A very provocative post by Richard Granat at  eLawyering  questions whether LegalZoom will end up as the largest law firm in the United States.

LegalZoom has been beta testing a concept which links its marketing capabilities to a network of law firms that offer legal services under the LegalZoom brand. With some state bar associations accusing LegalZoom of  the unauthorized practice of law,  it might makes sense for the company to seek deeper alliances with networks of attorneys who are able to offer a full and ethically compliant legal service. Solos and small law firms, leveraging off the visibility and prominence of the LegalZoom brand, could reduce their marketing costs and enable these firms to better capture consumers who are part of the “latent legal market”  on the Internet. It could be a win/win for both parties.

One might expect my reaction to be slightly negative to such a suggestion.  After all, I’m no fan of the concept of half-baked self-help, nor unbundled services that glom as much money as the client is willing to cough up while taking no responsibility for helping them out of the hole they’ve dug for themselves.

But I’m not entirely negative about the concept.  Not that the name LegalZoom sounds any better to my ears than its predecessors in cheap, fast legal services, but more along the lines of the Wal-Mart concept.  Lawyers are inaccessible to most people, and lawyers are starving.  It’s a lose/lose at the moment.

Much of the reason, I suspect, is that too much time and effort are put into gaining clients through extraneous means, and the costs of running a well-functioning practice are too high.  If we could eliminate the client acquisition aspect, and at the same time gain beneficial economies of scale, perhaps we could do a heck of a lot better delivering excellent legal representation at a lower cost to clients while maintaining a reasonable level of income to lawyers.  Granat’s win/win.

The fear, of course, is that it won’t end up that way.  The fear is that the lawyers who would hook up with as shabby an outfit as LegalZoom would be the low-renters, doing ever less to earn their buck and delivering the least and worst legal representation possible.  Who would be there to stop them?  Who would toss the losers out on their butt for failing to do right by their clients?  LegalZoom?  Gimme a break.  As long as they get their piece, Robert Shapiro will go on smiling.

Granat raises this problem:

Perhaps there should be a “safe harbor” that enables organization’s like LegalZoom to experiment with new patterns of legal service delivery that could operate for a limited period of time in a specific state, like California, The experience would be evaluated carefully as a basis for rule and policy change. The evaluation would be aimed to see if client’s interests are compromised in any way, and whether the delivered legal service is less expensive, without compromising the quality of legal service.

This involves a risk, but there is no change that doesn’t.  Since we aren’t doing much now to deliver high quality low cost legal services, it seems like a risk worth taking, provided some very serious thought goes into it to make sure that we’ve minimized the risks to clients and leave no one the worse for the experiment.

Instead of creating legal profession regulatory policies that are based on the legal profession’s idea about what is good for the consumer, policy could be based on real experience and facts. Experimentation is good. It leads to change, and in other industries improvement of methods and approaches over a period of time.

This, unfortunately, is where Granat’s plan scares me.  I can understand why he doesn’t want the same, old stodgy ABA types killing any novel concept before it gets half a chance.  Clearly, they’ve made a royal mess of things thus far, and the idea of putting into the official hands of the bar to come up with ways and means to save us from the official hands of the bar seems, well, counterproductive.

But then who?  No really, that’s a question.

There’s no potential client out there who won’t tell you that the cost of legal representation seems unbearably high.  Sometimes they’re right.  It’s unlikely that we will ever be able to provide legal representation that satisfies everyone, or is affordable to everyone, and when it comes to indigent defense, there can be no substitute for providing a competent, and not overworked or uncaring, lawyer to every defendant charged with an offense who is unable to afford counsel.

But that leaves a huge swathe of Americans without access to a lawyer.  Pretending that anybody can be their own lawyer is a sham, which will ultimately end badly.  Pretending that lawyers can fix this on their own is nuts.  We need to open our minds to new concepts that will fulfill the promise of delivery of legal services to all who need at as reasonable a cost as possible. 

It’s not that I have an answer on how to accomplish this, and it’s not that I don’t see the pitfalls and problems some ideas present, but we need to find a new way to do this.  The first step is opening our minds to new approaches.

It was but a few days ago that I  posted about scraping by those who mistakenly feel justified because we’re “on the same team.”  Then I received an email yesterday  from Turk who alerted me to a similarly troubling post over at  Volokh Conspiracy by David Post about lousy legal writing.

