It struck me that it would be wrong to form an opinion about the latest Wikileaks debacle without having the slightest clue what the content really offered.  Others rushed to support it.  Others rushed to condemn it. 

My Congressman, Peter King, called for blood.  That’s why we like him, he’s very predictable.  Just don’t get too close when he’s on a roll, or you’ll get a shower.  Besides, it’s not like you can’t guess what he’s got to say, so there’s no particular reason to pay attention to him.  Reporters usually just reprint former statements and change the names.  It saves on shoeleather.

I suspect that nothing in the Wikileaks dump is either new or surprising to anyone involved in the game.  Countries are afraid of other countries with bombs?  No kidding.  People don’t trust each other, and don’t always say nice things about each other behind their back?  Surprise, children.  This happens.  Bigtime politicians and diplomats are aware of this happening.  They won’t suddenly hate us and shoot our soldiers because of it.

Did the dump compromise world affairs, or, as my guy King says, put “American lives at risk all over the world.”  Nah.  This was low-level stuff, sniping nonsense.  A “secret” classification covers the luncheon menu.  Dinner rates “top secret,” and you’ll never know about the midnight snack.

Like many of my “ilk,” I’m concerned that there are zealots in our government planning and executing nefarious, anti-American activities under cover of darkness.  There’s no doubt that this goes on, and that we may never know what our government is doing with the power we’ve bestowed upon it.  There’s no doubt, at least to me, that some of these things are terribly wrong, from torture to rendition to the mundane violation of constitutional rights in the cause of some zealot’s bizarre vision of freedom.

Is government, a creature that putatively exists to serve the citizenry, entitled to maintain a secret existence that defies its authority and legitimacy?  To those who believe they have a higher calling, a clearer vision, than the stupid groundlings like me, the answer is “absolutely.”  To those disinclined to give the government free rein to do all the nasty work behind the scenes that some Cheney wannabe deems necessary, this is our nightmare.

And yet, it’s naive and counterproductive to believe that every word, thought, idea transmitted between the people who are charged with doing the work of government should be seen by all.  There must be freedom to say things privately that wouldn’t be diplomatically palatable publicly.  To express honest thoughts between people on the same side is necessary, and to contend otherwise is childish. 

The problem is distinguishing between things that are kept secret because they are wrong and those engaged in wrongful conduct are hiding them from the public, and things that are merely routine communications that express ideas best undisclosed. 

Julian Assange isn’t qualified to make that call, and lays no such claim.  He provides the forum, while others provide the content.  My guy King’s call to treat him as a criminal is not merely the silliness one expects from the our little bulldog, but misdirection.  It’s much easier to point the finger of blame at Assange than clean up the mess of three million people with clearance to access documents classified as “secret,” or even find out which of those millions was the leaker.

Assange is neither hero nor villain.  Wikileaks is only as significant as the value of its contents at any given moment.  As WindyPundit put it,

Then there’s WikiLeaks itself. Their About page professes all kinds of high-sounding motives, promising to reveal truths that evil people want hidden. It includes a list of stories they’ve broken, some of which sound pretty interesting.

Forget the social media gurus who blow kisses to lawyers on twitter, and learn from Vitaly Borker.  So you want to make it to the top of Google and be the “go-to” guy on the internet?  All it takes is a few threats and some well-placed cheating. 

From the New York Times, Clarabelle Rodriguez wanted to buy some designer eyeglasses and contacts, so she Googled.

In moments, she found the perfect frames — made by a French company called Lafont — on a Web site that looked snazzy and stood at the top of the search results. Not the tippy-top, where the paid ads are found, but under those, on Google’s version of the gold-medal podium, where the most relevant and popular site is displayed.

The next day, a man named Tony Russo called to say that DecorMyEyes had run out of the Ciba Visions. Pick another brand, he advised a little brusquely.

“I told him that I didn’t want another brand,” recalls Ms. Rodriguez, who lives in the Chelsea neighborhood of Manhattan. “And I asked for a refund. He got rude, really obnoxious. ‘What’s the big deal? Choose another brand!’ ”

“I’m going to contact my credit card company,” she told him, “and dispute the charge.”

Until that moment, Mr. Russo was merely ornery. Now he erupted.

