Chances are not too many readers here look to Pat Robertson for legal/political guidance.  While understandable, that puts us squarely in the minority.  The fact is that there is a big world out there with a lot of otherwise very nice folks who don’t see things the way we do.  We can wrap ourselves in righteousness for being more thoughtful and knowledgeable then the “masses,” but it’s a false comfort.  Majority matters.

From The Raw Story, the word is out that Pat Robertson supports the decriminalization of marijuana.

Count this among the 10 things nobody ever expected to see in their lifetimes: 700 Club founder Pat Robertson, one of the cornerstone figures of America’s Christian right movement, has come out in favor of legalizing marijuana.

Calling it getting “smart” on crime, Robertson aired a clip on a recent episode of his 700 Club television show that advocated the viewpoint of drug law reformers who run prison outreach ministries.

I’m constrained to admit that I have never watched the 700 Club.  Chances aren’t good that I will start now.  But I still recognize the significance of Robertson’s support.  There are a lot of people who do watch, far more than will read any word I write.  This is big.

I’m … I’m not exactly for the use of drugs, don’t get me wrong, but I just believe that criminalizing marijuana, criminalizing the possession of a few ounces of pot, that kinda thing it’s just, it’s costing us a fortune and it’s ruining young people. Young people go into prisons, they go in as youths and come out as hardened criminals. That’s not a good thing.”

For decades, politicians and pundits, religious leaders and regular Joes, said that it was a good thing.  A necessary thing.  The sort of thing we must do if we are to maintain our American way of life.  And now it’s not a good thing.  That’s great.

Robertson has adopted the language we’ve been using for quite a while, promoting “smart” in place of “tough.”  For those of us who credit Orwell, such rhetorical shifts open critical doors to rational voices.  No longer is the knee-jerk reaction that anyone who uses drugs, no matter what type or quantity, so worthless and disposable a human that we should throw them away.

Like Robertson, and unlike many of my contemporaries, it has never been my belief that pot is a benign substance.  It’s an intoxicant, and a fairly potent one at that.  Smoke a blunt and I don’t want you behind the wheel of a car.  It’s never been the same social lubricant as a glass of wine.  Others disagree with me, and I can accept that my view may not conform with others who might expect a more liberal perspective.

But we do share the belief that smoking pot shouldn’t land a kid in prison. 

Years ago, a judge who sat in Part N (“N” for narcotics) in Manhattan told me that she won’t sentence a pot defendant to probation.  My lawyerly reaction was to argue that her stance of rejecting probation, that being within the realm of sentences the legislature deemed proper for a person who was convicted of smoking pot, exceeded her authority.  It wasn’t up to a judge to decide that the low end of available sentences should never be imposed.  She was unpersuaded.  She categorically refused to sentence a marijuana defendant to probation.

The depth of the belief that marijuana is a drug that demands imprisonment is something that advocates for decriminalization simply cannot comprehend.  Whether because of the gateway argument or Puritanical prissiness, a large swathe of society believed that anyone who used marijuana was very much a criminal, and very much deserved a long term of imprisonment.  This inability to accept the fact that this was an article of faith in much of society made it difficult to address. 

The arguments haven’t changed.  The rhetoric is the same.  The difference is that Pat Robertson is a person who, merely by his word, will change blind adherence to this article of faith.  His say so means more than any argument.

Raw Story credits the new conservative blog, Right on Crime, and gives a  shout out to LEAP, Law Enforcement Against Prohibition, for providing the impetus to opening Pat Robertson’s mind about the danger and damage of decades of tough on crime policies. 

While the notion of religious leaders dictating political positions to their adherents remains deeply troubling, as it just as easily works against sound policy even though this time it happens to conform with policy with which we agree, the reality is that we will never be able to spread the word more broadly or persuasively to a vast array of people who would never credit our thoughts.  We need a Pat Robertson to sign on.

It’s only one issue.  It has not yet broadened to an acceptance of rational criminal policy based upon experience and reason rather than blind rage and fear.  But given how hard the fight has been, and how little progress has been made, having the word spread by Pat Robertson is huge.  Let us give thanks.

There are few occupations that have a greater impact on the well-being of children than teacher.  It’s moving when a teacher, arguing for a pay raise, writes, “if you can read this, thank a teacher.” It’s so reminiscent of cops, arguing for a pay raise, writing, “if you don’t like cops, the next time you’re in trouble, call a criminal.” 

But teachers aren’t cops, despite the marked similarities in approach and rhetoric.  That doesn’t mean they don’t want to be, however.  Via Popehat, the story of  Oklahoma math teacher DeLynn Woodside who saw her moment and seized.  Carpe Student.

A 13-year-old was arrested Friday in Oklahoma City, accused of violating a little-known city ordinance that prohibits possession of a permanent marker in some circumstances.

Delynn Woodside noted the marker had bled through a piece of paper onto the desk and reported to a police officer that she also had seen the teen writing on the desk with the marker, the report said.

Woodside, a seventh-grade math teacher, made a citizen’s arrest on the teen, and the police officer transferred the student to a Community Intervention Center that houses juveniles who have been arrested. The name of the minor was not released.

As Patrick deftly explains, no crime was committed under this anti-graffiti law.

Oklahoma City Municipal Code Section 35-202, the statute under which DeLynn Woodside arrested this young man, has this to say about possession of sharpie pens:

No person may possess an aerosol spray paint container or broad-tipped indelible  marker on any private property unless the owner, agent, manager, or other person having control of the property consented to the presence of the aerosol spray paint container or broad-tipped indelible  marker.