Post’s post (don’t blame me, I didn’t name him) included this prefatory paragraph:

So here’s some really, really lousy legal writing. It’s from today’s Legal Intelligencer, a local trade publication that covers legal developments in and around Philadelphia. I’m quoting the article in its entirety, because it is posted online behind a subscription firewall (and, lest our lawyers get worried, I’m relying upon the fair use doctrine’s protection for “criticism and commentary” in so doing).

Eugene Volokh then received the following (which I quote again in full — perhaps we’ll get a takedown notice for this?):

Mr. Volokh:

I am Deputy General Counsel for ALM Media Properties, LLC, which owns the copyright in the Legal Intelligencer, including the article by Mr. Shannon Duffy republished in its entirety on your site at:
http://volokh.com/2011/01/07/lousy-legal-writing/

Please consider this email a DMCA takedown notice for the article by Mr. Duffy. While the author claims that the “comment and criticism” aspect of “fair use” entitles him to intentionally copy the entire article from behind the Legal Intelligencer’s paywall and reproduce it on your site, such wholesale copying is, as you surely know, not consistent with fair use. Please remove the article from your website. If you have any questions, please contact me. And as a vocal advocate of clear and grammatical writing, if not copyright laws, Mr. Post might want to consider replacing the semicolon in his first sentence with a period. The semicolon is unnecessary.

Fabio Bertoni
Vice President, Deputy General Counsel
ALM Media, LLC

As Mr. Bertoni notes, I had noted in the original posting that my use of the full text of the article fell within the “comment and criticism” protections of the fair use doctrine, and would protect us against an infringement claim.

It’s the new heroin for the Slackoisie, according to a new study at Ohio State University in conjunction with Brookhaven National Laboratory, as described in an article at PyschCentral.  It’s not just that they want it, but that they need it.  Need it more than food.  Need it more than sex. Need it more than anything else.

Ohio State University scientists found that college students valued boosts to their self-esteem more than any other pleasant activity they were asked about, including sex, favorite foods, drinking alcohol, seeing a best friend or receiving a paycheck.

“It is somewhat surprising how this desire to feel worthy and valuable trumps almost any other pleasant activity you can imagine,” said Brad Bushman, Ph.D., lead author of the research.

“It wouldn’t be correct to say that the study participants were addicted to self-esteem,” Bushman said.

“But they were closer to being addicted to self-esteem than they were to being addicted to any other activity we studied.”

We’ve been told not to smoke or drink during pregnancy for excellent medical reasons.  But what about playing those Baby Einstein DVDs, as if it were that simple?  Parents don’t play them for the sake of the baby (though they fool themselves into believing it), but for their own sake, wanting their spawn to be the bestest ever baby.  From womb onward, they need that validation.

The product of their being reared with the expectation that they will have it all (or as Burger King found would sell more fast food, have it your way) is that they believed it.  I know, crazy, right?

Findings showed that people with a strong sense of entitlement were the ones who were most likely to “want” the good things in life – including boosts to their self-esteem – even more than they actually “like” them.

“Entitled people want all the good things in life, even if they don’t particularly like them,” Bushman said. “Of course, there’s no problem with enjoying good things, but it is not healthy to want them more than you like them.”

More than unhealthy, it produces miserable, disaffected, unmotivated, whining lawyers.  Having gotten the trophy for being the “final winner” (as opposed to what they really were, the last place loser) confused them such that now, as they show up at an office with their shiny shoes, shiny cheeks, shiny iPhone, they can’t fathom why their name isn’t on the firm letterhead and they aren’t seated in the corner office.  More to the point, the same writing that earned them an A- in law school, the very bottom of the curve, isn’t receiving the oohs and aahs it did from their kvelling parents and lawprofs. 

Always be constructive in your criticism, and always, but always, lead off with a positive before saying anything that could be construed as even slightly critical.  That’s pedagogy today.  Parenting is far more restrictive, since nothing is ever bad, wrong or sucks, and nobody ever loses.

“American society seems to believe that self-esteem is the cure all for every social ill, from bad grades to teen pregnancies to violence,” he said. “But there has been no evidence that boosting self-esteem actually helps with these problems. We may be too focused on increasing self-esteem.”

Study co-author Crocker added, “The problem isn’t with having high self-esteem; it’s how much people are driven to boost their self-esteem. When people highly value self-esteem, they may avoid doing things such as acknowledging a wrong they did.