“Listen, bitch,” he fumed, according to Ms. Rodriguez. “I know your address. I’m one bridge over” — a reference, it turned out, to the company’s office in Brooklyn. Then, she said, he threatened to find her and commit an act of sexual violence too graphic to describe in a newspaper.

Enough of the fun stuff.  The article is long, and Russo, one of many names used by Borker along with “Stanley Bolds,” only became increasingly unpleasant and dishonest, including canceling her credit card dispute by pretending to be Rodriguez (nice job, Citibank).  But the point is that Borker figured something out.

Today, when reading the dozens of comments about DecorMyEyes, it is hard to decide which one conveys the most outrage. It is easy, though, to choose the most outrageous. It was written by Mr. Russo/Bolds/Borker himself.

“Hello, My name is Stanley with DecorMyEyes.com,” the post began. “I just wanted to let you guys know that the more replies you people post, the more business and the more hits and sales I get. My goal is NEGATIVE advertisement.”

It’s all part of a sales strategy, he said. Online chatter about DecorMyEyes, even furious online chatter, pushed the site higher in Google search results, which led to greater sales. He closed with a sardonic expression of gratitude: “I never had the amount of traffic I have now since my 1st complaint. I am in heaven.”

Google fails to distinguish the website with a massive number of legitimate links that are negative from those that are positive, making the best and worst equivalent in Google’s “eyes.”  Can’t distinguish yourself based on competence or skill?  Then just lie, cheat and steal enough to outrage everyone you touch and you too can be a winner.

Most people function from a perspective of relative good will.  We assume others are reasonably honest and legitimate in their transactions.  We give them the benefit of the doubt.  In most instances, it’s a sound practice.  But as gaming Google, distinguishing oneself from the ever-growing mass of shouting “buy me” and “hire me” on the internet makes it increasingly difficult to find a way to stand out, efforts become more extreme. 

Even marketers, provided they are being honest with themselves, have come to the realization that they are just producing noise.  From Seth Godin :

I was talking to a colleague about all the noise out there in the world, all the messages, ads, announcements, pitches and friend requests. “And you’re sending even more every day into that maelstrom.”

“No we’re not,” she said. “Ours isn’t noise.”

Yes it is.

Lawyer websites are no better.  Honest websites do little to entice the unsuspecting client, unless you’re in such an unusual niche that they can’t find other lawyers.  Dishonest websites make all sorts of fascinating claims, from honors by non-existent bar associations to fantastical claims of success to self-attributed characterizations of grandeur.  Even those websites doing little more than “being there” lay claim to unearned experience or false reputation by mindlessly using some marketer’s stock language.

Vitaly Borker is shameless, unrepentant.

Nice? No.

Profitable?

“Very,” says Vitaly Borker, the founder and owner of DecorMyEyes, during the first of several surprisingly unguarded conversations.

“I’ve exploited this opportunity because it works. No matter where they post their negative comments, it helps my return on investment. So I decided, why not use that negativity to my advantage?”

Once one gets past the whole honesty thing, there is a brave, new world of dishonesty to explore.  Is there any particular reason why a lawyer, who has already decided to manufacture an online persona designed to get business that his real life persona could never match, would decide that there’s a depth to which he will not go? 

Perhaps some lawyers have a shame threshold that can’t be explained by a conceptual ledge on the slippery slope, but as the quest to market oneself fails to provide the desired return, increasingly extreme measures will be needed.  Hey, the kids have to eat and the lease payment is due on the Mercedes. 

But what about law enforcement, putting a stop to criminals (and he certainly appears to be a criminal) like Borker?

The Internet Crime Complaint Center, or IC3, a partnership between the F.B.I. and the National White Collar Crime Center, announced two weeks ago that it had received its two millionth complaint since it began in 2000. Consumer losses are estimated at $1.7 billion.

The story of DecorMyEyes suggests that 15 years after the birth of online commerce, the Internet is still strewn with trap doors, and that when consumers take a tumble, they are pretty much on their own.

Two million is a lot of complaints, and there aren’t enough cops to go around, even if we assumed they cared in the slightest about individual instances of internet crime.  Borker could jump up and down in front of the FBI offices all day long without attracting much attention.  He’s just another small potatoes guy making a living on the internet, unworthy of much notice.  If you doubt it, consider how brazen he must be to talk about his “exploitation” to a reporter from the New York Times. 