But Roosevelt Middle School is a public school.  It even says so on the Oklahoma City schools website. It is therefore public property.  This boy has as much right to be there as Ms. Woodside.  More right in fact.  He has to be there, whereas Ms. Woodside can quit her job at any time.  While it’s true that Roosevelt Middle School may not be dedicated to public use, as with a town square, it is clearly not “private property”.

But then, is the issue here whether this kid’s conduct met the elements of an Oklahoma City anti-graffiti law?  Let’s assume, arguendo, that happy, harmless, law-abiding DeLynn is a seething volcano of hatred under her hefty yet pale facade, waiting for the opportunity to explode all over some hapless 7th grader.  Teachers aren’t immune from psychotic episodes.  Teachers get angry.  Teachers act improvidently, dare I say stupidly, on occasion.

Let’s assume that DeLynn had a very bad day and made a rash and foolish decision to play citizen cop and “arrest” her student.  We can even go a step further and assume that DeLynn had been awaiting the opportunity to make a citizen’s arrest, perhaps dreaming of a spot on the evening news for protecting school property from miscreant sharpie-carrying students, winning the praise of taxpayers and the adoration of pencil pushers.  Maybe even getting her own reality show.  Hey, you never know.  Let’s give DeLynn all this.

What of the sane adults at Roosevelt Middle School?  Are there not supervisors, vice principals, an unvice Principal, whose duty it is to keep one nutjob math teacher from wreaking havoc on a student and a school? 

Let’s take it a step further, and assume this student was a bad seed, the sort of kid who knew, KNEW, that his sharpie was bleeding through the piece of paper onto a desk.  Let’s assume it wasn’t the first time he induced sharpie bleed, nor was this the first desk that was defaced at the end of his sharpie.  Bad to the bone.

What of the police officer to whom DeLynn relinquished citizen custody of this miscreant?  No matter how far this student had pushed DeLynn, beyond the limits any 7th grade math teacher could endure, did the cop not think to himself that this was the time to inject calmer, sounder judgment into this already tense situation?

And let’s go yet another step down the path of righteousness and assume that the police officer, feeling the pain of a fellow public servant who has suffered far too much at the hands of this sharpie-wielding  thug, felt compelled to adopt her rage and fear and push the arrest.

What of the kindly folks at the Community Intervention Center, where the worst of child predators are taken for the protection of society and school desks?  What passed through the mind of the intake person who dutifully copied down the information provided by this brave officer about this student’s deliberate, persistent sharpie bleeding?  Certainly the inclusion of the word “bleeding” is enough in itself to shake up even the toughest of child jailers, and they don’t call it “sharp”-ie for nothing.

That there are people who suck on the public teat whose judgment is so dangerously bad, whose ability to exercise reasonable discretion cannot be trusted, who simply lose it at some point in their career, comes as no surprise.  Teachers, contrary to their rhetoric, are people, and there will be an occasional act that defies reason and propriety. 

And that’s why there are multiple layers of adults who come into play before any one nutjob teacher can cause too much damage.  At any point in the process, it would have ended had any of the many public employees demonstrated a modicum of thought.  This story might never have happened, spread about the school, city, country or internet.  The kid might have lost his sharpie and been sternly admonished to never bring a sharpie to school again.  Desks in Oklahoma could breath a sigh of relief, never to be bled upon again.

Was this the product of a string of idiots?  Perhaps every person involved suffered from some transitory psychosis, or pervasive lapse in basic reasoning ability?  Or was the the result of teachers, administrators and cops putting the interests, maybe the self-esteem, of their brethren public employee above their duty and the welfare of a 13 year old kid?

That this sharpie-wielder didn’t commit a crime makes the story that much more poignant, but that this child in Oklahoma City was subjected to arrest and custody and not a single thoughtful, sane, rational adult stopped this insanity before it reached the point of abject absurdity can’t be easily explained away.  Sure mistakes happen, but not like this.  And not to kids. 

“If you’re in jail, thank a teacher.”  Not quite the platitude one expects.

One can never be sure what you’re going to get when you buy a pig in a poke.  Or support a candidate for district attorney.  I supported Cy Vance.  So how’s he doing (with apologies to Ed Koch)?

From the Daily News :

After year in office, Manhattan District Attorney Cy Vance Jr. is coming in for some criticism from defense lawyers.

He’s too tough, they say.

Tougher than his legendary predecessor.

Not that he’s going to disagree.

“Yeah, we are,” Vance said of his office stiffening the terms of plea deals offered to criminal defendants.

Before running for Morgy’s old seat, Cy was a criminal defense lawyer.  Not quite of the trenches, but still he sat at the table furthest from the jury box.  The challenge was that he was painted as a criminal sympathizer who would turn the Manhattan District Attorney’s office into some get-out-of-jail-free zone.  Never having had such an expectation, I have no disappointment that it hasn’t worked out that way.

The problem that some defense lawyers are having is that the office has gotten tougher on plea offers, particularly for misdemeanors.  This makes it far harder to cut a deal, with defendants disinclined to do time because, well, they just don’t want to. 