In other words, the same drive for self-esteem precludes them from recognizing when they don’t deserve a balloon.  To the Slackoisie, they always deserve a balloon.  Their work is always wonderful, no matter whether they phone it in (but I do my best work in my pajamas at two in the morning) or the out of touch curmudgeon partner tells them they really can’t use hashtags in appellate briefs.

And now, the requisite caveat:  Fortunately, not all parents failed miserably in raising their little darlings. Some told them they have to work for the things they want.  Some explained that life isn’t always fair, and doesn’t always give them the best of everything.  Some even informed Muffy and Buffy that they lost the race and the cute little trophy meant nothing. 

Not all Millennials are Slackoisie.  More importantly, even if you are, you have the ability to change any time you want.  You can even do it this very moment, realizing that the planets don’t revolve around you and that the reason you’re sitting on the couch in your parents basement eating Cheetos and playing Mortal Kombat isn’t because the world has yet to recognize that you really are Baby Einstein.  You can get to work anytime you want.  Try self-respect in place of self-esteem, and you can still have that future you were promised.

Or you can sit there craving the next unearned compliment. Your choice.

H/T Stephanie West Allen

Every year around this time, I write about my stint at Cardozo Law School’s Intensive Trial Advocacy Program, which I’ve come to believe to be one of the most useful instructional tools around.  Tout the elite schools all you want, but should you end up actually doing lawyer-type stuff, like trying cases, tossing around your Harvard pedigree isn’t likely to get you an acquittal. 

Knowing how to try a case, on the other hand, just might make you a real lawyer.

This year, Peter Walsh, the administrative director of the program developed by hardcore lawprofs Barry Scheck and Ellen Yaroshefsky, entered the digital age by posting a video about the program, which I’m thrilled to share.



Law students, if your school doesn’t offer a program that might actually provide you with a foundation for the skills you will need to become a lawyer, ask why not.  A law school that is happy to cash your student loan checks while failing to provide you with the tools of the profession is failing you.  Stop whining about it on JD Underground and demand a program like this at your school.

Stephen Yagman.

Tim Lucas.

Mickey Sherman.

Three to a cell?  They could talk amongst themselves about their problems, their needs, the pressure they were under.  They could embrace each other and commiserate.  They could agree how unfair it all is, how wrong it is, how onerous the consequences.  All have been sentence to a term of imprisonment for failing to pay their taxes.

Is there something about lawyers that lends a sense of invulnerability to decisions that would otherwise be so utterly clear as to be beyond dispute?  Our clients expect us to advise them wisely, yet lawyers behave in a manner guaranteed to bring the wrath of the government down on their head?

I can’t help but see this, to some extent, as a sign of the times, the hubris of believing that we are so powerful and important that we can ignore the obvious and somehow avoid the consequences of conduct that everyone knows will follow.  Combined with the rather sick need to pretend to the world that we are fabulously successful and wealthy, and thus must have all the toys that successful and wealthy people have.  The Mercedes.  The Big House (no, not that big house, which comes later).  The iPad with unlimited access. 

These things cost money, and money has to come from somewhere.  The need to show off the world is far more pressing than the need to pay estimated taxes or send a check on April 15th.  Nobody is impressed with you for paying your taxes on time.  It’s not like you can put a sign on the side of the BMW that says, “and I paid my taxes too.”

Worse still, if you’re hellbent on screaming loud and often, “look at me, look how important I am,” then don’t be surprised if someone does.  Mickey Sherman had Larry King on speed dial.  How could he spend his evenings on the tube and not live the life of a celebrity?  It wouldn’t be right.

Yagman was a “crusader against police brutality.” and you tend to make enemies when you do stuff like that.  These are enemies looking for a way to pay you back for calling them bad names.  Nothing would please them more than to be able to call him bad names too, so why hand them a reason on a silver platter?

Lucas “lived an extravagant lifestyle during the years that he failed to pay his taxes, including spending $100,000 on trips to the French Caribbean territory of St. Barthelemy and $65,000 on trips to New York City.”  He argued at sentence that his excessive spending was the product of mild bi-polar disorder, and indeed it may well have been. 

“I have lost everything tangible and intangible,” he said. “My reputation, my law license, my ability to earn a living and my ability to provide for my family,” he said.

“I have lost everything I worked to gain in 37 years.”

