But wrong precedent is a two way street.  What if the Virginia Supreme Court had nailed it, held that defendants whose pleas were less than knowing, voluntary and intelligent, and some trial court judge decided that he didn’t care for the precedent and denied their writ?  Bad judge?  Sure, but is it only because of whose ox is gored? 

Orin Kerr took up this fight over at Volokh Conspiracy.  Not surprisingly, many of his commenters/detractors immediately took the leap of faith toward  Judge Clyde Roger Vinson’s decision holding President Obama’s healthcare reforms unconstitutional.  Others asked less politically charged questions, but made the same point, what’s a judge to do when faced with precedent he believes to be bad law?

Orin answers :

Orin Kerr says:

Dave H asks a hypo:

You are a lower court judge, and your superior court hands down a ruling that explicitly orders a private citizen to allow a solider to be quartered in his house in a manner that was explicitly not prescribed by law. It is left to you to enforce this. What do you do?

I think there are two lawful options: Follow the precedent or resign from the bench. As for which lawful option I pick in this hypo, you have not provided me with enough information to make that decision.

Quibbles with the hypo aside, Orin argues that the only “lawful” options available are comply or quit.  Some others offer snarky options, like never decide or find some dubious fact and twist a decision out of it to reach the desired outcome, but these really don’t address the problem.

I can’t agree with Orin’s contention that the choices are limited to slavish adherence to precedent or the bread line.  Not that I don’t understand both the law’s reliance on precedent and its underpinnings, and how this reliance can work for or against a position with equal impropriety. 

Rather, I don’t view the judge’s function as so ministerial that it’s inherently limited to the rote application of precedent.  If that were so, the law would never evolve.  There are some who believe it shouldn’t, though I’m unaware of anyone who’s pining for the return of Dred Scott. 

This isn’t a matter of judicial activism, per se, as its not in support of judges usurping the legislative function, but rather taking the risk of reversal and ruling as they believe to be the proper interpretation of law despite precedent to the contrary.  The worst that can happen is they get reversed, which can happen even when rulings are less than principled.

The problem with Orin’s options, apply precedent or quit, is that it precludes a judge from exercising judgment.  Judges are not mere umpires at the ballgame, calling balls and strikes based on a well-delineated zone.  Little in the law is quite that clear, and to the extent that judges are constrained to rule in a way that so significantly offends their view of the law, there must be a means of expressing their decision short of resignation.  Quitting just isn’t a sufficiently meaningful way to make a point, and is too extreme a message to challenge a particular bit of precedent.  There are just too many troubling precedents to quit over all of them.

Indeed, the outcome oriented appellate decisions are no more worthy of principled adherence than outcome oriented lower court decisions.  How many appellate decisions are grounded in utterly nonsensical reasoning, defying reality in the trenches or glaringly omitting obvious arguments that would compel a different conclusion?  And what about the rationales that cause lawyers everywhere to laugh out loud?  We know they’re there, and yet they come from a court entitled to dictate how lower courts rule.  What to do?

It strikes me as fundamentally contrary to the judicial function to demand that a judge comply with precedent that he believes to be unlawful.  It’s not for lack of appreciation of precedent, or respect for appellate authority, but for the ability of a judge at the trial court level to achieve the result he believes to be correct.  To expect judges to do harm in their rulings strikes me as nonsensical, and reduces the judicial function to ministerial.

The upshot is that judges will still adhere to precedent, both because of its force of reason as well as the judge’s lack of such a strong principled disagreement that he essentially begs to be reversed.  That said, there must be some outlet for principled disagreement that doesn’t require a judge to quit in disgust or issue an order that he believes manifestly wrong.

Or do we only want judges who are dedicated followers, because if the independent thinkers all quit, that’s all we’ll have left.

Via Adjunct Law Profs, Mitchell H. Rubinstein posts about a New York Supreme Court decision, Finkel v. Dauber, by Nassau County Supreme Court Justice Randy Sue Marber.  The plaintiff sued for defamation stemming from nasty comments on Facebook.

This action arises out of prurient statements posted by the officers of a Facebook group. The group’s information page shows that its name is “90 Cents Short of a Dollar”, and lists five officers and six members, five of whom are the officers…. The listed purpose of the group is “just for fun” and “inside jokes”.