The irony of writing this post is that I fear giving new ideas to those who have tried walking the street in hotpants and found themselves unable to get any cruising cars to stop.  In the back of my mind, I want to believe that lawyers, unlike Borker, would never adopt these methods to get their websites to the top of Google, to game the system and scam clients for a buck.

Lawyer wouldn’t do that to get to the top.  Would they?

Over at Concurring Opinions, Maryland lawprof Danielle Citron has taken the next step down the slippery slope of  cyber  civil  rights by calling for “intermediaries” to impose “digital citizenship” on those who are the targets of her wrath.

Although intermediaries’ services can facilitate and reinforce a citizenry’s activities, they pose dangers that work to undermine them.  Consider the anonymous and pseudonymous nature of online discourse.  Intermediaries permit individuals to create online identities unconnected to their legal identities.  Freed from a sense of accountability for their online activities, citizens might engage in productive discourse in ways that they might not if directly correlated with their offline identities.  Yet the sense of anonymity breeds destructive behavior as well.

Intermediaries should recognize these particular challenges that cyber hate in networked spaces poses to individuals’ capability to participate meaningfully offline and online.  In our upcoming article Intermediaries and Hate Speech: Fostering Digital Citizenship for the Information Age (forthcoming Boston University Law Review 2011), Helen Norton and I invoke a concept of digital citizenship to ensure that intermediaries acknowledge and address these challenges.  

That people say things online that are patently offensive isn’t in issue.  They do.  It’s long been my policy to police the comments, deleting those that attack baselessly among others, in an effort to keep the place reasonably neat and clean.  But I do that because I choose to keep my house in order, at least to the extent that it appears in order to me.  Others will think my hand is too heavy on the delete button.  Still others, too light.

But nobody has ever suggested that commenters are somehow citizens here, or that I am somehow the official in charge.  Until now.  And it’s urged that I “acknowledge and address these challenges,” meaning keep you in check and make sure you behave yourselves. 

Or what? 

The idea behind Citron’s cyber civil rights view is that if someone is made to feel badly about something they say, then their right to “participate meaningfully” is impaired.  Of course, if others aren’t allowed to disagree, even if it hurts the feelings of Citron’s favored class, then their right to participate meaningfully is impaired as well.  But aside from this gap of reason, the push is recreate rules, with hard liability for their violation, on the wild west of the internet, just as we’ve done in the real world. 

On the one side, there is criminal and civil liability in real life for making people feel badly online.  On the other side, there is the creation of this concept of digital citizenship to hold places like Simple Justice liable for your nastiness.  The reason is clear: if intermediaries are required to keep their “citizens” in line, then we can clean up the speech that offends and make this digital world a happier place, where no one need fear expressing their thoughts and being met with anyone who disagrees in a manner that hurts their feelings.

This isn’t to say that those of us who happen to be intermediaries are in favor of those who would anonymously attack others, especially for the purpose of just causing offense.  There’s a surprising amount of that, even here, which never sees the light of day.  But then, it’s a fine line between challenging ideas with which one disagrees, and attacking.  Where Citron would draw the line remains unclear, though what became brutally clear during the cyber civil rights discussion was that it all fell under the rubric of hate speech when it hurt someone’s feelings.  It’s hard to keep our citizens in line when the line changes with every new hurt feeling.

So now that the next step in the campaign is to make you digital citizens of Simple Justice, we need to come up with some of the basic rules of citizenship.  A dress code, a pledge of allegiance.  Maybe a flag or a bird (the turkey is still available).  Of course, in the land of SJ, we need an anthem.  I’m thinking this?

Within  Adam Liptak’s article about the new model of former Supreme Court justices telling tales out of school, one point becomes painfully clear.  We are a nation of men, not laws.  The foremost reason for monumental swings in our constitutional jurisprudence is personnel changes.

Justice Stevens said the court took wrong turns in deciding how juries in death penalty cases are chosen and what evidence they may hear, in not looking closely enough at racial disparities in the capital justice system, and in failing to police the role politics can play in decisions to seek and impose the death penalty.

