One might suspect that the military justice system, being applicable to a far more discrete group than the criminal justice system in general, might be capable of having a more closely shared vision of “justice” than the rest of us.  Eric L. Mayer, in his terrific blawg, Military Underdog, puts that bit of silliness to rest.

As those who read this blog know, I have no use for justice in my work as a Criminal Defense Lawyer (CDL). My goals do not involve it unless “justice” benefits my client.

Eric makes a fascinating observation about the word, “justice”, itself:

As a prosecutor, I talked a lot about “justice.” As with many in the business of representing the government, I used the word like a professional nervous tick. I used it to make others feel good about taking away a human’s freedom. I used it to sleep at night.

It’s a great word, justice.  It takes the onus, the fear that surrounds a decision to imprison, or worse, another person off our backs.  We didn’t do it to the defendant.  It’s justice.  Invocation of justice is another trick in the prosecutor’s bag.  Everybody loves justice.  Everybody wants justice.  As long as it’s justice, anything goes, and we can all be proud of ourselves for having achieved justice.

This observation stems from an excellent example of how this very common word is invoked without common meaning, a point that I’m told needs constant reinforcement.  A soldier, after completing his vacation from a tour of duty in Iraq, refused to report back for duty.  He was charged with desertion.

Two levels of commanders agreed he should be charged. A military prosecutor drafted the charges, and presumably at least two levels of legal supervisors reviewed the matter for the more junior prosecutor. The charges were signed, read to the young Sergeant, and he was informed that he faced up to a year in prison and a Bad-Conduct Discharge from the Army.

On it’s face, the charges appear fairly simple and straightforward.  Clearly, it passed muster with the soldier’s command, as well as the military lawyers assigned to prosecute him.  With all these eyeballs, all of whom sharing the same understanding of what it means to be a soldier, to serve in Iraq, to not want to go back and to bear the consequences of desertion, certainly there was agreement that his prosecution served the end of justice.

Or maybe not.

There was a problem. Upon returning from Iraq, he discovered that his wife abandoned his two young (below the age of 7) children while she fed her drug habit. For more than 20 hours each day, the children were left alone surrounded by filth. Food and water were obtained through the children’s ingenuity and resourcefulness. They were malnourished and dehydrated. It was sad and disturbing.

The Sergeant did not know what to do. He had very little family, a mother with severe health problems, and few resources. He obtained the kids, moved them into a clean house, and filed for divorce. However, his 14 days of mid-tour leave was almost up. He asked for an extension. The command gave it to him. In the 10 extra days, he talked to friends, distant relatives, and anyone else he knew. None could care for his children, and he certainly would never trust his wife again.

He informed his commander and First Sergeant. They said they were sorry, but duty called. They told him to turn his children over to the state and deploy to his military unit in Iraq. That sounds vaguely interesting, so I’ll repeat it. They told him to turn his children over to the state and deploy to his military unit in Iraq.

Asking a father to turn his children over to the state or face charges of desertion changes things.  The soldier’s military defense lawyer went up the ladder of command and told them of the soldier’s dilemma.  They were appalled.  The charges were withdrawn and the soldier was given an honorable hardship discharge.

Where’s the justice?  The situation was no different when five military minds decided that this soldier’s conduct demanded his prosecution for desertion.  Unlike our system, lawyers in the military are not permanently aligned with one side or another, being assigned to either prosecute or defend as needed, and hence without the typical bias we find in our system.  They are dealing with men and women who share the same training, responsibility and circumstances.  If there is ever a group that should appreciate the circumstances of others, it’s the military.

Yet the perspectives on justice in this case could not have been farther apart.  One group of like-minded people believing that justice demanded prosecution, while another being appalled at the idea that a soldier must give his children away to the state. 

What saddened me was that over 10 soldiers, leaders, and legal professionals (maybe more) reviewed the matter and decided to seek conviction and punishment. . . . Even more frustrating: They all believed they had the best interests of justice and the Army in mind. When told of the Sergeant’s predicament, they rolled their eyes (literally). In their mind, the dirtbag just wanted to avoid the rest of deployment.

That commenters, usually non-lawyers or lawyers who don’t practice criminal law, though unfortunately not always, rant about “justice”, it reflects a lack of grasp of the fundamental reality that there is no such common concept.  One person’s “justice” is another’s outrage.  If the word shares no common meaning within so discrete a group as the military, consider how disparate the understandings are in our larger society, where we rarely agree about anything.

Next time someone cries for justice, they might just get it and find out it’s not the outcome they thought it should be.  Eric Mayer gets it.

The ABA Journal came up with a fascinating promotion, called Legal Rebels.  With some exceptions, it’s largely a celebration of lawyers who are engaged with social media, as if an iPhone on your hip made you a latter-day James Dean.

For those honored, it’s as good an opportunity to scarf a bit of publicity as any.  After all, the ABA Journal carries a bit of cache from the old days, when the ABA mattered.  To many lawyers unfamiliar with changes in the last decade, they are impressed by a mention in the ABA Journal.  I can’t blame the lawyers whose smiling faces appear in their Rebel bios from taking advantage of it.  We can all use a little appreciation from time to time.

But what really impressed me was one “Legal Rebel” who used her appointment to the gang as an opportunity to declare that she was no longer a rebel.  Just a lawyer trying to do what lawyers are supposed to do.  That Rebel is Carolyn Elefant.

I’m deeply flattered that the ABA Journal recognized me as one of its ten solo legal rebels.  Trouble is, I don’t feel very rebellious these days.

That wasn’t always so. Back in law school more than two decades ago, I was a rebel in the truest sense of the term, defying conventional wisdom and challenging every perceived inequity. 

Perhaps because the legal profession is adversarial, most of us view the world in black and white. Tiny variances from the norm (using electronic signatures instead of ink! representing clients online instead of remotely by phone! a blog instead of a newsletter! numerical client ratings instead of AV or BV!) are regarded as seismic events, and those who use new techniques are hailed as rebels.  But in reality, many of us rebels (well, at least this one) aren’t fighting the legal system at all but instead, are simply fighting to keep our place in it.

The ABA Journal is an unabashed cheerleader for social media, and its Rebels more like to ride twitter than a Harley (or a Legal Rebel skateboard).  That it happens to be self-serving, given the Journal’s social media existence, may have a bit to do with its choices as well.