Ninety Cents Short of a Dollar (hereafter referred to as “Ninety Cents”) is a “secret” Facebook group, which has no public content and does not appear on a Facebook member’s profile. New members must be invited by an administrator, here either of the Defendants… Although Ninety Cents lists only six members or “cents”, ten people are listed as “cents” in the group’s “recent news”.

What this means, “Ninety Cents,” eludes me completely.  Perhaps it’s some inside joke, or a cool reference to some movie favored by people younger than my favorite pair of shoes, but the judge doesn’t break a sweat worrying about it.  The comments, however, I get.

The following explicit material is necessary for analysis (spelling, punctuation and typos are as in original):

ooooh i like this group.

BTW the 11th cent, unbeknownst to many, acquired AIDS while on a cruise to Africa (with another member of the group who shall remain nameless). While in Africa she was seen fucking a horse. NICHTE NICHTE eleventh cent! I mean you know . . . I kinda felt bad for the eleventh cent…but then again I felt WORSE for the horse. … (Leah Herz 1/29/07, 5:04pm)

In regards to the 7th cents comments,,, it was not from an African cruise… it was from sharing needles with different heroin addicts, this led to cross “mojination” which caused the HIV virus… she then persisted to screw a baboon which caused the epidemic to spread.

(Jeff Schwartz 1/29/07, 7:43pm)

I heard that the 11th cent got aids when she hired a male prostitute who came dressed as a sexy fireman. apparantly .. she was lonely, because her friends no longer associated with her. her sexy fireman prostitute was her only company. in addition to acquiring aids, this nameless 11th cent aquired crabs, and syphillis. (Melinda Danowitz, 1/29/07, 8:00 pm) also i heard that the stds (sexually transmitted diseases) she got were os bad that she morfed intot he devil in one of our pictures…oops did i reviel the 11th cent?>

(Michael Dauber, 1/29/07, 8:32 pm)

For those of you reading this, what did you think your children were doing online after you went to sleep and they hid in their bedroom playing on the computer?  They write nasty, often dirty, stuff.  Sometimes about others.  Sometimes about each other.  Sometimes about you, but you will never know it because you aren’t a member of the Ninety Cents group.

One might suspect that a judge, being less than personally involved in the doing of an infantile online tribe proving their maturity by typing nastiness on a screen, would be outraged by the content of these comments.  You would be wrong.

A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other.

While the posts display an utter lack of taste and propriety, they do not constitute statements of fact. An ordinary reader would not take them literally to conclude that any of these teenagers are having sex with wild or domestic animals or with male prostitutes dressed as firemen. The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact.

Precisely.  The internet is replete with such nonsense, and no doubt will be stuffed full of more as children continue to lay hands on keyboard and confuse vulgarity with maturity.  It’s going to happen because kids are kids, and by definition do foolish things.

Insofar as the Plaintiff’s counsel suggestion that the posts constitute cyber bullying, the Courts of New York do not recognize cyber or internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyber bullying as a cognizable tort action.

While many, particularly the lawprofs, assume the existence of some generic wrong they call “cyberbullying,” and legislatures are prompted by vague public pressure to make bad things on the internet go away, Judge Marber refused to hop on the bandwagon and manufacture a wrong that doesn’t exist. 

On the legal side, no one has yet come up with  a viable definition such that we can even begin an intelligent conversation about the propriety of criminalizing (or tortifying?) cyberbullying.  On the practical side, Judge Marber has called out this “puerile attempts by adolescents” at vulgar humor for what it is.  Of course it’s ugly and nasty, but nobody believes it’s true.

As is invariably the way of civil actions, all parties demanded summary judgment, because all parties naturally believe there is no issue of fact to be tried and the only question, as far as plaintiff’s lawyers are concerned, to be answered by a jury is how much do they get a third of.  Judge Marber answered the question in a clear, crisp, single word.  Dismissed.  Well done.

If junior can’t handle the rough and tumble world of adolescence on the internet, then pull the plug on the WiFi router.  Better still, tell junior to toughen up, that throughout life people will call him mean names when they are angry with him, just as he calls other people mean names (though he’s not going to admit that to you). 

We would all do a lot better for our children to regularly repeat the old saw about sticks and stones, and stop elevating hurt feelings to mythical status worthy of life and death choices.

