Welcome to Spamalot

The past two days have been trying. The next few are likely to be trying as well. Trying, as in the spammers are trying to get some backlink juice by deluging Simple Justice with comments, and trying, as in I’m trying to stop them.

Despite my belief that I’ve come to have a relatively firm grasp on how this blogging stuff works, I continue to learn. Note to new bloggers: There’s more to it than the marketers tell you. Over the past two days, I’ve learned how those who have come to the internet solely for their personal financial gain couldn’t care less about the damage they cause, like locusts on a corn field, and believe that they are entitled to take whatever they can get if it inures to their benefit.

The rationale is stunning, both in its simplicity and its arrogance. The source of my education, Angela, stopped by to argue her point :

Yeah, I think putting lists of links to sales sites in the middle of conversations is spammy, but I don’t see how using the blog’s “link set up” exactly the way it’s supposed to be used is “spam”. Is it “spam” SIMPLY because it benefits the commenter’s website? Who makes up the “spam rules” and decides what is and isn’t spam? What about a comment that benefits the website that the comment is on? Is that “spam” if the commenter used the URL set up that the blog allows? If the blog doesn’t want people linking to their sites, it’s easy to remove the URL feature.

I’ve had folks who are in my program find sites like this one that they LOVE and that they continue to participate on; I have brought traffic to many sites. How is that wrong? I LOVE sites about legal stuff, myself, so this blog truly interests me. I know I am not alone.

So you see, she’s doing me a favor. No, I didn’t ask her to do me a favor, but she’s such a great gal that she’s doing it for me anyway. “How is that wrong?”

It’s a variation on a theme, just like the blawg scrapers and the legal marketers. How is it wrong? Because it’s a lie, a fraud, a deception, an abuse of trust. If there is anything I stand for, it’s integrity. This isn’t the most popular notion these days, both in general and on the internet in particular. Everybody’s trying to find a way to game the system, justifying it as a way of making a buck as if financial gain trumps integrity. “But it’s good for me,” seems enough of an explanation to justify anything.

I apologize to the subscribers of Simple Justice comments who have been forced to endure this deluge of crap. Many have emailed me to urge me to use “no follow” in my comment links, and thus eliminate the purpose of our newfound friends. Unfortunately, my blogging program is so archaic that it won’t allow that option. I’ve asked GoDaddy to add it, and maybe they will. Some day.

But frankly, I’m not inclined to deny those who come here to legitimately comment from having a little link love. Helping real commenters to gain some recognition is fine by me, and to let these self-serving fools ruin it for everyone is a little like letting the terrorists win. Why should real readers and commenters suffer because of these scum?

In the meantime, I’m left to delete the hundreds and hundreds of comments left by Angela’s customers, some of whom have fought hard to pretend they weren’t backlinkers, going to great lengths to try to perpetrate their fraud. Don’t fall for it. The nature of liars is that they lie. But this takes a great deal of time, and eats up the time I would otherwise spend writing posts.

Hopefully, the scum will go away soon, once they realize that the scam won’t work here. Until then, I beg your indulgence and will keep my finger on the delete button.

Maricopa Meets Legal Blog Watch

When I started this blawg, Carolyn Elefant and Bob Ambrogi shared duties at Law.com’s Legal Blog Watch, a daily survey of interesting stuff happening in the blawgosphere. Both are now gone. Bruce Carton was brought in to replace Carolyn, and Eric Lipman later came aboard to fill Ambrogi’s loafers.

Bruce was already a known quantity in the blawgosphere. Navigating the blawgosphere isn’t easy for newcomers. It takes a while to understand who’s who and what’s what. Because of his experience here, Bruce hit the ground running, introducing some new ideas of his own, combining wit with a depth of understanding of the blawgosphere that only comes from experience.

So who is Eric Lipman? His bio at Legal Blog Watch tells little:

Eric Lipman is a lawyer, for sure, and fancies himself a writer as well. He was a litigation associate with Cahill Gordon & Reindel in New York for six years, completed a one-year clerkship with the Hon. P. Kevin Castel in the U.S. District Court for the Southern District of New York, and spent two-plus years as a legal analyst with Bloomberg LP, focusing on antitrust, M&A, corporate and securities issues.