But Carolyn underestimates her rebeliousness.  While she is an early adopter, and has been on the cutting edge since before I ever considered blawging, she has done something special, rebellious, in the process.  She has refused to surrender her integrity to the cause.  Whether in her zeal to promote solo practice lawyers as every bit as worthy a professional, and practice choice, or in her support for social media as a medium to better establish a practice and serve clients, Carolyn has always recognized the downside and never shied away from a balanced presentation.  She never says it’s easy or magic.  Carolyn goes to great lengths to make sure that the information offered includes the bad along with the good.  Others have not been so honest, and allowed their vision to be clouded by self-interest.

Carolyn tells the truth.  In my eyes, that makes her a rebel. 

Why does Carolyn’s integrity mean so much that it makes her a rebel.  Because it’s a commodity in such short supply within the social media set.  This short chronicle should make that painfully clear, as well as the failure of the blawgosphere at large, and the ABA Journal (since they’re so busy hyping social media gurus as Legal Rebels), to confront the wrong as well as praise the right.

The whole ABA Journal legal rebel concept is goofy, if you ask me, just because it’s an excuse to blindly applaud social media without regard for the substance of lawyers behind it.  That’s not to say that some of their “rebels” aren’t worthy (even if for reasons other than those cited by the ABA Journal), but just that the idea is so fundamentally silly. 

That said, if the ABA Journal wants to really show some cojones and make a meaningful contribution to social media, let it  stop sucking up to the social media mouthpieces and starting concerning itself with ethical abuses and lies that threaten to turn social media into the last refuse of scoundrels. Isn’t that the sort of thing one would hope would concern the ABA Journal?

There’s likely a sociological theory that can explain what happens in the heads of otherwise fine people when they find themselves on a board or in an office which gives them a bit of an ego boost and some small amount of power.  They are suddenly taken with their self-importance, so much so that they appear to believe that they are better, smarter, more insider, than their brethren. 

And dear colleagues in the criminal defense bar, we are, sadly, every bit as bad as anyone else when it comes to this phenomenon.

First, Norm Pattis raised the issue with the Connecticut Criminal Defense Lawyers Association,

Is it true that one of the executive committee members wrote to federal prosecutors urging a criminal investigation of a prominent Connecticut criminal defense lawyer? I am told that this is true. But I do not know it to be so. Rumor swirls right now about an investigation focused on the relationship between Waterbury State’s Attorney John Connelly and Martin Minnella. A federal grand jury is pressing hard, reviewing files in the state’s attorney’s office and seeking to review records in Minnella’s firm. I represent Mr. Minnella.

The other day, I asked the president-elect of the CCDLA, Jennifer Zito, to voice opposition to the federal government’s decision to contact current and former clients of Mr. Minnella’s. I do not know what the executive committee will do, if anything. But the scope of the investigation seems ominous to me.

Bizarrely, there are inner sanctums of these associations, where the insiders talk amongst themselves about what these organizations should do and why.  What makes it bizarre is that they do so with a sense of paternalism, that they know better than their membership, other criminal defense lawyers, and that when and if information of their secret decisions is revealed, it will be spun and distorted to appease the members. 

There will be no leaks beforehand, as the important decision-makers don’t want to be bothered by the thoughts of those outsiders whose money funds their games.  The members shouldn’t worry their pretty heads.  Their leaders will handle it all and tell them only as much, and in such a way, as they deem best.

Then Mark Bennett wrote about the Texas Criminal Defense Lawyers Association, where the outrage of a challenge occurred.

In the contested election to which [Bill] Harris refers, Gary Trichter made an end-run around the old-fashioned way, getting on the ballot and forcing a general election for the position of president-elect. (I wrote about it here.) At the time, Harris was the chair of the Nominating Committee. He designed the election process. And he supported Gary Trichter’s opponent in the election.

Feelings were hurt; since Trichter won the election, most of those hurt feelings belonged to members of the entrenched TCDLA establishment.

Harris, as president, sent out a screed asserting that the comments of some CDL blawger showed “a reckless disregard for the truth,” to which Bennett cries “foul”.

What Harris and his pals saw as “venomous attacks” were passionate responses to their missteps. It is not members’ critical responses, but rather the conduct of TCDLA’s “leaders” that discredited the association. Harris’s dedication of his President’s Message to the correction of those who don’t agree with him for lack of civility shows that they still don’t get it.

Challenging the very important officers and officials is a heinous offense to the insiders, who only want to be adored and respected by their members.  When the curtains are pulled back, it makes them look bad.  They don’t want to look bad. 

I’ve gone from being as inside as anyone could be with the New York State Association of Criminal Defense Lawyers to having quit office twice (not once, but twice) because I couldn’t stomach the nonsense, the egos, the stupidity, the incompetence and the deception.  It’s not that I don’t like the people individually, or that they aren’t good lawyers, but that something awfully bad happens when they put on the hat of office.  It squishes their brain until it pops out their ears and makes a nasty mess.

In New York, the vast majority of the membership is clueless about the tens of thousand of dollars of their dues having been squandered through malfeasance and misfeasance, while internal power struggles (a laughable concept given that there’s no power to be had) and gutlessness have undermined any meaningful focus on the things that would serve the criminal defense bar. 

To a large extent, this has been fostered by presidents manipulating the unchallenged nominations for board and officers to put their cronies into office to support their pet goals.  They puff illusory member benefits to keep those dues checks flowing and the organization alive so they can get their Best Lawyer of the Year award at the next gala dinner to honor themselves.  Is this what’s happening in Connecticut and Texas as well?  What about other states? 

At the annual meeting of the Florida Association, I saw a contested election play out.  It happened in the right way for the right reasons, and with good humor and grace.  I saw transparency.  I saw a membership that was active and knowledgable, one unwilling to let the pompous pretend to be their leaders, and instead demanded that they be servants of the Association.  I was blown away, having watched what my home association used to be before being taken over by the little people who needed to feel important at the expense of the membership and the association’s purpose.

Criticism, and even open acknowledgment of problems, is viewed as disloyalty to the cause.  The petty nobodies in charge use their office to attack the critics and deceive the members, because the members are just foolish children incapable of understanding the very important thoughts and work being done by the inner sanctum.   