In Payne v. Tennessee in 1991, for instance, the court overruled a 1987 decision, Booth v. Maryland, that had banned statements from victims at sentencing because of their tendency to inflame juries.

“I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 had they remained on the court,” Justice Stevens wrote. “That the justices who replaced them did not do so was regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decisions.”

The point, at least for purposes of this post, isn’t that Justice Stevens’ late-in-life conversion that the death penalty could not be constitutionally applied, but that all the hard work put into the issues. From the deep-parsing of law to the aggregation of statistics to the dotted “i”s and crossed “t”s in a typographical fashion that not only met the court’s requirements but added a persuasive appearance, none had  any impact on the only factor that mattered:  Powell was replaced by Anthony Kennedy, and Brennan was replaced by David Souter.

This isn’t to impugn any justices’ vote or position, or to suggest that one was right (or righter) than the other.  That’s a matter for other days based on particulars.  The only point to be made here is that we want to believe that the Supreme Court decides cases based upon reason and logic, with a bit of precedent thrown in for consistency.

To believe otherwise is to admit that we’re wasting our time playing this game.  It suggests that this is a big charade, spouting platitudes about the greatness of the system to men and women whose decisions were made long before we stepped foot in the courthouse.  If so, that really sucks.

It’s hardly so cut and dried on all issues, with a swathe across the middle where judges could go either way.  It’s not as simple as either the conspiracy theorists or the philosophically dogmatic would have it.  But on the biggest issues on the ends of the spectrum, the most fundamental aspects of the legal system that have the greatest, and gravest, impact on people, it’s all about who you know, not what you know.

“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings,” Justice Stevens wrote.

Here, too, Justice Stevens wrote, the decision turned on changes in the court’s membership. Justice Potter Stewart “surely would have voted with the four dissenters,” Justice Stevens said. Justice Stewart was replaced by Justice O’Connor, who voted with the majority.

That wild swings in the law are based upon the vote of a single justice is really a remarkable indictment of the process.  Noting that  5-4 decisions changing what is, and isn’t, constitutional reduces the idea that the fundamental law doesn’t swing with the popular mood to a farce.  Few would disagree that basic constitutionality shouldn’t change with the personnel, but then each new justice believes they’re just returning the court to balance and, once they’ve put their imprint on the Constitution, those who follow should keep their mitts off.

The new paradigm, where retired Supremes spill their guts as to what went wrong, and what is wrong, with the court may be viewed as a bad thing, undermining the dignity of the institution and the integrity of its decisions.  As the least dangerous branch, the only one without the ability to tighten the purse strings or order the army to mobilize, it’s powerless without integrity and the respect it engenders. 

As familiarity breeds contempt, we are seeing justices less as the protectors and defenders of the Constitution than a bunch of folks with an agenda, determined to reshape society in their image.  This doesn’t mean they don’t believe in their judicial philosophy, or that they’re acting in any manipulative or malevolent way, but that they put on robes and get to leave their fingerprints all over the Constitution no matter what it said the day before they took their oath.

Us groundlings in the process want to believe that we can march over to the courthouse and, through the use of well reasoned, well documented, argument and proof persuade a judge to rule in our favor.  We want to believe that the foundation of our law is firmly rooted in logic and fact.  We need to believe that judges will listen to us with at least one ear open, give us the time of day, show us that modicum of respect that recognizes this isn’t all a big game with a pre-determined outcome, where we all play our respective roles and yet the finale comes no matter how well we’ve acted. 

If the big dogs in Washington are unwilling to really consider the arguments before them, determined to impose their sensibilities on something as big and overarching as the Constitution, what chance does the little guy have asking the most local of judges to give him a fair shake?  And what are the chances that lawyers toiling in the trenches will fight rather than merely act the part, believing that we’re just a nation of men (and women), and the laws are merely the backdrop to who you know.

It reignited with Venkat Balasubramani’s post at  Spamnotes about the topic that never dies, why blawg?  The amorphous claims of “client development” remain undeveloped, with unproven and unprovable anecdotes by a handful of self-promoters being the totality of the evidence.