More significantly, the harder stance on offers makes it a whole lot harder for criminal defense lawyers to make quick money.  It used to be that the volume practitioners, who would talk a good fight up front, take whatever the defendant had in his pocket, and plead them out as fast as they could, had a good gig going.  After all, defendants wouldn’t realize that the $5000 fee only bought them a quick plea, and the deal to probation didn’t seem to be a problem until they realized its implications for immigration or state prison time on their next bust.  They’re easy to lie to.

Harsher plea offers screw up the works.  Suddenly, those low rent fees aren’t sufficient to cover the cost of a real defense, at least for those lawyers who are capable of mounting a real defense.  When defendants are offered jail or prison, rather than the probation that their lawyers anticipated, and refuse to take it, the quick and dirty defense no longer works.  Bummer.

Vance says his main goal is to lower historically low crime rates. He’s going after guns and knife violence – but also zeroing in on the repeat misdemeanor offenders who drive it up.

One approach is to make sure the most serious nonfelonies are properly handled – and to do that, he needs to tackle a massive backlog of more than 10,000 pending cases in the lower courts, he said.

There is a tipping point between being appropriately tough and bogging down the system so badly that it collapses under its own weight.  While Cy’s office may not be particularly lenient, it similarly can’t be so harsh or inflexible that its demand are unfair, improper or unworkable.  For the time being, crime is at such historic lows that he can pretty much get away with anything.  The days of 20,000 indictments are year are over, and they can’t even make 5000 indictments anymore.  That leaves plenty of resources available to screw with petty offenses and “get tough on recidivism” talk.  Should demographics reverse the situation, such plans may turn out unworkable overnight.

In the meantime, the shift from big case focus that characterized Robert Morgenthau’s tenure to misdemeanor recidivism has to be viewed from the perspective of citizen as well as lawyer.  We exist in the city too, and for the most part enjoy the ability to walk down the street without being the victim of crime, small or large.  As lawyers, some may wish to enjoy the pliancy of a prosecutor who will give us that great deal that lets us out of the case in flash, as long as the fees is paid.  As people, we want to be able to make it home with that fee without being held up.

Is Cy Vance too harsh on plea offers?  I can’t say.  My practice isn’t based on volume, and I never enter into a case with the expectation that it will end with a plea.  The answer will ultimately come from the number of trials generated by defendants refusing plea offers, and the ability of the system to accommodate them. 

“We’re indicting many more misdemeanor cases,” said Vance of a push to get the worst cases before felony judges whose dockets are less crowded.

Vance tried giving assistant prosecutors who handled only felonies some lower-level cases to free up younger prosecutors for trial. The result: A 10% drop in the number of cases that are dismissed, including a 58% drop in drunken-driving cases tossed, Vance said.

But fewer dismissals – and a 129% jump in the number of trials – means the backlog is worse.

What will be curious is how the judges will adjust their determinations on what have sadly become routine denials of motions to address the burden of trials down the road.  When the expectation shifts from a denial leading to a plea, instead turning into another trial, the judges might suddenly find it advantageous to start taking motions seriously and tossing the garbage prosecutions that have traditionally been ignored. 

If it turns out that the offers are too harsh, and the judges let any garbage case go, then we’ll end up with another crisis in the courts, and cases dismissed under speedy trial and streets filled with recidivist misdemeanant.  One way or the other, the lack of reasonableness will bear out.

Until then, it’s understandable that a prosecutor hasn’t pleased every defendant or lawyer who has come before one of his assistants.  No doubt some are right to argue that offers are too harsh and unfair.  It’s inevitable. 

The question remains whether Cy still remembers that it’s ultimately not about numbers, but about people.  From his District Attorney perspective, those people include the ones walking around the city who don’t want to be the victims of crime as well as the ones sitting in the hallway of 100 Centre Street.  While he clearly isn’t the self-aggrandizing, deceitful, manipulative, grandstanding prosecutor that New York City endured under Rudy Giuliani’s reign of terror, he’s still got a ways to go to show that he can fill Morgy’s shoes.

Via  Orin Kerr and John Wesley Hall, a California Court of Appeals held that night vision goggles are a constitutionally acceptable means of seeing what you couldn’t otherwise see. in People v. Lieng.  In so doing, they distinguished nogs (that’s the cool thing to call night vision goggles) from thermal imaging, prohibited without a warrant in Kyllo v. United States.

The court explained its primary justification for concluding that use of nogs doesn’t constitute a search:

Kyllo is inapplicable to this case. First, night goggles are commonly used by the military, police and border patrol, and they are available to the general public via Internet sales. (U.S. v. Vela (W.D.Tex. 2005) 486 F.Supp.2d 587, 590.) More economical night vision goggles are available at sporting goods stores. (Ibid.) Therefore, unlike thermal imaging devices, night vision goggles are available for general public use.

Second, state and federal courts addressing the use of night vision goggles since Kyllo have discussed the significant technological differences between the thermal imaging device used in Kyllo, and night vision goggles. (See, e.g., People v. Deutsch (1996) 44 Cal.App.4th 1224, 1228, fn. 1; U.S. v. Dellas, supra, 355 F.Supp.2d at p. 1107; U.S. v. Vela, supra, 486 F.Supp.2d at p. 590.) Night vision goggles do not penetrate walls, detect something that would otherwise be invisible, or provide information that would otherwise require physical intrusion. (U.S. v. Vela, supra, at p. 590.) The goggles merely amplify ambient light to see something that is already exposed to public view. (Ibid.) This type of technology is no more “intrusive” than binoculars or flashlights, and courts have routinely approved the use of flashlights and binoculars by law enforcement officials.