Two “requests” arrives yesterday, one from a young lawyer and another from a law student, interested in finding an experienced lawyer to guide them in their quest for success.  The law student cold-called, informing me that he had taken crimlaw and wants to be a criminal defense lawyer.  What should he do?

I chose my words carefully: Walk over to the courthouse and sit in a busy courtroom for a day.  Say nothing.  Just listen.  Go back the next day and ask any lawyer who you think won’t bite your head off if you can work for him for nothing, carry his briefcase and fetch his coffee, just to be around a real lawyer doing real lawyer work.  And if you’re truly ambitious, go to the Legal Aid Society and offer yourself for anything, absolutely anything, you can do to help.

He responded, “What’s legal aid?”

I sighed. “Do you know anything about the actual practice of criminal law,” I asked?  He informed me that he didn’t, which was why he was calling me.  I suggested he wasn’t ready yet.  He asked if he could call me back in a month.  I told him no. Maybe a year.

The young lawyer sent me a humorous email, with the subject line “New Lawyer Looking For Free Advice.”

The subject line may already have you mentally working on a post that involves something about Avvo Answers and Slackoisie, but please hear me out.

I’ve been an attorney now for a little more than two years. Until recently, I worked for a small town “general practice” firm (criminal defense, divorce, and a little of whatever we can get). I just went solo, and I’m trying hard to figure out how I should do things now that I’m the one in charge.

I’ve been reading your blog for perhaps more than a year now, though I don’t think I’ve ever left a comment .  I sometime have put fingers to keyboard thinking I’d tell you my opinion, but usually thought it best to keep it to myself. After all, I have a diploma that says I can charge money for my opinions, so why should I give them away for free?

I know you don’t owe us young attorneys anything, but I appreciate your being willing to give your opinions away for free.  Most of the stuff out there is from marketers, law professors, or law students… I’m glad to have your perspective on things.

Most of your posts about my generation address our weaknesses. However, should you ever decide to write a post or two that started off with something like “If I were a new attorney just starting out, I’d…”, I’m sure it would help a few of us new attorneys. I know I’d love to read it.

Weeks passed, and every once in a while Mr. P. would give me a shot and drop me in the hallway, sending my books flying. The other students didn’t know what to think. More weeks passed, and I was steadily adding new weights to the bar. I could sense the power inside my body growing. I could feel it.

Right before Christmas break I was walking to class, and from out of nowhere Mr. Pepperman appeared and gave me a shot in the chest. I laughed and kept going. He said I could look at myself now. I got home and ran to the bathroom and pulled off my shirt. I saw a body, not just the shell that housed my stomach and my heart. My biceps bulged. My chest had definition. I felt strong. It was the first time I can remember having a sense of myself. I had done something and no one could ever take it away. You couldn’t say s–t to me.

Today a man who invited a boy into the weight room to lift would be called a pedophile. Would you be alone in a room with a young boy? I sure as fuck wouldn’t. Projecting her own Oedipus fantasy, some meddling bitch would call the police on me, explaining that any interest with a young boy must be sexual.

Let’s get the obvious out of the way.  Arianna Huffington is better looking than me and has a cool accent.  On the other hand, nobody has to ask me to repeat myself because they didn’t understand what I said the first time around. 

On the plus side, I still use my AOL email address of SHGLaw, seized back in the days when Compuserve was still king, even though most of you techie-kids make fun of me for it.  Where’s the appreciation for my loyalty?

And now, AOL has announced that  it will acquire the Huffington Post for $315 million. 

AOL Inc. disclosed early Monday morning plans to acquire online news website Huffington Post for $315 million, as part of the Internet company’s attempt to turn its business around with a strategy of becoming a top producer of news, entertainment and other digital content.

Huffington Post, a news and analysis website founded in 2005, reached 25 million unique visitors in December, according to comScore. AOL says that a combination of the two sites will reach a total of 117 million unique U.S. visitors.

My heart is broken.  Sure, HuffPo reaches more readers than I do.  But I’ve read their stuff.  Some of it is great, but a lot is total crap written by hack writers who don’t know squat about the subject of their posts.  They will pretty much let any jerk with a keyboard post there, quality be damned. 

If they want digital content, I’ve got digital content.  Lots of it. A ton.  And if I do say so myself, some of it beats the crap out of what HuffPo puts out.  But for the fact that I have to earn a living practicing law, I could spend my free time playing internet savant just like Huffington.  