Does he have a blawg of his own? Has he ever? Did he know the blawgosphere existed before he got this gig? Good questions, no answers. In his introductory post, he says that he likes to write, did a guest post, and is an unapologetic law geek. What he doesn’t say is that he knows anything about the blawgosphere. The bio sounds more appropriate for Above the Law than Legal Blog Watch, but it’s unclear whether he could sing well enough to win ATL Idol.

Having followed Lipman’s posts daily, and often finding them a bit disturbing both in their lack of purpose, strained humor and dubious understanding of the blawgosphere, generally considered a negative for someone purporting to be watching blogs, it became clear to me that Lipman didn’t have a firm handle on the blawgosphere. This hit home hard when he posted about Sheriff Joe Arpaio, the bane of Maricopa and the Constitution, the other day.

Via the ImmigrationProf Blog, I found this Washington Post article on Maricopa County (Ariz.) Sheriff Joe Arpaio. For those of you who’ve been living under a rock heavier than the one I just recently managed to dislodge, Arpaio is the head law enforcement officer for the county that includes Phoenix, and has for quite some time been the subject of much controversy.

Arpaio has designated himself “America’s Toughest Sheriff,” though according to the Post, he pronounces that final word “SHUR-ff,” which is kind of awesome. His initiatives run the gamut from the gimmicky but pretty harmless, like forcing inmates to wear pink underwear (now available to the public), to the arrogant and arguably improper, like deciding to crack down on illegal immigration when and how he feels like it, regardless of what the federal government has to say about it.

This introduction to the post made it clear to me that Lipman was clueless. The blawgosphere has been on Arpaio like flies on, well you know, and Lipman knows absolutely nothing about it? His post goes on to mention the pending federal grand jury investigation, in the course of using it for some cheap laughs.

What about Adam Stoddard? What about indicting Judge Donahoe? What about everything that’s been written about Arpaio over the past few months making this one of the most serious issues of constitutional dimension in the country? Nada.

My bet is that Eric Lipman is a great guy and possibly a decent writer. It would probably be fun to sit down with him and have a beer (he pays). But what the heck was John Bringardner thinking when he hired a guy to write about the blawgosphere when he can’t even find the blawgosphere?

In the interest of accuracy, maybe he should take a page from Dan Hull and add a question mark to the end of the name: Legal Blog Watch?

Revenge of the Pelicans

Pelican was one of the derogatory terms used to describe private lawyers who represented indigent defendants under New York’s 18b law. It comes from their appointment by the Appellate Division (appellate= pelican), New York’s middle appellate court. While clients haven’t always shown respect for their Pelicans, whether because people don’t respect that which comes free as they perceive it to have no value, or because they ended up with one of the losers on the panel, the Pelicans endured.

Facing extinction, the organized private criminal defense bar is faced with the most significant challenge ever presented. Genay Leitman, President of the New York Criminal Bar Association, the Manhattan flavor, has risen to the challenge. She’s held a number of meetings, with a clear focus on her constituency, the private criminal defense bar, and an even clearer understanding of her mission. While the outcome, a resolution by the NYCBA denouncing the RFP and determining the viability of a suit to stop it, may have the scent of camel to it, an unfortunate by-product of the weakness of group decision-making, she’s done a excellent job of herding cats.

At the same time, the Queens County Criminal Bar Association has been collecting $500 per member to launch a suit against the City to stop the RFP, and seeks the involvement and support of the other associations and lawyers across the City.

As a result of these efforts, the National Association of Criminal Defense Lawyers has come aboard, issuing its own statement in support:

Criminal Defense Bar Sounds Alarm Concerning Uninformed,
‘Radical’ Changes to New York City’s Indigent Defense System

WASHINGTON, DC (March 1, 2010) – The Mayor’s Office of the Criminal Justice Coordinator for the City of New York issued a request for proposals in February, with a short March 15, 2010, deadline, that contemplates a sudden and severe change abolishing the role of appointed assigned counsel in the City’s indigent defense delivery system. The National Association of Criminal Defense Lawyers (NACDL), through its indigent defense project, is concerned that without adequate study, consultation and public hearings, such a significant disruption in the manner by which indigent defense counsel is provided in the City of New York may contribute to, rather than ameliorate, a system already at the breaking point.