One of the mysteries of the law is how to value the loss of a body part.  It seems that the public assumes there’s a chart somewhere that puts a price tag on a limb, a finger, an ear.  The notion that a bunch of people are expected to sit in a room and, with no greater help than a couple of lawyers telling them that it’s the most/least consequential thing in the world, arrive at a number seems crazy.  And yet, that’s how it happens.

Via Eric Turkewitz at his ever-excellent New York Personal Injury Law Blog, and John Hochfelder’s very thorough  New York Injury Cases Blog, a 32-year-old single woman lost a breast to a modified radical mastectomy.  Except she didn’t have cancer.  Oops. Sorry. The jury was asked to value her loss.

 A Bronx jury found malpractice and awarded her $3 million for past pain and suffering and $3.5 million for future pain and suffering extending over 41.9 years.

The trial judge then directed a new trial as to damages unless the plaintiff stipulated to a reduced total award of $1 million.

And a divided panel agreed with the trial judge and set the limit for such a case at $1M. There was a furious dissent by Judge James Catterson, who agreed that while the verdict was excessive, also believed that the $1 million award substantially undervalued the emotional trauma of such an incident to a 32-year-old single woman.

Why the dispute? Because in the words of the majority:

The dissent’s suggestion that plaintiff must have suffered extreme emotional distress is not supported by the record.

Not supported by the record? There was no question that the woman lost her breast unnecessarily. The jury saw photographs. Some injuries are abundantly obvious. And yet, the majority simply accepted the defendants’ argument that there is no proof of future pain and suffering because the plaintiff did not testify extensively about her emotional distress. In other words, if you don’t state the obvious, the court will toss your verdict.

No doubt lawyers who do personal injury day in and day out are inured to the whims of judges screwing with their awards.  And it’s not hard to appreciate why judges need to rein in the jury that awards $10 billion for a broken finger nail. 

But this case not only smacks of micromanaging verdicts, but requiring plaintiffs to go nuts in creating a record of the obvious.  Is there any question about how the needless loss of a breast to a young, single woman will affect her emotionally?

In dissent, Justice Catterson wrote:

I agree with Ms. Williams that in reducing the jury verdict, the court undervalued the profound emotional and psychological damage arising from the loss of a healthy breast and the resultant severe disfigurement of her upper and lower torso, photographs of which are included in the record.

Profound? You bet.  So what exactly would the majority have demanded of her in the record to “prove” she suffered “extreme emotional distress”?  Is it possible they are that unfamiliar with boobs?

It’s common in personal injury cases that plaintiffs lawyers explain the obvious, that a person can no longer engage in normal activities as a result of an injury.  They will go through a litany of questions about the things the plaintiff will never again do in order to help the jury to appreciate the loss.  When it involves loss of consortium, they may put a spouse on the stand to humiliate himself by explaining in embarrassing detail the sex life he will never again enjoy.

But here, the record was sufficient for a jury to award $6.5 million dollars for the loss.  The jury understood what it meant to the plaintiff to lose a breast.  Everyone understands what this means.  Unless you’re a judge.

Moreover, the majority’s view that the plaintiff’s extreme emotional distress is not supported by the record clearly indicates that the majority has not viewed the photos in the record. Given the post-operative photos of the plaintiff, I believe any testimony by the plaintiff as to distress, for example, over not being able to wear a bathing suit; or of her fears of never finding someone to love or desire her would be simply superfluous, if not overkill.

My take is that the appeals court’s reduction of the award had nothing to do with the record, and everything to do with the majority deciding that 1 breast = $1 million.  They have to provide a rationale for their decision, though it doesn’t have to bear up to scrutiny.  Do these guys really think they have a firmer grasp on the significance of this loss to the plaintiff than the jury?  Even if one thinks the jury award was outside the realm of reality, was this monumental reduction justified?

Only if there’s a chart somewhere that says how much a breast is worth to a young, single woman.  What’s the value of a justifiable fear that she will never find love?  It’s got to be on the chart, somewhere.

For anyone who contends that the system is out of control, that jury awards are astronomical and it’s just one big lottery, ask yourself (or your significant other) what it would be worth to lose a breast to some surgeon’s monumental screw up.  I wonder if the thought passed through the majority’s head as they decided that it wasn’t worth much.

What’s the difference between Julian Assange and the United States of America?  One is a person and the other is fictional entity that exists only because of the acceptance of its citizens.  Roger Alford, a law professor at Pepperdine Law School, probably knows this, but if so, you couldn’t tell from his post at Opinio Juris.

Alford plays a trick on readers, juxtaposing a quote from his lawyers about the disclosure of statements in the Swedish case against him with quotes from Julian Assange about the purposes and methods of Wikileaks.  There is neither commentary nor discussion, but he posts this under a title that makes Alford’s point clear: Assange is a hypocrite.

At the Trial Warrior, Antonin Pribetic thoroughly, completely and irrefutably dissects the absurdity of Alford’s attack.

A false analogy does not a hypocrite make. The proper analogy is not between Wikileaks and Assange, but rather Wikileaks and the Swedish prosecutor’s office:

If some system A (Wikileaks) has some function X (transparency) and also some function Y (upholding the rule of law), and some system B (Swedish prosecutor’s office) has a function X′ corresponding to A’s (Wikileaks)  function X (transparency), then the system B should also have a function Y′ , that is analogous to A’s function Y (upholding the rule of law).