Up for argument before the Supreme Court next Wednesday is Kentucky v. King, raising the question of whether a search can be justified under the exigent circumstances exception to the warrant clause when the police create the exigency.  Oddly, the issue is framed thus:

Under what circumstances can lawful police action impermissibly ”create” exigent circumstances that preclude warrantless entry?

Undercover police officers bought drugs from a suspect in an apartment hallway; the suspect then went into an apartment. The undercover called in the police to make the arrest, but the police did not hear which apartment the suspect entered. The police arrived in the hallway, but weren’t sure whether the suspect had entered the left apartment or the right apartment. They approached the left apartment and smelled marijuana coming from inside. The police knocked, announced that they were the police, and then heard something inside. After no one answered, the police forcibly entered the left apartment and found King smoking marijuana inside. The officers had chosen the wrong apartment: The person who had sold drugs had entered the right apartment. Nonetheless, King was then charged with marijuana offenses.

Yet again, ignorance by the police justifies more expansive conduct than would have been the case if they had heard which apartment the suspect entered.  Of course, if they failed to hear the undercover’s transmission properly, they could have just asked him to repeat it before acting, but nobody seems to be concerned with this aspect of the case.

Unusual for a Supreme Court case, the parties persist in a factual dispute as to what the officers actually did when the knocked on the apartment door.  The state argues that the officers “merely” knocked and announced.  The defense contends they knocked, announced that it was the cops and “demanded to let inside.”  The trial court found for the defendant’s version. 

Following the knock, announce and whatever, the testimony was that the officer “couldn’t tell what the sound was, but that the sound was ‘possibly consistent’ with the destruction of evidence.” 

Believing that they were in hot pursuit of a fleeing felon, that the felon had recently entered the left apartment, and that the felon was now destroying physical evidence of his crime of trafficking, the police officers entered the apartment.

Curiously, the greatest boon to warrantless police searches, the objective basis permitting such atrocities as pretext searches, disappears when subjective (I believed) bases serve the cause.

The law is already clear that police cannot manufacture an exigency in order to circumvent the warrant requirement.  The issue here is whether their knock, announce and whatever, constituted the creation of exigent circumstances, or just the sort of routine investigatory conduct that police do, mirroring what normal folks are allowed to do. 

After all, anybody can knock on a door and announce that someone is out there, so why shouldn’t the police be permitted to do so as well without rupturing the Fourth Amendment?  Anybody can knock on a door and ask (nicely) to speak with the good folks inside.  If the good folks inside aren’t in the mood to chat, they have the right to say “go away.”  The police have done nothing wrong, and nothing more wrong, than anyone else would be entitled to do.  They can’t be blamed for the occupants reaction to their knock.

Kentucky v. King is another in a line of cases that addresses the police under the fiction that they are no different than anyone else, and we are not merely entitled to, but in reality do, treat them no differently.  The phrase that immediately comes to mind is submission to the shield, the fact that most people will do as directed by the police for no better reason than their free will is overcome by police demands. 

While the factual dispute may seem critical to the legal analysis, it’s trivial in the context of the real world.  Loud banging on the door and screams of “Police” conveys as much of a message as is needed.  It really doesn’t matter a great deal what follows, as any non-comatose occupant should reasonably expect the door to come crashing down momentarily.

The justification for the claim of exigency is the reaction to the police mistaken choice of doors.  Noise is heard inside.  What noise isn’t clear, except that it could have been “consistent” with the destruction of evidence.  Does that mean “scurrying about,” or the flushing of a toilet perhaps?  Of course, such sounds are consistent with getting the kids, the dog, grandpa, out of the room before the police enter and start shooting.  Or that at the moment the police knocked, someone was on the toilet and would prefer not to be when their apartment is swarmed by black-jacketed SWAT officers.

In other words, following the police knocking and announcing, the only reaction that wouldn’t conceivably be “consistent” with the destruction of evidence is total silence.  Then again, if they listened at the door in advance and heard any sound at all, but only silence after their knock and announce, that too would be suspicious and spun into a justification for entry, as they were silently destroying evidence and trying to conceal their presence.  That makes them really shifty criminals rather than dumb, obvious criminals. 

Of course, the occupants could, upon hearing the police knock and announce, respond that they are coming to open the door and do so.  But then, the underlying premise is that they have the right to ignore the knock and announce, in the absence of a warrant.  So if the only “proper” course is compliance with the implicit demand for entry, they lose either way.  There is no right to ignore the cops at the door, as one would have if was anyone else.