It’s not that all the people involved are evil, pompous or petty.  Many are troubled by the abuse and deception, the in-fighting over self-interest, the concealment of problems, dissembling and paternalism.  Yet they aren’t willing to buck the group mentality by going public to the members, becoming pariahs within the inner sanctum.  If they can’t take it, they quit, but remain silent.  There remains some inexplicable debt of silence to the insiders rather than a fiduciary duty of honesty and fidelity to the members.

It wasn’t always this way.  It doesn’t have to be this way.  But it won’t change as it currently exists, with an entrenched establishment whose purpose is its own perpetuation and little else.  The criminal defense bar is in desperate need of a strong, clear voice, now more than ever.  And instead, our once vital associations have become petty fiefdoms whose primary purpose is the self-aggrandizement of a few, often unworthy, self-important insiders. 

We, criminal defense lawyers, are not their children, and don’t need to enable this.  And they, most assuredly, are not our Daddy.  It’s time to take back those of our associations that have lost focus and no longer serve the criminal defense bar.  Enough with the lies and nonsense, and enough with supporting associations that don’t support us.

Update:  Timing is everything, right?  Within minutes of this posting, Norm posted about the “response” he received from CCDLA president-elect Jennifer Zito:

Incoming president of the Connecticut Criminal Defense Lawyers Association Jennifer Zito called yesterday to give me a piece of her mind: I had maligned the group needlessly, mischaracterized her reaction to my request for help with over-reaching federal prosecutors, and otherwise behaved like a shmuck. What’s more, the board members she spoke to adamantly deny having spoken to the feds about investigating Martin Minnella.

The board is not going to submit to a polling. If I want someone recused from consideration of whether to protest to the Justice Department the new-fangled practice of interviewing a lawyer’s current clients, I can ask for it. Indeed, one board member told Zito I lacked the courage to confront the board member directly on this issue. Please, spare me the juvenalia. What next, bitch slaps at three paces in some Dunkin Donuts parking lot? A public denial is at least reliable and capable of rebuttal.

Man, I love it when my old buddy Norm shows up, the guy with balls you can hear clang all the way from Bethany to Long Island, and isn’t afraid of calling ’em as they are, no matter whose feelings get hurt.

You tell ’em, Norm.

In one of its better articles, the ABA Journal posts about a “coalition of civil rights groups and criminal defense attorneys,” including NACDL president-elect Lisa Wayne, suing the Department of Homeland Security over the search of laptop computers at the border.

The searches and seizures at issue, which took place between Oct. 2008 and June 2010, were also performed without any judicial review and pursuant to Homeland Security policy which sets virtually no limit on the scope of searches, the amount of time a traveler’s electronic device may be held, the suit contends.

Lisa Wayne of Denver says her laptop was searched in August 2008 at the Houston airport, without cause, as she was returning home from Mexico where she attended a trial advocacy program. Although, if this ever happens again, she says she will refuse to log on to her computer, she is fearful that regardless of what she does customs officials “may nonetheless detain her laptop and ultimately gain unauthorized access to its contents,” the suit says.

There have been numerous discussions  about the propriety of border laptop searches, as well as Orin Kerr’s theory of technology neutral application of search and seizure law to new technology.  This case has the potential to put the ability of the courts to the test.

Under existing law, the government has the authority to search and seize a laptop computer (or any tech variation on the theme) as a person crosses the border and seeks to enter the United States.  The 4th Amendment warrant clause doesn’t apply, and we have no right to be secure in our papers and effects.  Papers.  What a quaint concept.

The theory behind this was justified by protecting our borders from those who might bring in diseases, whether personally or via plant or animal, or conceal items to avoid the payment of taxes, as well as safety precautions which were exacerbated by concerns about terrorism.   As with most convenient rules, the rubric was remembered long after the rationale was forgotten.   

But the rule worked generally well for centuries, until the laptop showed up at the border.  Check it to make sure it doesn’t conceal a bomb?  No problem.  Makes sure there are no diseases (computer viruses aren’t really diseases, so they don’t count).  Sure, a silly idea, but whatever.  The problem is DHS isn’t satisfied that computers pose no threat of physical harm, and use this opportunity to defend the moral fiber of America by searching the content.  Why?  Because they can.  Whether framed in terms of looking for terrorist content or illegal images of kiddie porn, anything on a computer is fair game.

To the extent there’s a saving grace, it’s that even border searches must be reasonable, though up to now, the operative law treats computers like any other sealed container and considers a search of a laptop to be routine, per the 1985 Supreme Court decision in United States v. Montoya de Hernandez, 473 U.S. 531.  No appellate court has as yet recognized that the content of a computer isn’t a bag of diamonds, but contains thoughts and information that a person might not want others, including the government, to see.

The simple answer is that if you don’t want the government to know what’s on a computer, don’t bring it across the border.  Of course, this defies modern reality and the pervasiveness of computer use in our lives.  Computers are our diaries, files, calendar, lives.  To shift the onus to Americans traveling abroad to either go computerless or suffer the border guard rifling through your hard drive offers a Hobson’s choice.  We cannot do without our computer.

“Electronic devices like laptops, ‘smart’ phones, and external data storage devices hold vast amounts of personal and sensitive information that reveals a vivid picture of travelers’ personal and professional lives, including their intimate thoughts, private communications, expressive choices, and privileged or confidential work product,” the complaint reads.

The action further challenges the means by which the government does it’s dirty work.  Since it may not be possible to check out every file in a computer while standing on the line at Customs, the government can seize the computer and hold it for as long as they want, thus denying people access to the computer and its contents.  They might as well seize a kidney for what that does to people’s lives. 

Moreover, the content of a computer, in the hands of someone wielding a bludgeon, presents insurmountable hurdles.

[A] 26-year-old graduate student, Pascal Abidor, who is an American and French citizen, reports the Associated Press.

Abidor says he was searched, handcuffed and held in a detention cell after U.S. Customs and Border Protection Agents ordered him to provide access to his laptop and spotted images of Hamas and Hezbollah rallies he had downloaded during his research for a doctorate in the modern history of Lebanon, the AP article says. He was traveling from Montreal to New York to visit his family at the time.