When people talk about the efficacy of law blogs, people typically cite to the experiences of other lawyers – e.g., “what law blogs do my lawyer friends read?”  No one ever thinks to survey the clients.  Also, the blogging lawyers never seem to track the relationship between client development and blogging.  (It’s no surprise, for the reasons noted in the  post  linked  above.)  The only (meager) efforts in this regard have been by the marketers and practice consultants.

I’ll also add two more reasons to why people blog.  First, because it’s fun.  Bloggers are an opinionated crowd, and we like to get our opinions out there.  Second, lawyers are creatures of affirmation.  We live and die by the proverbial pats on the head, or by knowing we’ve gotten the better of someone’s argument.  For better or worse, these are rewards in themselves.  A third reason may be to contribute to the “collective consciousness,” but I don’t have any delusions that I have the necessary altruistic instincts for this to be a legitimate reason.

So why bother blawging? Well, if you’re a real lawyer who wants to master your craft, then blawging is an end to itself.

If you don’t enjoy writing, don’t bother blawging.

If you don’t have any opinions, blawging is a waste of not only your time, but your readers’ time, as well.

If you don’t care about issues affecting your practice and the profession, you’re not cut out for blawging.

If you think that blawging will get you more clients, you don’t know the first thing about the business of law.

If you believe that paying a lawyer marketing firm which promises to get you top “SEO ranking” on Google searches or thousands of followers on Twitter, then I don’t care what you have to say, write, or think.

If, however, you are busy representing clients ethically, dispensing competent legal advice, and always striving to improve your skill set, then blawging may be just the ticket to becoming a better lawyer.

One of my folders is dedicated entirely to bankruptcy blogs.  As a consumer bankruptcy lawyer, this is one of the well-worn spots in Reader.  What I found was astounding.

The majority of the bankruptcy blogs in my feed reader had been dormant for six months or more.  Many of them have been dead silent for over a year.  Virtual roadkill lines the Internet.

But that’s just the tip of the iceberg, my friends.  In looking at those law firm blogs that have been active over the past six months, I saw that many of them were talking about exactly the same thing – the basics.  Boring, mind-numbing experiences devoid of humor, opinions, or even a hint of graphics.  In sum, they all read like law school treatises.

sir with all due you have a rss feeder and no disclaimer we have done nothing wrong than to give you benefit of our reach

my take? More readers, the better. Welcome to the new media.

I’ve not always been kind to Ted Frank, one of the founding fathers the Martin Van Buren of Overlawyered.  Then again, Ted hasn’t always been kind to lawyers, being a bit lopsided (from my remove) of those who represent the harmed, maimed, injured and dead at the hands of corporate America.  

But when I received notice of a class action settlement recently, and read through it twice without having the slightest clue what was in it for the class, I turned to Ted.  Ted created the Center for Class Action Fairness,  It was born of his antipathy toward what he saw as meritless lawsuits and the inclination of plaintiffs lawyers to bring class actions to extort a fee, and the absence of any incentive for class members to object to settlements that benefited the lawyers and did little or nothing for the class.

CCAF hopes to change this by giving consumers another option: object, with a lawyer standing behind them to explain to a court why the law doesn’t permit such an extortionate settlement that fails to benefit consumers.

By letting courts know that consumers are watching them, they’ll be less likely to rubber-stamp bad settlements. If bad settlements aren’t approved, then trial lawyers will be unable to profit off of bad cases. Without the promise of profit, the bad cases won’t be brought. And we’ll all be better off.

I have nothing against effective airport security. But that’s not what we have: rather, we have security theater. The requirement of shoe removal and the bans on carrying liquids onto planes are insults to the American public that serve no conceivable purpose other than to lull the public into a false sense of security.  And the TSA has gone even further, with virtual strip-searches (exposing passengers not just to the loss of dignity, but to radiation with uncertain health effects) and offensive pat-down groping. You can shout about the underwear bomber all you want, but TSA didn’t stop the underwear bomber, and the new detection mechanisms wouldn’t do so, either. On September 11, 2001, the dynamic changed, and passengers learned that they were the last line of defense against terrorists in airplanes. And every terror attack on an American passenger jet since the first three hijackings of September 11 has been stopped by American plane passengers, not by the TSA.