This case thus really raises no issue at all, which means that its hearing by the Supreme Court can’t be good.  The fiction that reasonable people can simply ignore the police, parsing their words (and the volume of their delivery) for commands versus polite requests and taking the long view from the bench of how reasonable people behave when confronted with the shield is absurd.  Try exercising all those rights the Supreme tell us we possess to be free of police overreaching.  Just be sure to have your video camera at the ready and a fast uplink to Youtube.

Bear in mind as your dog/child/grandparent lies on the floor bleeding out that you can take comfort in embracing the same legal fiction as the Supreme Court of the United States, that you can honorably ignore the banging on your door of police without fear.  After all, that’s your right.

As President Obama resubmitted the names of judges to the Senate for its advise and consent,  one name was missing from the list, Robert Chatigny, the Connecticut District Court judge up for the Second Circuit.  He had this to say:

An assistant who answered the telephone at Chatigny’s chambers in U.S. District Court in Hartford, Conn., read aloud a statement attributed to the judge: “It was an honor to be nominated to the Court of Appeals, and I’m deeply grateful to everyone who supported my nomination.” The assistant said Chatigny had no further comment.

There may have been more words in his statement than supporters backing his nomination.  Being less than familiar with Judge Chatigny’s record, his being from the provinces and all, I looked to Norm Pattis for critique.  And critical he was.

Let’s set the record straight: Robert Chatigny’s nomination to the United States Court of Appeals for the Second Circuit, one of the most prestigious federal judgeships in the nation, did not fail because of excessive partisanship. It failed because Chatigny was temperamentally unsuited for the position. Chatigny is not a victim.

At the time of his appointment, he had never tried a case to a verdict — ever. Sure, he’s plenty bright. But smart lawyers are a dime a dozen. Lawyers with a feel for what a trial is and how to conduct one are far more rare. That is the sort of sense you cannot acquire merely reading a book or briefs.

And the  trench lawyer movement goes on. Unrecognized and unappreciated.  Next on the President’s list for the Second Circuit?

But instead of seeing this failure of a nominee as an opportunity to promote change and bring experience to the bench, the president is looking to the same old status factories for new judges. He has resubmitted Susan Carney’s name as a nominee for the Second Circuit. As I wrote month’s ago of this nominee:

“For all I know Susan Carney is one of the law’s gems, a legal genius of rarefied intellect and Solomonic wisdom. Her resume is certainly impressive. Harvard College. Harvard Law School. Federal court clerk. Counsel to the Peace Corp. Yale University legal counsel. She glitters.

“Yet for all that, I never heard of Carney until President Barack Obama appointed her for a seat on the United States Court of Appeals for the Second Circuit.

Norm summed up the problem in two words, “she glitters.”  Glitters.  Hardly an adjective used to describe anyone who has done time in the trenches.  Trench lawyers are dirty.  Trench lawyers smell funny.  Trench lawyers get blood on their hands from pounding on tables and beating on doors.  Their shoes have holes in their soles from too much walking.  Their suit jackets aren’t always well-pressed.  There may be a tiny drop of marinara sauce on their tie from working during lunch at a back table in the little Italian restaurant around the corner from the courthouse.

But one thing is clear.  Lawyers who work in the trenches do not glitter.

What they do, however, is understand what happens in the trenches when the glitterati make decisions.  The flawed assumptions of how people think and behave, the pretense that they say “play nice” is followed in letter and spirit, the sanitization of the trenches so that none of the muck is splattered on their clean, black robes.  They know that some people are evil and vicious, but that even bad people have nice children who deserve a chance in life.  They know that good people make bad choices, and not everyone who commits a crime deserves death.  Or, if the crime is really bad, death plus cancer.

But I suspect President Obama, despite his elite background, is aware of this.  His problem remains getting nominees past the Senate Judiciary Committee,  This isn’t to say that, if smooth sailing was assured, he would scrape the trenches for a pick.  But he’s struggled up to now, and it’s only going to get worse as Senators like Jeff Sessions, the bankers’ friend, flex their muscles.  It’s comforting to know that the Second Circuit, covering the New York and environs, is protected by the Alabama Republican.