Arianna Huffington tells how it happened:

I got an email from Tim Armstrong (AOL Chairman and CEO), saying he had something he wanted to discuss with me, and asking when we could meet. We arranged to have lunch at my home in LA later that week. The day before the lunch, Tim emailed and asked if it would be okay if he brought Artie Minson, AOL’s CFO, with him. I told him of course and asked if there was anything they didn’t eat. “I’ll eat anything but mushrooms,” he said.

The next day, he and Artie arrived, and, before the first course was served — with an energy and enthusiasm I’d soon come to know is his default operating position — Tim said he wanted to buy The Huffington Post and put all of AOL’s content under a newly formed Huffington Post Media Group, with me as its president and editor-in-chief.

This doesn’t even make sense.  Why would Arianna ask Armstrong if there was anything “they” didn’t eat when it was Armstrong who invited her for lunch? And what’s wrong with ‘shrooms”?  It’s not like there’s a restaurant out there that offers nothing but dishes predicated on mushroom variations.  Just order something without mushrooms in it, you wuss.

Or maybe it has to do with this:

I flashed back to November 10, 2010. That was the day that I heard Tim speak at the Quadrangle conference in New York. He was part of a panel on “Digital Darwinism,” along with Michael Eisner and Adobe CEO Shantanu Narayen.

Mushrooms and flashbacks have a special meaning to people of a certain age, and Arianna and I both know what she’s talking about here.  Wink, wink, AH.  But did any of you wonder  where that notion of “digital Darwinism” came from?  Note the date, kids.  Almost exactly a year earlier.  And did Eisner send me a bottle of wine?  Nope. Nothing.  Another wuss.

But $315 million dollars, with $300M cash?  Smart deal, after what happened with AOL and Time Warner.  Get your cash up front, and forget about taking taking those Wang Lab warrants off their hands.  They’ll never be in the money.

For this paltry sum, AOL gets content, content and more content.  Is it worth it?  You bet.  AOL needs to do something to bring back the eyeballs that fled when the cool kids realized that it was only geezers like me who still had their name in my email address.  That’s no recipe for future success.

What is, however, is solid, informative, accurate, meaningful content, and I’ve got plenty of it too.  So here’s the deal, you don’t need to name any department after me, or actually put on a management committee.  I’m not all that big on committees anyway, and if I show up for meetings, it’s usually for the donuts anyway.  But I can give you solid stuff, better than most of what passes for fodder over at HuffPo, and a great deal to boot.

For a fraction of what you’re paying Arianna, say like 10% (maybe a bit more), you can class up the joint with the best of Simple Justice.  And I can go with the beard or clean shaven, whichever best fits your image.  No tattoos, but we can always lie and say I’ve got a tweetie bird or a pokemon hidden where the sun don’t shine.  The kids will never know.

Email me, Armstrong.  Let’s do lunch.

In the scheme of criminal justice politics, gender has grown to be a rather persistent problem.  The clash between tacitly favoring women by reducing expectations of evidence while increasing the value of their feelings, and recognizing the politically unpopular notion that they can put a person in prison with no greater proof than mouthing the words, “I said No!”

Ironically, those who push the gender agenda like to wrap themselves up in feminist rhetoric, when the soul of their point is that women are too weak, too emotional, too incapable to fend for themselves.  And those who note the obvious are labeled by the dreaded misogynist epithet.

At Concurring Opinions, University of Miami lawprof Mary Anne Franks goes after a local Georgia lawmaker for doing the unthinkable, calling those who accuse “accusers.”  This is a direct slap in the face of the feminist cult of victimhood, and Franks isn’t going to stand for it.

Georgia state representative Bobby Franklin (R-Marietta) has recently proposed a bill that would require the word “victim” to be replaced with “accuser” in the state’s criminal codes. If this were the whole story, the bill might pose a moderately interesting metaphysical question: aren’t all crime victims merely accusers unless and until a court delivers a conviction?

While the answer to that question is perhaps rather obviously no, that is not the question the bill actually raises: Rep. Franklin doesn’t think that people who claim to have been robbed, assaulted, or defrauded are merely “accusers.” No, those people are still “victims” even before a conviction is handed down, and indeed even if no conviction ever materializes. The bill only applies to certain crimes – namely, rape, stalking, and family violence. That is, the only crimes affected by this bill are those crimes disproportionately committed against women and committed disproportionately by men.