My name is Ted Frank. I’ve visited the White House and stood within five feet of a president without anyone needing to stick their hands down my waistband, but that is not good enough for the TSA. I’ve wasted hours of my life standing in lines created by pointless TSA procedures; I’ve been groped by TSA officials; I even missed a flight once because I was pulled aside for a punitive TSA pat-down after I’d been waved through security because I dared to complain that the TSA X-ray operator was spending time joking around instead of inspecting baggage at a rate faster than one bag a minute.  And enough is enough.

During the pie course of dinner, talk turned to more important matters:  Football.  My guests from the south of Jersey seized the opportunity to inquire about the pending demise of the New York Giants, a risky question in my home.  They uttered dangerous words, the Philadelphia Eagles.

Whenever anyone mentions the Eagles, Dr. SJ makes a spitting sound and says, “they’re a dirty team.”  She’s been doing this since Buddy Ryan was coach.  She hated Buddy Ryan and contends they were taught to play dirty then and have continued ever since.

But like any other aficionado of football, she found it amazing that they let Donovan McNabb go and gave Michael Vick the starter job at quarterback.  Michael Vick, you will recall,  was involved in dog fighting.  He got himself a fine, Biglaw, defense.  Michael Vick copped a plea and got 23 months.  Michael Vick did time.

The rising star of the Atlanta Falcons flamed out.  While his crime fell short of tragedy, dog fighting is one of those venal, disgusting crimes that many find intolerable.  How can someone be so cruel as to enjoy, to cause, the maiming, the death, of a dog.  It’s sick.

So I asked the Jersey Shore cast what they thought of having Vick front and center, the star of their team, implicitly noting they must cross the border to a legitimate state in order to find an NFL team for which to root.  They hemmed and hawed.  “Love the team, hate the quarterback,” I asked?  They had yet to make peace with the cognitive dissonance.

After coming to grips with their lack of coming to grips with Michael Vick, the question was tossed back at me.  I explained that Vick did his time and paid his debt to society.  While he shouldn’t (and didn’t) get a free ride for being a football star, he shouldn’t be tainted for life for his crime.  He did wrong and paid the price.

But now he can still throw a football and scramble a bit.  There aren’t a lot of jobs one can get with that limited skill set, so NFL quarterback seemed like a pretty appropriate place to go to work.  I wonder if his probation officer helped him negotiate the contract, or whether he has any travel restrictions on his supervised release that impede his jetting to the next game.  Must he send weekly faxes asking for permission or can they cover the season with one longer fax?

Vick has shown sound judgment in keeping his mouth shut and playing football.  He is not a hero as a person, but he is still a person entitled to move past his crime and enjoy a successful career doing whatever someone will allow him to do.  The question is often raised when a well-known sports celebrity gets himself into trouble whether they should be held to a higher, or at least different, standard than others because they are role models.  We watch them play ball, but want them to be the poster boy for American virtue.

Just then, my mother, Phyllis, who looks at least five years younger than her age of eighty (she was a child bride), asked for another “sliver” of Dr. SJ’s sour cherry pie.  My niece reminded her that every three slivers was a slice.  She wasn’t fooling anyone.

Michael Vick is the poster boy for American virtue.  Not his virtue, as he lost that when he participated in the killing of dogs, but that of the fans in Philadelphia.  They weren’t too pleased with his joining the team last year, but they have accepted him, if not quite embraced him, this year.  Playing well didn’t hurt, mind you, but he is the starting quarterback of a team in the NFC East, the only division that really matters.  And he’s a convicted felon.

Redemption is hard to come by these days.  Whether because there are just too many people around to waste our time giving anyone a second chance, or because we achieved a simplicity in our view of others that prevents us from demonstrating that humanity is still an attribute of humans.  It looked as if no one could ever pay his debt to society and be given the opportunity to try again.

When the Eagles signed Vick, they took a huge risk.  It wasn’t a problem with his throwing arm, but with his acceptance by the fans who buy shirts with other people’s name and number on it.  They couldn’t be sure if Michael Vick would be cheered or booed as he took the field, even though his debt was paid.  My point was that if Vick could still throw the ball well enough to complete a pass after his release from prison, then he should be given the chance to play.  Not because he was a convicted felon, but despite it.  “The Philadelphia Eagles,” I said, “did the right thing.”