While it’s fine to say that actual lawyer experience like, oh, trying cases or holding the hands of actual litigants would be a worthy factor in considering who should sit on the bench and issue the ruling that will alter the lives of so many, the baggage carried by trench lawyers has too many stickers, too many nicks and cuts, to satisfy the demands of partisanship.  In Washington, it’s all about compromise and consensus, which means that we’re doomed to ride a camel instead of a thoroughbred.

Chances are clearly better for Susan Carney than they are for Robert Chatigny, especially now that his name has been withdrawn.  And Norm is right, she glitters.  But she will never know the feeling of waiting for the jury foreman to announce a verdict, and no one cares.

In his  New York Times column, Stanley Fish closes with this assertion:

Perhaps the most amazing statement is made by Daniel J. Solove when he declares that “the law is hampered because it overprotects free speech.” The conventional first-amendment wisdom is that free speech cannot be overprotected, but that wisdom is put on trial by these thinkers.

“The inherent worth of . . . speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” Or, in other words, a writing or utterance says what it says independently of who happens to say it; the information conveyed does not vary with the identification of the speaker.

There are at least two problems with this reasoning. First, it is not true that a text’s meaning is the same whether or not its source is known. Suppose I receive an anonymous note asserting that I have been betrayed by a friend. I will not know what to make of it — is it a cruel joke, a slander, a warning, a test? But if I manage to identify the note’s author — it’s a friend or an enemy or a known gossip — I will be able to reason about its meaning because I will know what kind of person composed it and what motives that person might have had.

In the same way, if I am the recipient of a campaign message supporting a candidate or a policy, my assessment of what I am reading or hearing will depend on my knowledge of the sender. Is he, she or it an industry representative, a lobbyist, the A.C.L.U., the Club for Growth? The identity of the speaker is part of the information and is therefore part — a large part — of the meaning. (“Consider the source” is not only commonplace advice; it is a theory of interpretation.)

But as judges love to say in reaction to objections to low quality evidence, it goes to weight and sufficiency, not admissibility.  The anonymous voice can be heard, but at a discounted price.  To the extent that the source matters, as it often does, the anonymity comes at the cost of credibility. 

The problem, the lawprofs explain, is that the great “marketplace of ideas” is turned into an echo chamber of fraud when any fool can post any lie at any time.

Cass Sunstein invokes this hoary metaphor only to call it into question. Rumors cascade, Sunstein explains, when someone relies on what someone else has said and then spreads a falsehood as truth. The Internet multiplies the effect exponentially: an “initial blunder . . . can start a process by which a number of people participate in creating serious mistakes.” Rather then producing truth, the free and open marketplace of the Internet “will lead many people to accept damaging and destructive falsehoods,” and unless there is “some kind of chilling effect on false statements,” the “proper functioning of democracy itself” may be endangered.

Certainly, knowledge is a core requirement of a functioning democracy, and no one would dispute that a lot of false information, crap knowledge, is spread across the internets.  That’s not to say it isn’t spread everywhere else we go for information, both anonymously and attached to specific names, like Hannity and Beck, who don’t appear shy at spreading their brand of ideas.

The scholarly answer of Saul Nussbaum, co-editor of the book, is to condition  Section 230 protections on internet publishers willingness to play supplicant to the aggrieved and sensitive souls who are stung by anonymous speech.

Saul Levmore (Nussbaum’s co-editor) suggests that immunity might be conditioned on the willingness of a provider either to take down a message after notice of its falsity or defamatory character has been given, or “to enforce non-anonymity” and thus open the way for an injured party to seek redress. The law, writes Anupam Chander, “should allow the individual to find information to lead her to the person who committed the privacy invasion.” As it is now, with an expansive reading of Section 230, “the law no longer puts any obstacles in the way of the Sociopath” who, traveling on the Internet, can go anywhere and spray venom that lasts forever. (Leiter)

Notably, the obstacles Brian Leiter would place before the “Sociopath” are the same he would place before Publius and everyone in between.  Whether the anonymous internet author did wrong, and thus should be outed upon pain of sanction, would be left in the hands of the aggrieved.  The aggrieved isn’t necessarily any better a source of “truth” than the anonymous author.  Indeed, the aggrieved may be the worst source of truth around.

The classic solution, whether taken from Milton’s Areopagitica or Brandeis (sunshine is the best disinfectant), is that truth will correct falsity; lies will provoke counterspeech to correct them.  The academics complain that, for reasons unclear, this doesn’t happen on the internet. 