When he got his laptop back 11 days later it appeared that much of his research and personal files, including chats with his girlfriend, had been searched.

Fortunately, Abidor wasn’t prosecuted as an agent of the enemy for the content, and his content wasn’t destroyed or deleted, or his laptop held permanently. 

Tacitly applying Kerr’s tech neutral approach, the government and courts have circumvented the issues raised by these border searches via the use of analogy to old law, comparing a laptop to a suitcase or file cabinet.  Dan Solove at Concurring Opinions proffered an approach he calls 4th Amendment Pragmatism as a substitute, eliminating the Katz reasonable expectation of privacy test for “problems of reasonable significance.”  It seems that this intrusion would fail under either test, and is permissible only because of courts’ reliance on the rubric developed at a time when absolutely nothing comparable to a laptop computer was under consideration.  This case presents issues that show why the tech neutral approach will fail to protect privacy in the digital age.  It’s an approach only a government agent could love.

The action offers an opportunity for a strong and credible group to mount a comprehensive frontal challenge to the application of old law to new circumstance, perhaps a last ditch effort to save the concept of privacy at the border, and maybe elsewhere.  The courts must stop trying to stick the square peg of technology into the round hole of bootlegger search and seizure law, and develop a new 4th Amendment jurisprudence acknowledging that technology has changed beyond the point of trying to adopt these old concepts to incomparable circumstances.  It’s just not working.

There are some bright spots elsewhere, with the rulings as to the use of GPS and cell records to “follow” people, but as yet the border remains as closed to privacy as ever.  Hopefully, this coalition action will be our best opportunity to address the monumental privacy issues, the ones that bear neither connection to any legitimate purpose for a border search nor a sound respect for privacy. 

Although this is an issue I’ve harped on for quite a while now, it bears repeating.  Old search and seizure law is inadequate to address the issues arising in a digital world while maintaining any semblance of personal privacy.  If the courts continue to stick their square peg into our round hole, we can kiss privacy good-bye.

Some might think it’s bad enough to take a person who has paid his debt to society and make him a perpetual pariah.  Some might think it’s worse when the cause is some technical offense that threatens no one and offer no potential for future harm.  Some might think it’s sufficient to regulate them to the point where they will never be capable of getting a lawful job and have to live under a bridge for lack of housing that complies with impossible limitations.

But no.  That’s not enough for the Richmond County, South Carolina, Sheriff’s Department.  Mere registration and online availability of sex offenders isn’t sufficient to impugn them publicly and fit nicely within the regulations designed to preclude any possibility of their returning to a normal, law-abiding life.  They needed to do more.  From the local Fox affiliate, MidlandsConnect :

It’s not the most enjoyable thing to read, but law enforcement officials say it’s necessary.

“When you are convicted of certain offenses, you are required by the court to register as a sex offender,” says Captain Chris Cowan of the Richland County Sheriff’s Department.  “What we try to do is not only provide that information online, but to produce publications that are accessible to the community.”

Savannah Jernigan picked up a copy of the newly-released Lexington/Richland County Sexual Predator Offender’s Listing out of curiosity, and she was surprised by what she saw.

That’s right, the Sheriff is producing a local newspaper, listing the names, addresses and photographs of around 850 local sex offenders.

Currently, 40,000 copies of the newspaper have been distributed throughout the Midlands.

It’s an aggressive approach to monitoring sex offenders; however, Tiffany Edwards doesn’t feel that it’s unfair.

I think everyone should know where these people are living, especially if you have kids,” Edwards said.  “I have a child, so I want to know who is near me and in my neighborhood.”

Of course Tiffany doesn’t feel it’s unfair.  Tiffany isn’t in it.  Tiffany doesn’t know anybody in it.  Tiffany has children, and like most people, has no issue with sacrificing others for any sense of safety.  Whatever is good for Tiffany, even if it doesn’t mean a thing.  Hey, you can never be too careful, provided it doesn’t impact your life.

The idea that it’s not enough to make it available, but that the full panoply of sex offender information needs to be pushed into the hands of mothers, is another nail in a coffin that we thought was already closed as tight as possible.  But Doug Berman sees opportunity this time around.

I wonder if they take advertisement in this newspaper. I ask about ads in the sex offender newspaper half-jokingly, but I do think it might be useful for there to be links to my blog and other resources that discussion sex offender sentencing law and policy in these publications. (Of course, I would be too keen on having my picture run with a plug for this blog.)

While this rag is produced by the cops, consider the potential for some entrepreneur to develop local sex offender papers everywhere, and make a killing on related advertisement.  The potential is huge, from ads for Tasers and pepper sprays to entertainment directed at adults with peculiar tastes. 

And if this doesn’t bother you too much because, well, it’s only those disgusting freak child molesters (yes, we know that’s not the case, but we’re channeling Tiffany here and she doesn’t think about all the other offenses that got tossed into the sex offender registration hopper that have no reason to be there, so let it go), the advertising potential for a weekly that lists drug offenders could dwarf the opportunity here.  The hydroponics ads alone would make someone a fortune.

While availability of the information on registered sex offenders is sufficient to make life untenable, and essentially preclude the return to a law-abiding life if that’s what you thought a well-conceived sentence might accomplish, pushing this information into the hands of Tiffanys is outrageous.  Obviously, one sheriff thinks this is a brilliant idea, or that its at least sufficient to win him a few friends, but if this becomes a trend, and it certainly has the potential, it’s brings a bad idea to a level of insanity.

And if it happens, be sure to check out the advertisers.  No doubt there will be a huge opportunity for lawyer ads as well.

The assertion is made within some circles with near absolute certainty: Why?  Why would any lawyer spend her valuable time blawging if not to get business?  To small minds, there can be no doubt.  The answer comes from Justice Anthony Kennedy.

Via Orin Kerr at VC :

On August 19th, Justice Kennedy gave an address that included an interesting passing remark about the role of blogs. Justice Kennedy was talking about how law review case comments generally come out too late to be of use to the Court (especially in the context of deciding whether to grant certiorari in a case). As a result, when Justice Kennedy asks his clerks to look to see what the law reviews have said about a particular case, there isn’t any commentary yet. Justice Kennedy adds: “I’ve found, what my clerks do now, when they have interesting cases — They read blogs.” 