I heard the sound of “tfu” as Dr. SJ muttered, “they’re a dirty team.”  Phyllis said nothing as her mouth was filled with sour cherry pie.

There will be a slew of people arriving shortly, and much remains to be done.  I’ve much to be thankful for in my personal and professional life, but this is an opportunity to express my appreciation to those of you take the time to read Simple Justice. 

There is no shortage of people writing in the blawgosphere, and no one has the time to read everything, even in the small niche of criminal law.  That so many of you have chosen to spend some time here is really quite amazing.  I’m honored that you find Simple Justice worthy of your time.

Whether this will amount to anything, change any minds, illuminate any issues, has never been quite clear, but it does remind me that we’re not alone and that, despite the forces that work to persuade us that we should forsake our clients, our freedoms, our integrity, there remain many who refuse to succumb. 

Thank you.  Have a wonderful Thanksgiving.

From the  Washington Post (via AP), the United States Marshal’s Service is “exploring” the use of full-body scanners at courthouses. 

The U.S. Marshals Service, which is in charge of protecting federal judges nationwide, is exploring their use at federal courthouses. And two state courthouses in Douglas and El Paso counties in Colorado have already deployed full-body scanners that use radio waves to detect all objects on a person, including paper.

A guard in a separate room monitors the gray images with pixelated faces and genital areas, and the images aren’t stored on a computer. officials said.

Obviously, they would never look at my genitalia.  Union rules prohibit viewing anything that causes blindness. Yours, I dunno.  It’s already happening, sort of, in Colorado, but they’re all rocky mountain high, so nobody cares.

While Michael Prout, assistant director for judicial security, says that the Marshals haven’t decided to deploy the body scanners, they’ve already given it a tryout.

Prout declined to discuss the results of a full-body screening test, citing sensitive law enforcement and procurement information.

In a statement, the marshals said they didn’t receive any complaints from people passing through the scanners during the tests. The images of the full-body scans were saved on a computer hard drive, but weren’t accessible without an administrative password and weren’t reviewed by the marshals, according to the agency.

Sensitive indeed.  I can’t explain why there were no complaints, though it might be because the Marshals carry guns and the people going into the courthouse were under indictment?  Or maybe they, like all obedient lawyers, implicitly trust the marshals not to peek.

In any event, I naturally wanted to see whether it was just me, or anyone else, who thought that this might not be the best idea, given how popular it’s made the TSA of late.  I thus strolled over to  Crime and Consequences to see how true Americans reacted.  I’ll be damned.  Kurt and I were on the same page!

There are two important differences between courthouses and airports relevant here.  First, courthouses aren’t nearly as vulnerable as airplanes.  No one is going to kill thousands of people by bringing a box cutter knife into a courthouse.

Second, people can choose not to fly.  You can’t choose not to enter the courthouse.  If you are summoned as a juror or witness, you have to go.  If you are a litigant, you don’t have a practical alternative.  (Defaulting on a $1M complaint is an alternative, but not a practical one.)

That’s right, even our good buddy Kurt isn’t thrilled with the idea of magic x-ray glasses focused on his crotch.  What about underwear bombs smuggled into the courtroom?  Feh.  And what about those forced guests being of the criminal ilk?  Feh. 

Of course, we all want to live a completely risk-free life, with no possibility of any evil person blowing us up.  Or crashing into us.  Or looking at us with a mean face.  Or annoying us in any way shape or form.  But we will never live in such a world because the only it could exist is for us to sacrifice all that makes us a free people, pursuing happiness amongst other things.  There’s no perfect safety.  Not in a plane, a courthouse or our own living rooms. Get used to it and smile.

To the extent one wondered what it took before the anything-for-law-and-order guys were ready to draw a line in the sand, now we know.  Don’t mess with their junk.  Funny how nothing matters until it touches someone.  Does this mean anal probes are out of the question?  Even if the marshal’s promise to warm their hands first?

Nice to have you on board, Kurt.  Now put your seatbelt on for take off.  It’s gonna be a bumpy ride.

From Jamison Koehler , who obviously stays up later than I do on Saturday nights.