Conceding the merit of the complaints, together with the perception, if not the reality, that falsehoods and attacks spread smoother online than elsewhere, so what?  The scholars response is to differentiate speech into new classifications, more or less worthier of protection.

Yet faced with the problems posed by the Internet, they start talking about “low value” speech (a concept strong first-amendment doctrine rejects) and saying things like “autonomy resides not in free choice per se but in choosing wisely” and “society needs not an absence of ‘chill,’ but an optimal level.”(In short, let’s figure out which forms of speech we should discourage.)

No one could argue against “choosing wisely,” there being few poor choice advocates around.  But it raises some obvious questions: Who gets to decide what choices are wise, and one person’s “low value” speech is another person’s hidden truth. 

Whether described as slippery slope or road to perdition, this misguided attempt at institutionalizing the worthiness of speech, at the end of a club, will necessarily end up with internet publishers (meaning guys like me who have blawgs where people comment) taking the safe path of eliminating anything controversial or potentially antagonistic so that no feathers are ever ruffled, and no summons and complaint (or worse yet, indictment) ends up at my door.

This is a zero sum game when the determination of low value speech is subjectively left in the wringing hands of the well-meaning academics.  Most are too young to remember the censorship boards of the ’50s, making sure Harriet was never seen bedded with Ozzie to prevent lustful thoughts in children. 

Dan Solove, whose seminal work, The Future of Reputation, on internet privacy remains the best around, has a firm grasp on the many and varied problems free speech on the internet poses.  If anyone can appreciate the risk, Dan can.  But that doesn’t make this next step, that the first amendment “overprotects” speech a viable response. 

Speech can be nasty and harmful.  Speech can be frustrating.  Speech can be false, wrong and outrageously misleading.  But it remains speech, along with all the truly necessary and good speech that we want and need, and is similarly perceived by those who would prefer it silenced as nasty and harmful.  There is no middle ground based on what makes some academics or the aggrieved happy, and there is no such thing as speech overprotected. 

It sucks to be the undeserving target of an internet assault.  We all get that.  There’s just no alternative that won’t spell the death of speech.  Name your poison.

There’s an element of flattery in having someone else scrape your content, assuming that it’s not just some bot mindlessly taking whatever can be found in an RSS feed to fill the void of some scumbag marketer’s scam website, with copyright infringement statement still attached.  But it’s different when the scraping is done by a website that bears some simpatico relationship.

This happens, and sadly, with some frequency.  The proprietor of a website/blog that shares an interest in the subject matter of Simple Justice will see something here and say to themselves, that would do well on my site as well.  It’s an active decision. 

Sometimes, people will email me and ask if they have my permission to do so.  My reaction is generally that they can use a brief excerpt, though I would urge them to add something of value to what they use.  Merely copying and pasting is intellectually empty, it’s already here and there’s no reason to repeat it elsewhere.

Other times, however, it just shows up somewhere, without permission, commentary or added value.

It happened against yesterday, at a blog called Sex Offender Issues.  This isn’t the first time either.  There is no email of the owner(s), but one of those contact forms everyone hates.  I used it, sending them a nice request (no really, it was quite polite) asking them to remove my content and to please not scrape again.  That was yesterday.  Today, it’s still there.  It may be there tomorrow.  It may not.

The post includes a link back here.  It makes no mention of the author or original source, but it does have a link.  At the bottom of the page, however, there is a “fair use statement” that explains its “authority.”

This site may contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of political, medical/scientific, economic, and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml and   http://en.wikipedia.org/wiki/Fair_use.

There are only three things a cellphone and a pack of cigarettes have in common.  Both begin with the letter “c”, and they are roughly the same size.  Oh yes, and they are ordinarily found on a suspect’s person.  That was all the California Supreme Court needed to conclude that police do not require a warrant to search a cellphone.

From the SFGate :

Under U.S. Supreme Court precedents, “this loss of privacy allows police not only to seize anything of importance they find on the arrestee’s body … but also to open and examine what they find,” the state court said in a 5-2 ruling.

The majority, led by Justice Ming Chin, relied on decisions in the 1970s by the nation’s high court upholding searches of cigarette packages and clothing that officers seized during an arrest and examined later without seeking a warrant from a judge.