At its quarterly meeting last week, NACDL’s Board of Directors passed a resolution opposing any swift change to the city’s current, balanced indigent defense system and urged studies, consultations, and hearings on any such proposed changes. The board resolution points out that in connection with any proposed change to the current system, it is critical to examine matters such as excessive caseloads, compensation, protection against conflicts of interest, training for lawyers and proper oversight.

“Any significant change to the indigent defense system in the City of New York, particularly one as radical as that now being contemplated by Mayor Bloomberg’s office, should come only after careful study, consultation and hearings,” explained William P. Wolf, a Cook County Assistant Public Defender in Chicago and co-chair of NACDL’s Indigent Defense Committee. “This is about much more than a budget line item in a challenging economic environment. What’s at stake are the well-established constitutional rights of the rapidly growing ranks of poor persons and the unambiguous constitutional responsibility of New York to ensure that indigent persons accused of a crime enjoy their Sixth Amendment right to effective assistance of counsel. It is critical to acknowledge that increasing defender caseloads will lead to overworked lawyers and increased risk of conviction for the innocent, a cost that society cannot afford.”

Added NACDL President Cynthia Hujar Orr, “Across the nation, we are witnessing a deeply troubling squeeze of constitutional dimensions on already overburdened indigent defense delivery systems. In all their forms, programs everywhere are in a state of crisis with overwhelming demand and unacceptable cuts in resources. Mayor Bloomberg’s proposal to abolish the role of appointed counsel in the City of New York, in what has historically been a dual system that relied on both the private bar and public defender offices, without the benefit of any serious investigation and public discussion, risks degrading further an already overburdened system.”

NACDL, the nation’s largest criminal bar association, urges the City of New York not to change course without a meaningful study of the proposed changes, including substantive consultations and hearings exploring the range of critical issues implicated by the proposal.

While I’m not generally a fan of studies, this is a calculated move to both appeal to the City’s fear of moving forward without adequate recognition of the unintended consequences of its RFP, as well as a way to delay its implementation so that the defense bar has time to marshal its forces to oppose this ill-conceived move. In this instance, it’s the right move and the best move.

Notably, the NYCBA is the New York City affiliate of the NACDL. But what of the state affiliate, the New York State Association of Criminal Defense Lawyers? While everyone else saw their purpose clearly, the NYSACDL was busily squabbling within itself, ever-fearful of offending anyone or taking a stance on anything. While President George Goltzer tried to spin it to the members that he had some material role in Genay’s meetings, the plan was to have yet another discussion at a retreat to be held next weekend. Not that it is on the agenda, but it will be the primary topic of discussion around the bar.

While the rest of the organized private criminal defense bar has mobilized, the NYSACDL still can’t figure out which side it’s on. But at least it will have a getaway weekend to drink about it on the members’ dime, a smart move considering that the members may not have many dimes left if the RFP goes through.

Gag Me, Gag Me Not

John P. Galligan, a former Colonel in the United States Army, has taken on the task of defending the Fort Hood Shooter, Maj. Nidal Hasan. It’s a capital prosecution against a widely vilified defendant. Who better than the former Chief Circuit Judge, 3rd Judicial Circuit, Fort Hood, Texas to stand beside the defendant.

For the younger criminal defense lawyers out there, Galligan’s representation of Hasan reflects the best of our profession. It’s not about his personal definition of justice, but about his duty to his client. And this duty led him to a place where few would go: Galliigan has started a blawg, called Fort Hood Attorney, in the face of a gag order against him, and only him. Galligan explains:

Finally responding to a request for disclosure of evidence that had been filed in early December, the US Army agreed to provide Defense Counsel with the type of evidence that is routinely made available in other cases. The release of information, however, is subject a “gag order” issued by the Special Court-Martial Convening Authority, Colonel Morgan M. Lamb, which prohibits the Defense from inadvertently or purposefully ”divulging, publishing, or relealing, either by word or conduct” the belatedly disclosed information. Needless to say, Army prosecutors have had access to this same information for the past several months. The belated disclosure to the Defense and the accompanying “gag order” is evidence that the pretrial discovery process is not being conducted on an even playing field.

It’s unlikely that many will feel particularly sympathetic to Hasan, and it’s unclear whether there is any reason why they should. But that changes nothing for John Galligan. He’s got a job to do, and he clearly means to do it.