For serious people in the blawgosphere, this is confirmation of what’s known and believed anecdotally.  We know that courthouse computers are used to access our posts.  We don’t know who is using them, but we know that it’s happening.  We receive private emails, notes and letter from judges.  Every once in a while, a judge leaves a comment. 

The potential was made clear when Doug Berman’s Sentencing Law & Policy was cited in a footnote to Justice John Paul Stevens’ dissent in U.S. v. Booker, the first time a blawg was cited.  It was a huge revelation, that blawgs weren’t just idle chatter but a new source for thought and information that could influence the direction of the law.

Picking up on Kerr’s post, Lawprof Ann Althouse assumed that this applied only to law professors, giving those who blogged a “special line to the court.”

This means that the lawprofs who keep up high-profile blogs have disproportionate influence. You have traditional lawprofs laboring over law review articles, but these articles come out too late to discuss a case that’s pending in the Supreme Court. One answer — I’m not the first to say this* — is that law review articles should properly be about something other than the latest pending or just-decided cases, something more timeless and profound. But I think that most law professors would like to be involved in the legal developments of the day. It must be irritating to see that the lawprof bloggers have a special line to the Court.

It didn’t occur to her that blawging spells the end of the lawprof’s monopoly on outside influence; While few practicing lawyers have the time or inclination to write law review articles, leaving the medium almost exclusively to scholars hoping for tenure, blawging is readily available to any lawyer who feels the itch.  The question remains how they choose to use the itch, for self-aggrandizement in the hope of scoring that next DWI case or to change the course of the law by writing something that makes a Supreme Court justice think twice.

Kevin O’Keefe , however, saw clearly what Althouse missed, that the influence of blawging was hardly limited to lawprofs, and that judges read blawgs that offer credible and significant thought on the cases and subjects under their consideration.  Despite what the lawprofs think, any lawyer who presents sound, credible thought has as much potential to influence a judge, whether Supreme or local, as a lawprof.  Lawyers are finally in the game.

For many in the blawgosphere, the question is posed whether our writing about cases and new and issues is nothing more than preaching to the choir, educating the interested or providing a thoughtful position in the hope of influencing the thought of those people who make the decision that will change lives and law.  Here’s your answer.  We can.

For those who are satisfied writing for the Happysphere, seeking nothing more than a bit of meaningless affirmation or the one in a thousand paying client, running scared and angry if anyone looks at you with the stink eye, this is what you’ve given away.  You bring nothing credible or meaningful to the table, and you squander any potential you might have had to influence the law.  Happy now?

To the peanut-brained marketing sycophants for whom there can be no motivation that isn’t mercenary, this is a damn good reason why people blawg that has absolutely nothing to do with making a quick buck.  Of course you don’t get it, and you never will.  But if you want to know why some aren’t embracing you, here’s an answer.

For those lawyers who are pondering whether to blawg, to comment, to have a voice in the blawgosphere, and ask themselves the question of why should they bother, this provides a very sound reason.  Because Justice Kennedy is listening.  Other judges are listening.  And most of us, not all but most, have a desire in our gut to leave this place a little better for our having existed.  This is a chance to do so.  Don’t waste it.

Real lawyers think.  Real lawyers can have a real impact on the state of the law.  Real lawyers have blawgs.  Want a chance to influence the Supreme Court?  Here it is.

Another Labor Day to ponder what’s become of our great nation and the men and women who gave it the strength and resilience to face any challenge and overcome it.  This began as a celebration of the workingman, an animal no longer familiar to Americans.

Whatever happened to labor?

Not Labor with a capital L, as in organized labor unions. I mean labor as in skilled workers solving interesting problems. I mean craftspeople who use their hands, their backs and their heads to do important work.

Labor was a key part of the manufacturing revolution. Industrlalists needed smart, dedicated, trained laborers to solve interesting problems. Putting things together took more than pressing a few buttons, it took initiative and skill and care. Labor improvised.

That’s from Seth Godin, and very inspirational.  It’s unfortunately not accurate in the slightest.  The industrial revolution needed sheep-like workers, and plenty of them, to provide the cheapest possible fodder for their machines.  They were happy to use starving children to pull the levers that worked the wheels of industry, as long as it made them money.  Is that what Seth means by “improvised”?

Godin is a smart guy, so if I’m forced to choose between his being ignorant of labor history or his recreating history that never happened, I’m inclined toward the latter.  The question is why he would do such a thing.

The answer, I suspect, is that the truth about labor in America is too painful and inconsistent with the schemes and dreams of America’s youth.  You can’t sell them a bill of goods by making them feel lousy about themselves and their future, so inspire them instead by feeding them feel-good lies of false hope.

From the Harvard Business Review :

Most if not all of the digital communities where Gen Y has spent time are highly egalitarian. They’re indifferent to pre-existing hierarchies and credentials, and sometimes even hostile to them. And these communities seem to Millennials to work really well; Wikipedia gives them good information on any topic under the sun, Intrade prediction markets tell them who’s going to win elections, Twitter lets them know what’s going on in the world better and faster than any other source, their Facebook friends answer their questions for them, and so on.

All this can make a strong case to Gen Yers that hierarchy and credentialism are passé as concepts, or should be. So when they show up after graduation at their first employer, some of them start acting this way.

They assume that their contributions and opinions will be as sought after and valued as anyone else’s. They feel free to voice their thoughts on topics both related and unrelated to their job descriptions. In short, they implicitly follow the explicit philosophy of most Web 2.0 communities, which is “we’re all equals here.”

If you have any doubt that this is happening, spend five minutes on twitter, where you will quickly learn that anyone with a keyboard is the equal of anyone else.  Not just in their mind, but in the minds of all.  After all, you have no idea who that fellow twitting at you is from the amorphous bio, “Cyclist and lover of all things worthwhile, discovering great food and helping others to transcend their limitations.”  Okay, so you ride a bike. Got it.