Regular readers can anticipate what I’m about to write: This is another instance of following the rubric while forgetting the rationale, the judicial road to perdition.  Searching the contents of a pack of smokes as a search incident to arrest is justified under the notion that it could contain a weapon, such as a razor, or physical contraband, such as marijuana or cocaine, neither of which would do well to remain in the defendant’s possession after arrest, nor returned to a defendant subsequently.  It’s not the firmest rationale around, but not entirely nonsensical.  It’s at least the natural offshoot of container searches.

Of course, container searches, as part of a search incident, are a slide down the slippery slope, as a seized defendant, once separated from any container that might hold a weapon or contraband, no longer has access to it for use against a police officer.  At that point, there is nothing to prevent police from obtaining a warrant at their leisure to search anything they have cause to search. 

Container searches are nothing more than a shortcut to ease the burden of requiring a warrant.  This is justified under the “easy button” clause of the 4th Amendment, a little appreciated, invisible portion of the text that says “no officer shall be required to obtain a warrant from a neutral magistrate when we all think it would be easier to just let them search what they want, knowing that they’re going to do it anyway.”

Which brings us to our latest, favorite, ill-conceived theoretical justification for using bootlegger-conceived law to eliminate virtual privacy, tech neutrality.  The brain-child of Orin Kerr, and being increasingly adopted by courts due to its ease of application combined with its scholarly approval, tech neutrality will, in my opinion, result in digital privacy being dead on arrival.

In the past, Orin has asked me to give him an example of why I disagree so strongly with his approach.  Add this case to the list.

Monday’s decision allows police “to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person,” said Justice Kathryn Mickle Werdegar, joined in dissent by Justice Carlos Moreno.

When you open a pack of cigarettes, you may find a weapon.  Maybe even a small quantity of drugs.  Regardless, you are likely to find some tubular objects containing brownish vegetative matter.  What you will not find is eight gigs of names, phones numbers, messages, texts going back seven months, laundry lists, songs, ringtones and a whole host of personal information about a person that ends up stores in a chip.  Cigarettes tell you that the defendant may not be as concerned about his health as others, and whether he prefers regular or menthol.  Cellphones tell a lot more. 

And let’s not even talk about those newfangled cellphones, like iPhones or Blackberries, which may well have a person’s life story inside.

There’s no question that a cellphone or smartphone passes the Katz test, that we have a reasonable expectation of privacy in its contents.  There’s no question that it’s common, and will be increasingly common, for people to have a cellphone or smartphone on their person at the time of arrest, making it subject to the search incident exception.  Let’s face it, cellphones are now a ubiquitous part of our existence.  Heck, even  I carry a Jitterbug (#notreally, for those too literal to realize this is a bit of humor) if I can remember where I last put it.

Of course, the appropriate reaction to this plaintive post is that the rationale behind container searches, finding physical items before harm is done, doesn’t apply to a device that can only contain digital evidence, and that the California Supreme Court’s decision is a wrong application of the tech neutral doctrine.  Had the court applied the doctrine properly, it could be argued, by returning to the rationale for container searches rather than knee-jerk employing the rubric that “containers = exception to warrant clause,” we wouldn’t be in this pickle.

While the point has some merit, it fails in light of legal experience.  We start with The Rule, contained in the visible words of the Fourth Amendment.  From there, a judicial eternity is spent chipping, chipping, chipping away at the rule, crafting exceptions to prevent the rule from applying in individual circumstances.  Each time an exception is crafted, it’s grafted onto the rule in the form of a rubric.

Courts love rubrics.  They make for easy application, shorter opinions and a firm launching pad for the next extension of the exception.  Baby steps, if you will.  Given enough time, even baby steps cover a long stretch, until they’ve far outpaced the rule itself. 

That’s where we found ourselves in the late 1990s, where the warrant requirement was swallowed up by exceptions, rubric building upon rubric. Only by tracing each back to its roots could one discern that we ended up in a place that eviscerated the original point, The Rule.

And now, the exceptions are being applied, by analogy, to a technological world to which any pretense of reason would suggest there is no conceivable logical application, but only if one remembers why the exceptions were created and how we got from there to here.  That requires a long memory, and a lot of writing.  Rubrics are so much easier to apply.

So, in California at least, we now have a fourth similarity between a pack of smokes and a cellphone.  Neither requires a warrant to search.  It makes perfect sense, if you squint your eyes, don’t think too hard and are prepared to give up any privacy we once believed we possessed in exchange for a new iPhone and an easy button.