I’ve broken up Franks’ lengthy paragraph (you know how lawprofs write) to make it marginally readable.  While she includes what purports to be a link to the proposed bill in her content, it’s not.   Here is a link to the Georgia bill,  Franks’ link goes to the opposition party’s criticism of the bill.  It must have been an inadvertent mistake, no doubt.

As Franks teaches criminal law, as well as “law and gender,” one might suspect that she would recognize the nuance that there are two independent elements basic to any prosecution, the first being that a crime has been committed, and the second that the defendant committed the crime.  But nope, no room for nuance when it comes to the gentler sex.

What accounts for this exceptional treatment? Neither the bill nor Rep. Franklin himself offers insight into the bill’s logic, and so we are left to speculate. Perhaps Rep. Franklin has fallen victim (or do I mean accuser?) to the unfounded yet persistent belief that false accusations of rape are significantly more common than those of other crimes. The bill provides yet another opportunity for misogynists to rehash hysterical statistics on false rape reports…as well as a host of other anti-feminist canards, such as the claim that feminists don’t believe women ever lie about rape. How wearying it is to have to cover the same ground, over and over: of course people sometimes lie about rape.

She’s quite right that thinking is hard work, and obviously has tired her out, though not sufficiently to prevent her from sticking the word “misogynist” in there, as no righteous feminist rant is permitted without calling their enemies names and impugning their motives in the absence of basis. 

While Franks’ point, that there are other crimes aside from those disproportionately committed by men against women where it’s unclear that a crime has in fact been committed, thus making it unclear whether the person is victim or accuser, there is no crime which is disproportionately based on the mere say of one person against another.  Violent rape is a clear exception, but it’s also a great rarity. 

While few criminal defense lawyers would disagree with Franks if her point was that all purported “victims” be referred to as accuser until such time as a conviction was had, such that they aren’t brought into court on a stretcher, evoking sympathy before any evidence that a crime was committed has been adduced and approved by a jury.  But she isn’t saying that, and certainly doesn’t mean that.  The point here is that rape victims and victims, no additional proof required.  If a woman cries rape, then rape it is, and anyone who questions the accuser victim is a misogynist.

Rather than leave any doubt as to the emptiness of her logic, Franks rams it home with this reasoning.

Even if there might be some merit in a general prohibition on the term “victim” prior to a court determination that a crime has been committed (although whatever merit this prohibition would have is meager indeed, as it defies logic to claim that a person has only been victimized if some perpetrator is proven guilty of the crime in a court of law. This would mean that all unsolved murders have no victim; all unreported crimes have no victim; all crimes not resulting in convictions due to bad lawyering or jury error have no victim), to apply this prohibition only to crimes committed primarily against women is simply unjustifiable.

“All unsolved murders have no victim?”  Here’s where we get back to that whole thoughtful nuance thing that kicks the crap out of feminist rhetoric.  You see, unsolved murders leave dead bodies behind.  Most crimes have evidence that facially supports the occurrence of a crime.  That’s what the knife sticking out the dead person’s chest means, that someone killed him.  But even then, it’s impossible to say it’s a murder until we know that it wasn’t some women fending off a would-be rapist who, after the fact, decided to become part of that grand under-reporting statistic.  Screw the dead body, who’s the real victim here?

On the other hand, the vast majority of alleged sexual assaults and rapes come with no evidence that a crime occurred.  The only thing that distinguishes a rape is a woman’s word that she did not consent to sex.  That’s a pretty big difference, yet one that eluded Franks when she chose to disparage Bobby Franklin’s motives.

Not knowing Franklin or having any particular reason to defend his family honor, I won’t ascribe lofty purpose to his sponsorship of this bill.  At the same time, placing the mantle of victimhood on anyone merely because of gender is wrong and irrational.  If there were any real feminists left out there anymore, they would denounce these neo-feminists whose argument is ultimately grounded in the notion that women are just too weak, too fragile, to manage without special dispensation.

Neo-feminism does neither women nor law much good, demeaning both in the name of an agenda.  It doesn’t matter in a court whether women are the gentler sex, especially deserving of the title “victim” lest their feelings be hurt.  Either there’s proof of a crime or not, regardless of how many men are called misogynist in the process.