Everyone realizes that they can’t all be the king of the world.  They just recognize the fact that the others are a bunch of fakers, while our claim is real.  They all want to be the one who really is entitled to tell the boss what’s up, while the other dopes should go back to their cubicle and try not to drool on the keyboard.  The egalitarian digital society matches up nicely with the image Godin manufactures of the laborers who made America great.  But as Godin’s history never happened, so too will the pseudo-egalitarian society bring failure and unhappiness.

There’s a reason hierarchies exist.  You can’t be the boss if there’s nobody below you.  Consider the pyramid, that three sided shape you ignored in geometry class.  Notice how it’s big at the bottom and small at the top?  Turn it upside down and it falls over. 

It’s understandable that you don’t want to be in the big group at the bottom, with all the other people who think their every idea is critically important but isn’t (unlike yours).  But without that big group at the bottom, there’s no one to do the work.

At his blawg, renamed for Labor Day How ‘Bout Getting Back to Work, You Losers…™, Wild man Dan Hull keeps beating the drum:

“Nice guy/lady–just don’t get in a foxhole with him/her”. We hope that no one has ever said or thought this about you–but it’s likely that they already have. We live in a world where about 98% of the time wimpiness and lack of courage are rationalized, stylized, and sold to us as “smart” or “prudent” and even as a “right”.

Americans, too, of course. For all our bluster, many of us get weaker, more insubstantial, and more irrelevant every day. We don’t meet and talk. We rarely look anyone in the eye. Instead, we type and text, day in and day out: skittish mini-critters running on shiny little treadmills in cages set behind screens and tubes.

Squeak-squeak.

Indeed, Technology has insulated–rather than “unleashed”–many of us. Is this all there is? Dang! Busy but dazed and confused? Whoa. Life sure got small and squeaky fast.

Squeak-squeak, you losers.

I’m not entirely sure that Dan’s 98% is accurate.  He may be overly optimistic, but that’s not terribly important.  What matters is that we stop embracing the feel-good lie that we’re all going to be the king of the world, effortlessly and by the end of the week.  There will be no vast wealth to be had by spending your life sending text messages or playing videogames. 

On my first day of college, the dean told the assemblage to look to their right, look to their left.  One of us would not graduate.  Failure is a fact of life, and it was up to us to make sure that we worked our butts off to make it through, to not be the one going home on the bus to a future at Dairy Queen, aspiring to one day be the manager.  It was harsh, but necessary. 

Is this too negative a post for Labor Day, a day to celebrate the achievement of America’s working men and women?  Absolutely, but then our society is a smack in the face to all those men and women who worked hard, who sacrificed, who never had the chance to concern themselves with work/life balance because there were mouths to feed or bridges to build.

No one is consigned to the junk pile of the Slackoisie.  The only way you get there is to make the active decision to jump in.  Every person has a choice to make, whether to put in that degree of thought and effort necessary to distinguish yourself from all the others at the bottom of the pyramid, or spend your days sitting on the couch in your parents’ basement, alone, thinking about how important you are and demanding on the internet that everyone respect you.

You can be in that 2% that Hull speaks of, the one that somebody would want in the foxhole with him.  You may need to stop emitting noise to your boss, as if your 12 minutes of hard work have entitled you to seize control of the enterprise that provides you with a paycheck, and listen and learn instead. 

Labor Day is a call to action, a day to consider that America was built on the hard work, the broken backs, the tireless effort, of your predecessors.  No, it’s not a pretty image, and it doesn’t lend itself to the inspiration that will make you feel confident that you will park that BMW in your two car garage of your suburban home.  But unless you’re shaken out of your complacency, your false comfort zone that somehow it’s all going to work out fine, both you and this country are going to crumble under the weight of crumbs left at the bottom of your Cheetos bags.

Look to your left.  Look to your right.  If you don’t see anyone there, then you need to stop playing with your computers and get your butt out the door to work.  Nobody is going to send you big checks for reading every submission to Fail Blog.  And nobody cares if you think you’re special.  Happy Labor Day from those good folks who worked hard so you can enjoy your day off.

A small war broke out among some of the law students who have enjoyed some recognition, at least amongst some of the younger lawyers, in the blawgosphere and on twitter.  The direct combatants are Huma Rashid, who writes The Reasonably Prudent Law Student, and does a (paid?) column for Carolyn Elefant on lawyer fashion at My Shingle, and Laura McWilliams, who blogs at Really? Law?, who fancies herself a feminist and advocate for women against domestic violence. 

The gist of the battle stems from comments left at Huma’s blog by someone purporting to be Laura, but who Laura’s sister (yet another blogger) explains is a hacker,  Huma accepts that Laura didn’t post racist comments to her blog, but recoils from Laura’s reaction to her anger as being “hate speech.” 

Much of this could be easily passed off as immaturity and typical narcissism, as otherwise natural online allies are at each other’s throats, certain that they’re more entitled than the other to be pissed off.  But Huma relates a part of the tale of woe/angst that transcends the particular battle.

At some point Laura, in justification of calling Huma’s statements hate speech, apparently told Huma that she should have known better than to believe that she would write racist comments:

As for the “you should have known it wasn’t me” argument, I’m afraid I should not have. In the words of the great Michael Scott, what part of shorn’t don’t you understand?

We do not know each other. We do not go to school together, we are not in constant contact, we don’t know anything about each other. Twitter and Facebook and our blogs just allow us to fool ourselves into thinking we do. I do not know anything about you, Laura, except that you are a law student, you’re very intense when it comes to studying law, and you’re passionate about women’s rights and committed to the fight against domestic violence.

You don’t know anything about me except that I’m a Muslim, a law student with a near-rabid interest in Labor law, an animal lover, and that I love steaks, root beer, cigars, and training dogs.

This lays a very harsh reality on the line.  When it’s all about hugs and kisses, or more to the point, the hope and expectation that some online pal will refer some business our way, we engage in the fantasy that we’re all close friends and colleagues.  It’s easy to do when there’s nothing at stake, and we all wrap ourselves in the dream of either personal gain or substitute relationships to fill the void of our corporeal existence.

But we don’t really know each other.  No matter what the social media gurus say, we are not close, dear friends.  This is the most superficial of connections, wholly lacking in depth and substance.  We see only the public face, the carefully crafted internet persona, the image of who we want to be.  This ain’t real, guys, any more than the happy man in the used car commercial really loves us.