There is a fundamental difference between Wikileaks publishing military secrets obtained from a third party and Assange’s lawyers objecting to disclosure of the unredacted (and untranslated) excerpts of the sexual assault complaints to the media. This is particularly egregious in light of the fact that  Assange has not yet been formally charged in either Sweden or the U.K., while out on bail awaiting his extradition hearing.

Whether Assange is saint or sinner, and reasonable people may differ on that question, there can be no question about whether there is a societal interest in smearing an individual in any way relevant to disclosing governmental secrets.

The mechanics are no different than the routine reaction of the cops when they inadvertently gun down some poor schmuck on the street, and immediately run him to dredge up any wrong, real or imagined, in his past so that they can craft a lede about what a hideous human being he was, thus diminishing his worth to society and their culpability in his killing.  It plays well in Peoria.  Apparently, at Pepperdine as well.

It is unacceptable, however, to have a law professor engage in such a facially fallacious attack.  He can think that Wikileaks is a horror, a terrible thing and a blight upon the Nation.  He can hate Assange for founding Wikileaks.  He can believe that this is the sort of conduct that makes it impossible for an exceptional country to conduct its business on behalf of Mom and apple pie.

What he cannot do is proffer a false comparison between the secrets of a government and confidences of an individual subject to prosecution.  It legally unfair.  More importantly, it’s intellectually dishonest.

In response to comments to his post, Alford fleshes out his position.

If Julian Assange were not a hypocrite, he would welcome this transparency, even though his own reputation is severely damaged.  Of course, Assange has publicly endorsed government leaks at the cost of harm to others’ reputation–that’s just, in his words, “collateral damage.”  As Assange told the New Yorker :

“[S]ome leaks risked harming innocent people—’collateral damage, if you will’—but that he could not weigh the importance of every detail in every document…. by releasing the information he would allow judgment to occur in the open.”

Apparently the loss of reputation is fine in the pursuit of total transparency, unless it is his own.

Under my best case scenario, Alford may be intellectually dishonest, but at least he knows it.  His attempt to defend his position, however, takes that possibility off the table.  The argument attempts to equate government transparency with individual transparency, and Alford inserts the word “total” before transparency in order to manufacture his strawman.  This is too obvious, and too cheap, to ignore.  Nobody makes such a flagrantly shabby argument unless they really believe it to be valid.

Alford has revealed far more about himself than about Assange in his post.  In fact, he’s revealed nothing about Assange at all.  But he has brought his own ability to reason into question.  When levying a charge of hypocrisy, one should be awfully damn clear that there is merit to the claim and it can be supported.  It need not be a perfect argument, or above reproach, but it clearly has to be sound.

It’s rare for a lawprof to go so far out on a limb as to call a person a hypocrite.  They usually resort to their customary lingo, such as saying Assange is a less than admirable fellow, which is the lawprof equivalent of saying his the scum of the earth.  Perhaps this is saved for responses to their fellow members of the Academy, so they won’t have to cross swords when the meet in the hallways.  But Alford has come out swinging, call in Assange a hypocrite in his direct, frontal assault.  Having done so, he bears the consequences.

There is nothing in Alford’s post that supports the proposition that personal transparency and governmental transparency are, or should be, the same.  There is nothing to suggest that Julian Assange is a hypocrite.  There is, however, much to suggest that Alford lacks the intellectual capacity to be allowed to teach students how to think like lawyers, or to be capable of distinguishing between sound arguments are logical fallacies.

Alford’s academic credibility is “breaking like the waves at Malibu.” Is that okay with Pepperdine?

Adam Liptak’s  New York Times article about the Roberts Court’s philosophical embrace of business interests allows for a tangent into the world of the Supreme Court bar, those “specialized” lawyers whose practice revolves around arguing before the Big Bench.

The Roberts court’s engagement with business issues has risen along with the emergence of a breed of lawyers specializing in Supreme Court advocacy, many of them veterans of the United States solicitor general’s office, which represents the federal government in the court.

These specialists have been extraordinarily successful, both in persuading the court to hear business cases and to rule in favor of their clients.

Over at Volokh Conspiracy, Orin Kerr runs with this aspect of the article, offering his “pet theory”:

My pet theory attributes the creation of the specialized Supreme Court bar to the increase in the number of law clerks each Justice hires. Back in the 1930s, each Justice typically would hire one clerk. That number went up to two by the 1950s, then three around 1970, and then four by the 1980s. Since the 1980s, the Justices have “graduated” about three dozen former clerks a year — with the exact number depending on whether individual Justices hire their full complement of clerks, as well as whether there are retired Justices around still hiring.

The increase in the number of clerks led to a crew of young lawyers entering private practice every year who happen to have great expertise in how the Supreme Court works. The Supreme Court can be a quirky institution, and these young lawyers knew the quirks. If you say that 2/3 of former clerks went into private practice, that’s around 25 new lawyers a year. Many of those former clerks naturally were interested in Supreme Court work, so they started to focus on Supreme Court work and helped permit and foster appellate practices focused on Supreme Court litigation. With enough former clerks around, there were lots of lawyers who could help create dedicated Supreme Court practices that amounted to a dedicated Supreme Court bar.

What remains unexplained is why these SCOTUS grads chose to use their insider knowledge for the benefit of business interests rather than, say, the public good. 

Historically, former Supreme Court clerks went on to more lofty pursuits, the bench and academia.  Given their educational background, top of the class from the most elite schools, it was a natural transition.  While they had to pay some dues beforehand, and maybe even repay some loans, the end game was to put their experience to use for the betterment of all.  Or at least, for what they perceived to be betterment, but that’s a discussion for another day.

So why the conversion from more intellectual pursuits to a fraternity of Supreme Court specialists?

Even smart kids want to drive fancy cars.

The gist of Liptak’s articles is that one of the most powerful forces driving cert petitions and argument before the Supreme Court comes straight from the board rooms of Americas major corporations:

But the chamber’s mission is by no means limited to the elected branches of government. “A central function of the chamber,” it told the Supreme Court in a recent brief, “is to represent the interests of its members in important matters before the courts.”

The vehicle for that is the litigation unit that was envisioned by Mr. Powell, the National Chamber Litigation Center, which says it is “the voice of business in the courts on issues of national concern to the business community.”

This isn’t your father’s Chamber of Commerce.  This is big money litigation.  Huge money litigation.  And its being used to buy the hearts and minds, not to mention the brains and balls, of these one-time Supreme Court insiders.  Knowing how to frame a cert petition to appeal to the particular personalities on the bench is worth a great deal to this Chamber.  This chamber wants to get its say in that chamber, and it will pay for the privilege.

Being an unrepentant capitalist, there’s little to fault in the choice of former clerks making the decision to go for the money, to capitalize on their experience and monetize their insider info.  It may be crass to think that such fine minds care only for the cash, but it’s certainly an understandable choice.

The downside, of course, is that the scales are way out of balance.  While the National Chamber Litigation Center contends that it’s merely a credible voice for business, which may well be true, it leaves open the question of who is the credible voice for opposing positions?

When the balance of power becomes so skewed, one has to question whether the integrity of the Court is in jeopardy.  As Liptak notes, it’s not as if the Court is resistant to business interests.

The idea that the Supreme Court reflexively rules for the chamber and other business interests is too simplistic, many legal scholars and practitioners say. If the court favors business, they say, it is as part of a broader orientation toward free markets and a wariness of many kinds of lawsuits.

But given the Supreme’s orientation in favor of business, the need for strong opposition, a worthy challenge to the Court’s inclination to favor business interests, becomes increasingly important.  Unfortunately, the loyal opposition doesn’t always have the money or firepower to give it the ability to mount a valiant effort.

There was once a time when concerns for society trumped a job that paid extremely well.  That was before greed was good; that was before amorphous libertarian philosophies allowed those who preferred bespoke suits and fast cars to social justice in any of its permutations.  Not that there’s anything wrong with bespoke suits and fast cars.  I wonder if  Bill Gates’ Porsche 959 is still sitting on a dock in Seattle?

Just as Gates has moved from the accumulation phase of his life to the point where he uses his wealth to help others, perhaps this trend of insiders going for the gold will reach a saturation point, where they will have enough money and use their insider knowledge for purposes other than a cash bonus.

It may be that business interests will always prevail with a court inclined to favor them, but there needs to be a balance of power, where both sides have both access to the Supreme Court and credibility, if its decisions are to be worthy of credit and serve broader societal interests.  A bunch of kids being well paid by business interests isn’t a very good way to run a branch of government.

When  Turk first alerted me to Leo Flynn’s defense, my reaction was “feh.”  The 62 year old lawyer was going on trial for having downloaded child porn.  His defense was an old one, that he wasn’t looking at it for his own benefit, but on behalf of a client. 

Leo Flynn, 62, does not fit the profile of someone who possesses and distributes child pornography, federal jurors were told today, the first day of the trial. He didn’t compile a huge collection of photo and video files, and he viewed pornography only on his work computer, never at home.

Yet, he admitted to investigators that he was searching the Internet and the file-sharing service Limewire for hardcore child pornography about once a week…

It’s unclear what that means.  Are men who view kiddie porn supposed to wear tattered clothing and drool?  Does that cover priests as well.  And how many pics and vids of hardcore kiddie porn does one have to collect before it counts?

Flynn’s defense was facile.  It was just research.

Flynn told investigators at least two clients had asked his advice about child pornography, and he sought out the material on his own so he could offer an informed opinion. They asked him why he went back to Limewire and child pornography websites so frequently.

“I can’t answer that other than to say I just started looking and watching and looking and watching and finding different things and being surprised,” he answered.

Clients have asked me for advice about kiddie porn.  Miraculously, I’ve managed to advise them well without weekly scanning the internet and amassing any collection, huge or otherwise, of hardcore images.  I grasp the concept.  I don’t need to see the images.  There is absolutely nothing about the images that would affect or alter my advice.

The trial is over.  Leo Flynn prevailed.

Flynn’s lawyer, Rory Durkin, convinced the jury that each time Flynn downloaded the illegal images and videos, he was doing so in order to provide legal advice to clients.

Flynn’s lawyer friends used to call him the “perv attorney” because he defended a lot of people accused of sex crimes.

Flynn will now return to the practice of law.

In defending a client against possession of a particular image, it’s critical to be able to see the image in question.  Whether it makes the lawyer wretch in disgust or drool with erotic glee is another matter, but one cannot defend a person without knowing what he’s defending against.  That wasn’t the case here.