It’s easy to hug and kiss, to support and coddle, to give constant pats on the back for pats in return.  When a dispute arises, however, it becomes painfully clear that this is a charade.  Now for the really bad news.  You aren’t as wonderful as your twitter-pals say, and they couldn’t care less whether you exist or not.  You are a transitory diversion, one of the many voices in the dark with whom to play when it’s convenient or serves their interest.  Aside from that, you don’t exist.  When they turn off their computer, you go blank just like the screen.

I read a fairly good number of blawgs, written by a cross-section of lawyers.  Some impress me with their content.  Others make me certain that I wouldn’t refer my mother-in-law as a last resort.  There are a fairly large number of blawg posts that leave me with the clear belief that their authors are not good lawyers.  There are a smaller, but not inconsequential, number that inform me that their authors are incompetent.  A few strike me as dangerous.

No doubt some may feel the same way about me, and that’s good, as others should view everything, and everyone, critically.  Otherwise, mediocrity thrives and excellence dies.  To the extent that online culture has any virtue, it depends on meritocracy.  There is no future in a blawgosphere of meaningless, self-promotional drivel.

Those who are either incapable of, or lack the desire to, create anything of value will be angered by this.  They’ve bought into the social media lie that all one needs to do is “authentically engage” while feigning interest in others to win friends and find wealth and success.  Just read the insipid comments and twits applauding mediocrity; people will demean themselves to no end to maintain the fiction of online friendship.  Until, as Huma points out, a problem arises, at which point it becomes brutally clear how superficial and inconsequential the relationship is.

And there’s another point Huma makes that needs to be heard.

You think calling someone a bigot for making bigoted remarks is hate speech? You think saying ‘fuck you’ counts as hate speech?

News flash: FUCK YOU.

Perhaps, if you really think that, you ought to be told to get fucked more often. Clearly, you’re in dire need of the shock.

It is incredibly shocking, not because we aren’t confronted with people who disagree with us in real life, but because in our digital fantasyland, we’re promised only love and support.  No one tells us we’re ugly or stupid here.  The “authentic engagement” is always happy.  There are fools out there arguing that we must conduct ourselves civilly toward each other, by which they mean invariably positive.  Nary a bad word toward others.

No one likes to be the recipient of Huma’s news flash, but it needs to be said.  And it needs to be said often enough that all the little teacups can take a licking and keep on ticking.  Some days, people say nice things to you.  Some days, people say mean things to you.  Some people will like you.  Some will hate you.  Some won’t care about you at all.  That’s how real life works.  

From the mouths of babes.

The cops were called because someone in the trailer park complained about noise.  Whether it was worth the life of Michael Sipes is another matter.  Radley Balko at the Agitator posts the story.

According to Sipes’ mother and others in the house, the police repeatedly knocked on the door to the home, but never identified themselves. They say both Sipes and his mother asked more than once who was outside. A neighbor who heard the gunshots also says he never heard the police identify themselves. Police officials say the officers did identify themselves.

According to those in the trailer at the time, as the knocks continued, Sipes retrieved a rifle, opened the door, and stepped outside. That’s when Morganton Public Safety Officer Johnny David Cooper II shot Sipes in the stomach “four or five times.”

MIchael Sipes appears to be a good kid, an ROTC member who planned to enlist in the Army.  When he opened the door with his new 22 caliber rifle in hand, it was likely just to be safe.  When Officer Cooper shot Sipes, it was likely just to be safe.  Everybody just wants to be safe.  It doesn’t always work out that way.

The key to this horrible story is whether Cooper, knocking at the door, announced that he was a police officer.  If so, as the cops claim, then Sipes’ opening the door with a rifle in hand was begging for trouble.  But this appears to not to be the case, it making no sense given that Sipes had no reason to challenge the officer and invite death.

[Public Safety Chief Mark} Tolbert said officers don’t have to announce their presence, but said it is the norm for Public Safety officers to identify themselves.

There’s a rationale for an officer knocking, but not announcing their presence.  If an officer announces his presence, a person inside can dispose of evidence or prepare to confront the officer at the door, even shooting through a door.  But this wasn’t a circumstance that gave rise to any rational basis for concern by Officer Cooper.  If he failed to announce who he was, as every other witness states was the case, then it was just a basic failure to do so.  There’s no justification for the omission.  But, as Tolbert says, they’re not required to do so by law or internal policy.

In the comments to Radley’s post, a question arose relating back to the statement in another situation, another post, that infuriated many.

[Philadelphia Police] Lt. Fran Healy, special adviser to the police commissioner, acknowledged that some city cops apparently are unfamiliar with some concealed-carry permits. But he said that it’s better for cops to “err on the side of caution.”

“Officers’ safety comes first, and not infringing on people’s rights comes second,” Healy said.

The reaction is that this is so utterly wrong as to be outrageous.  Whether one considers this from a pragmatic or ideological perspective is irrelevant.  It is the first rule of policing, get home for dinner.  I’ve written about this many times, and have yet to be told by a cop that he disagrees.  No police officer will risk his life to safeguard a civilian’s rights.  The first order of business for every police officer, as Lt. Healy candidly admits, is officer safety.

This holds true whether it’s the citizen who makes the critical error or the cop.  The linchpin in the killing of Michael Sipes was Officer Cooper’s failure to announce that he was a police officer.  Had he done so, Sipes would not have opened the door with a rifle in his hands, and instead would have gotten an earful about keeping the noise down.  It would have ended with Sipes saying, “Yes, Sir, It won’t happen again.”  Nobody gets hurt.

The law doesn’t require police officers to risk their lives.  Many of the exceptions to the Fourth Amendment are openly predicated on officer safety, the most obvious being a weapons frisk if an officer has a reasonable suspicion that a person is armed.  Joining the police department isn’t a suicide pact.  Nor does any reasonable person think it should be.

There are times when police officers risk their lives for others.  An officer may run into a burning building to save a baby, or confront an armed robber to prevent a bystander from being harmed.  And there are times when a police officer’s life is lost as a result.  Danger is inherent in the job, and that’s the risk they chose when they put on the shield.  But to the extent they can minimize the risk, you can bet your life they will.  No cop will knowingly allow his children to go fatherless if he has a chance to prevent it.

The failing here was clearly the officer’s failure to announce, and that failure is attributable to policy and training.  In light of what happened, there can be no doubt that a clear policy of announcing that a person is a police officer, in the absence of a reasonable justification to conceal that fact, would have prevented this tragedy.  With shocking frequency, stories of such tragedy involve a statement by the cops that the officer complied with department policy.

The solution is sound, thoughtful policy, designed to accomplish officer safety, public safety and protection of civil rights.  The problem here is that policy is established, too often to the extent it exists at all, without sufficient thought or concern for the latter two aspects.  Policy is developed for effective policing, officer safety and compliance with mandatory legal requirements.  There are occasionally other factors, like public relations, tossed in, but rarely does any police department give serious thought to how its policies give rise to potential problems or harm. 

I’ve no doubt that nobody, police or civilian, views the killing of 17 year old Michael Sipes as anything other than a tragedy.  Perhaps there will be a change of policy at the local level as a result, but it will be too late to help one young man.  Then again, chances are slim, really non-existent, that this tragedy will give rise to any police department engaging in a comprehensive review of its policies, with input by civilians whose concerns might transcend the easiest thing for cops and the  first rule of policing, to prevent it from happening again.

And don’t even ask about policy relating to high speed car chases, one of the most dangerous things cops can do when it comes to needless harm to innocent bystanders.  Police policy cannot be left exclusively in the hands of the cops, as they simply don’t see or care enough about the potential for harm to others.  Rather than rant about how cops put their own safety first, it would be more beneficial to address how cops just don’t think about the potential for needless harm to others when they could follow their first rule without needlessly sacrificing another 17 year old.

Now this took guts.  When my two dear friends, Carolyn Elefant and Niki Black  asked me to review their new book, Social Media for Lawyers: The Next Frontier, published by the ABA Law Practice Management Section, they knew they were taking a huge risk.  I’ve not always been kind toward the promotion of social media.  In fact, on occasion, I’ve been rather critical of its promotion as the magic bullet to success, or the do-or-die bandwagon.  Yet they asked, and even sent me a free review copy.  Guts.

The book is really quite exceptional, both in its scope and and its balance.  I feared that it would lead the cheer for internet marketing for law practices, a pit into which so many of the early adopters have fallen, blindly asserting that it you don’t strut down digital Main Street in hot pants, your future as a lawyer is dead.  Not so.  Not even close.

Social Media for Lawyers is a quick read and well written.  Rather than treating its readers as virtual idiots, talking down to anyone who can’t distinguish a youtube video from a twit, Carolyn and Niki speak to readers like respected colleagues who need to ramp up on technology.  Their tone immediately sets this book apart from other efforts, where undistinguished authors talk down to readers, as if their facility with social media trumps the fact that the reader has tried a hundred cases while the author was still in diapers.

The book takes the reader through the gamut of the social media experience, from the nuts and bolts of the various popular platforms to the practical and ethical considerations that invariably crop up.  It hits critical points numerous times, emphasizing, for instance, Eric Turkewitz’s invaluable point that “outsourcing marketing = outsourcing ethics.”

While the mechanical focus tends to be on extant technologies, always a dangerous thing given how quickly things change in social media, with new technology coming out of nowhere and popular social media disappearing overnight, the book provides a sound and timely primer for lawyers who want to dip their feet in the pool but fear that they’ll drown.  Even though some technologies may not be around in a year or two, and new ones will take their place, Social Media for Lawyers demystifies what may seem to be too complex or daunting for any lawyer who has sat on the sidelines up to now.

More importantly, the book debunks many of the social media marketing myths, providing a remarkably balanced view of the benefits and risks associated with social media.  Bearing in mind that readers are likely inclined to become involved in social media and have missed out on the formative years, Carolyn and Niki have tried to bring them up to speed on the etiquette, the relative efficacy of the various media and the landmines that could blow them to bits as they start out.  They’ve even included some random foreboding quotes from an old curmudgeon.

Their explanations are bit nicer, and less colorful, than mine might have been, but they’re in there and serve as a crucial heads-up.  With all the social media gurus scamming lawyers into believing that they push their way into social media prominence with a dollar and some bluster, Niki and Carolyn take some of the wind out of their sails and help lawyers to see the scams that will come their way.

And yet, the book isn’t perfect.  Quite troubling was the forward by Ari Kaplan, setting a tone that nearly scared me into throwing the book into midtown traffic and running like hell.  Kaplan’s forward reads like vomit from a drunken night at a social media marketer conference, stringing meaningless marketing jargon-words together in an embarrassing attempt to pass as thought.  This is either brilliant, in its juxtaposition with the valuable substance offered by the book itself, or a huge risk that no thoughtful lawyer will read beyond the foreword.

Then there’s Chapter 6, a standout in that it lacks the balance otherwise found throughout the book.  Entitled Goals: Networking and Building Relationships, the chapter unfortunately offers an unabashed suggestion that one can manufacture social media popularity by pretending to be “authentic”.  Some of its suggestions, like commenting on other people’s blawgs and including a link to one’s own, are roadmaps to unadulterated and intolerable self-promotion that are more likely to make someone a pariah on legitimate blawgs and amongst serious lawyers. 

Absent from Chapter 6 are the warnings, the countervailing concerns, that efforts to hype oneself unmercifully, sweetly called “networking”, that lawyers new to social media need to know.  It adopts the assumption that everyone is on board to market, and will be embraced by all the other marketing lawyers.  While this may fly in the Happysphere, it could have devastating consequences in the blawgosphere. 

Not every attempt to let your “personality shine through” will result in “camaraderie” that will “facilitate your professional networking relationships.”  Your personality is just as likely to get you a boot in the butt and destroy your online reputation in a flash.  This chapter needs a major reworking,

With those caveats, Social Media for Lawyers: The Next Frontier, offers a wealth of information and great advice.  Without a doubt, it stands hands above anything produced before it, as did Carolyn’s first book, Solo By Choice, which has become the bible for lawyers striking out in solo practice.  It would not surprise me in the least to find Social Media for Lawyers: The Next Frontier to do the same for lawyers who want to jump on board the social media bandwagon but were afraid to give it a try.  Read the book and go for it.  Just remember that there are sharks in the waters.