Flynn was surfing the ‘net, and a regular at Limewire, in search of images that were not the subject of client indictments.  Had it been otherwise, the images would have been part of discovery, not a matter of seeking them out on his own.  Moreover, his explanation was about giving “advise,” not defending charges.  I can only speculate about what advice was sought that could in any way explain the need to surf Limewire, but none of it seems reasonable or acceptable.

And yet Leo Flynn was acquitted. 

Sadly, there are many out there who argue the point of whether kiddie porn should be legal and acceptable.  People should be free to do whatever pleases them, no matter his sick and disgusting.  That it happens to involve adults engaging in sex acts on children doesn’t seem to enter into the equation.  “Maybe they consented,” they say.  Spare me.

The knee-jerk reaction of criminal defense lawyers to an acquittal is to hoot and holler.  They are too few to do otherwise.  But not all acquittals leave the same taste in one’s mouth.  This one is sour.  It’s not up to me to question the bona fides of the defense, as a Sioux Falls jury accepted it.  I accept their verdict.

But the question still lingers, is it appropriate for a lawyer to take it upon himself to “research” child pornography in order to advise clients?  Is it necessary to do so on his own, week after week, to go surfing the web, file-sharing sites, and download such images to his computer?  No one can truly see into another person’s mind and soul, but there has to be limits to participating in such conduct. 

Leo Flynn will return to the practice of law.  He now has a far clearer understanding of what it’s like to sit in the defendant’s seat, to await the verdict of a jury, to wonder whether a minute from now, his life as he knows it will be over or he will allowed to walk out of the courtroom a free man.  There’s much to be said about a lawyer who can appreciate what his clients endure.

But Leo Flynn chose to research kiddie porn by viewing and downloading images, week after week.  I don’t care to meet him for a drink or have him over for dinner.  He may not be guilty, but I don’t believe he’s innocent.

Clients take too long to get to the substance of their question,  Lawyers take too long to get to the answer.  For eons, we thought it was all about nuance and details, a firm grasp of the necessary facts and a thorough response addressing the potential variations, possibilities and their respective probabilities.

Few things have better characterized a changing mindset than this: TwitterLaw.  Forget the nuance. Forget the details.  Forget the corner office with the leather Chesterfield sofa. Cut to the chase.  Get your question down to 140 characters and get an answer in kind.

Over at Legal Blog Watch, Bruce Carton picked up on Simon Fodden’s  Slaw post decrying the advent of a British firm offering legal advice by twit:

Good grief: it’s the (I should have expected it) reductio ad absurdum of legal advice. Until now, the briefest piece of wise legal counsel was “It depends.” Now a UK lawyer is offering free advice in 140 characters, which, though longer than that gold standard, doesn’t seem wiser.

A smiling man styled only as The Legal Oracle (@thelegaloracle) is offering on Twitter:

Tweet your legal claim or question and we will answer it free of charge. Taking the fear and mystery away and making law accessible.

Speaking of “fear and mystery”, who in his or her right mind would take legal advice from an unnamed person in 140 characters?

Someone who wants a quick and dirty answer to a legal question and either can’t or won’t pay for it?

Carton, the illegitimate offspring of Bud Abbott (along with his young sidekick, Eric Lippman), suggests that this turn of events would make me swoon.  Not so fast, Carton.  While silly and pretentious, this quirk in the space/time continuum is the brainchild of Loyalty Law, a shameless, self-promoting UK legal marketer.  They don’t call them solicitors for nothing, you know.

But the @thelegaloracle concept, crazy as it seems, has some things that many of the other faux free legal answer concepts lack.  First, it’s short and to the point.  While that’s considered a flaw by many, it’s no worse a flaw than something like Avvo Answers, where a person uses as many characters as he wants to ask a legal question, typically providing tons of fluff or self-serving excuses to spin the answer received, and still asking the wrong question in the wrong way to get a meaningful answer.

Then the question is answered by people neither more qualified nor substantively capable of providing a correct answer, the twitter guy.  None of these ideas are a substitute for a proper consultation, and none of these answers provide greater reliability or merit.  At least Twitter Law is quick and dirty.  Better to be wrong in 140 characters than 3000 words.

The UK lawyer doing yeoman duty, Nicholas Jervis, hasn’t gotten a lot of question as yet. but the few I’ve seen are pretty basic and his answers are similarly basic.  They’re also quick, free and clear.  The beauty seems to be that it’s hard to ask a convoluted, overwrought, deeply personal question via twitter.  The medium just doesn’t offer much depth, such that the questions are sufficiently simple to allow for a simple answer in response.

This is way better than the free legal advice promoted elsewhere, where it’s suggested that they are a real substitute for actual legal advice.  They’re not.  They’re awful.  They’re dangerous, as people actually think they’ve been given a reliable answer to complex legal problems.  On twitter, it’s all superficial, and that seems to work.

For example,  one question (copied in the Slaw post) had to do with the statute of limitations for negligence, to which Jervis responded :

Hi Katie, 3 years is the norm, more if you/the victim is under 18 at the time of the accident or not of full capacity.

Where’s the problem?  No doubt there are questions that can’t be answered within the constraints of twitter, and even less doubt that some questions will be poorly framed and thus poorly answered.  So what?  Unlike those free legal answer sites which pretend to be a substitute for real advice, no one can possibly believe that a twit is a substitute for a lawyer.

It is what it is, and what it isn’t is reliable, personalized legal advice.  But then, it’s not supposed to be.  It’s just the next step in legal marketing as we slip/slide down the slope to the gutter.  But as far as lawyers strutting around in hot pants goes, Jervis is kinda cute.

On the other hand, given the attention span of the twitter audience, combined with the depth of thought, few concepts are better suited to the needs of modern iPad users. 

In fact, I see this as the precursor to private binding arbitration via twitter, with each side getting 10 twits to make their case. twitpics to show their evidence and a decision within minutes and paypal to deliver the award second later.  Though brevity is the soul of wit, there’s nothing funny about this idea. Is this any less reliable a means of resolving disputes than our legal system? Think about it. 

During the quiet period between Julian Assange’s release on ridiculously high bail and his resting comfortably between television appearances to explain why he didn’t commit espionage against somebody else’s country, it seemed like a good time to take stock of the international diplomatic community.

They don’t want to be embarrassed again.

In the old world, some mush-mouthed United States Senator, say Joe Lieberman, would whine about he we needed a law to stop another Wikileaks fiasco from undermining our foreign policy and putting Americans at risk.  Do it for the children, he might say, though nobody could quite figure out what this had to do with children. 

But in the new, flat world, that’s not good enough.  As we’ve learned from Assange, an Aussie operating out of Sweden without a condom, revealing American diplomatic cables that call Ruskies Robin, not even Lieberman can fix the problem in the Senate.  There’s a big hole in the roof of international diplomacy, and it’s getting governments all wet. It must be patched.

In steps the roof repairman.

The United Nations is considering whether to set up an inter-governmental working group to harmonise global efforts by policy makers to regulate the internet.

Establishment of such a group has the backing of several countries, spearheaded by Brazil.

At a meeting in New York on Wednesday, representatives from Brazil called for an international body made up of Government representatives that would attempt to create global standards for policing the internet – specifically in reaction to challenges such as WikiLeaks.

The internet is certainly a flat world issue, unfixable by any particular country alone.  Sure, we can criminalize pretty much anything in order to keep some kid in New Jersey from upsetting world order, but when it comes to Aussies working out of Sweden, it’s not as easy.

CrunchGear feels threatened.

All of this went down on Wednesday, with Brazil’s UN delegation proposing “global standards” that would, in effect, regulate the Internet.

The proposal in the obtuse verbiage of the UN would:

convene open and inclusive consultations involving all Member States and all other stakeholders with a view to assisting the process towards enhanced cooperation in order to enable Governments on an equal footing to carry out their roles and responsibilities in respect of international public policy issues pertaining to the Internet but not of the day-to-day technical and operational matters that do not impact upon those issues.

No reason to get too wrapped up in the nuance of meaningless words.  After all,

The Brazilian delegate stressed, however, that this should not be seen as a call for a “takeover” of the internet.

I’ve little doubt that this is true.  The internet is greatest relief valve ever created.  If we didn’t have an internet, where people like me could write about problems with the legal system, they would have to invent it.  If I were in charge of public catharsis for the government, I would make sure that every person had the ability to tap our words on a keyboard and write out all the things that were problematic and frustrating.  Yes, that’s it.  Let it all out.

Sure, writing posts on a blawg, like this, is fun for the blawger, and maybe it’s turned a few heads along the way.  But the reach is limited, and it’s mostly preaching to the choir.  The substance is largely about long-known problems, and reveals little.  More significantly, to the extent that it illuminates anything, it’s diluted by the multitude of crap flowing onto the internet every second, whether marketing or overwrought emotionalism that panders to children and nutjobs. 

The internet keeps the nuts off the street, where they could do some harm.

But Wikileaks, on the other hand, has the stuff that only the real insiders know.  And don’t want anyone else to know.  We can post about, argue about, rant about, rave about the stuff of cops shooting people over nothing all day long.  That can’t be kept secret anyway.

Real secrets are another matter.  Where’s the Trilateral Commission when you need it? 

CrunchGear fears that they will pull the plug on social miscreants on the internet.

We’re all old cowboys in the Wild West, and we can see a train approaching in the distance. “What’s that thing, an iron horse? Eh, I’m sure my way of life won’t be affected one bit.” (Yes, that’s a Ron Bennington line.)

Sure it won’t.

It’s going to be fun in the future telling kids that we remember a time when you didn’t have to get a license to use the Internet, or that anyone and everyone was allowed to communicate online, even if they were anti-social miscreants.

This fear is misplaced.  They want anti-social miscreants online.  It keeps them off the streets. 

The governments of the world aren’t afraid of the mouths that roar or the children who write mean things about other children.  They are concerned, however, that the notes they pass around the room, intended for their own eyes only, become public.  That would impair their ability to do the important work of running our world, a job too difficult and involved for us to know about or appreciate.  If we possessed this information, we would be too stupid to realize why they do what they must do. It requires the paternalism of government to recognize the hard decisions, incisive characterizations, secret stuff between very important people, necessary to keep our world from imploding or exploding. 

If we only knew.  But we can’t.  We can, however, write anything else we want that will allow us to get all the angry things that might otherwise cause government aggravation out of our heads and onto our webpages. 

Just not their secrets.  There’s a hole in roof at the United Nations, and they’re going to fix it.  Don’t worry.  It won’t really do much to our use of the internet, but once it’s patched, government’s won’t have to worry about getting all wet again.