Whether the content of the blawg violates the gag order, and whether the gag order is sustainable, are matters beyond the information available. What is available is the fact that Galligan, staring the gag order in the face, chose not meekly acquiesce to his client’s detriment. He didn’t post a question on a listserv to seek support and approval from others. He didn’t lay down. By creating this blawg, John Galligan made clear that his duty is to zealously represent his client, and that the villification of Hasan in the media requires some degree ot leveling the playing field, whether the Army agrees or not.

John Galligan is unapologetic for being Nidal Hasan’s defense lawyer, and is clearly willing to face the consequences for doing his job well. It’s easy to say that his fortitude is inspirational, when you read about Galligan from the safety and comfort of an office chair. But can you take it with you into the courtroom and, the next time a judge or prosecutor tries to push you into dividing your loyalty between your client and your personal safety, stand up and show the judge that you have the guts that John Galligan has?

H/T ABA Journal

A Better Class of Spam (Update)

My normal morning routine is to go through my emails, see whether any comments were posted since the computer was shut down the night before, and delete the spam. I expect to receive a bunch of spam comments overnight, typically with names more common in Bangalore than New Jersey.

The spam industry has flourished, due to the bizarrely mistaken belief that someone who leaves a completely nonsensical comment on a blawg will likely get a few people clicking on their name to get to their website offering male enhancement drugs, plumbing services in Des Moines or a DUI lawyer in Orange County.

This morning, however, something relatively new and different happened, worth a few minutes to write this post and put it out there for others. There were more than a hundred spam posts. This, in itself, is neither new or even a record. One day I had more than 500. But today’s were different. Sure, there were the typical crap comments, but only a few. The bulk were, well, special.

The comments received had two rather extraordinary characteristics. First, each comment included a name that corresponded to the email (invariably a gmail or similar account). Names are typically part of the advertisement, with something like “Montana Sheep Farmer” and an email of “shakirpunjab @ bangaloreseospecialists.com.” Not this time. The names and emails matched.

The second characteristic was that the comment was substantive. They would reflect a meaningful reaction to the post, using proper grammar and, in many instances, insightful. Sure, some were crappy, as one would expect, but many were awfully good. Whoever was doing this was putting an enormous amount of effort into it. This was a far better class of spam than I had ever see before.

And it just keeps coming. As I’ve been attempting to post this morning, new spam comments just keep rolling in every few minutes. They continue as I write this post.

While I have no choice but to delete and block them all, I have to admire the diligence employed. They still offer nothing of value to the marketer, unless you’ve come here with a yearning desire to find sleep aids (as if my posts weren’t sufficient), but they show a persistence and degree of effort that surpasses all prior efforts.

How long this will last, and whether I will get the free ten minutes needed to write a real post, I don’t know. But welcome to the newest breed of spam, and the latest threat to a substantive blawgosphere fighting the tide of internet marketing.

Update: I received an email letting me know that the spate of spam that started today is because SJ was “included this month on a backlink packet sold by a woman named Angela,” and that I should anticipate the spam to keep flowing for a while. I assume that this “Angela” refers to , who is in the business of selling backlinks to improve SEO page rank.

For those who feel that they are entitled to spam the internet for their own self-promotion, do you wonder why those of us who actually provide the content might not think it’s no big deal? Going forward, any lawyer links that are used in these spam comments will be outed with extreme prejudice. Needless to say, I do not find this waste of my time funny.

Nothing To Try

A criminal trial is a platform for the introduction of evidence by the government against an individual who pleads not guilty. Or so one would think. Via Grits for Breakfast, this apparently is no longer the case in Texas, where the Texas 5th Court of Appeals held that the prosecution is entitled to a trial even where the defendant has pleaded guilty to all charges against him. From the Collins County Observer :

“[T]he Court of Criminal Appeals long ago concluded that defendants accused of felony offenses have a constitutional right to trial by jury, but do not have a constitutional protected right to waive trial by jury.” Citing an earlier case opinion that said, ““As a matter of Texas constitutional law, an accused has an absolute right to trial by jury…but neither a historical nor express right to have a felony accusation tried by the court, sitting without a jury can be found.”.

The appeals court then found that, “The trial court abused its discretion when it allowed Blackburn to enter guilty pleas and waive jury trial without the prosecuting attorney’s consent.”

This is a stunning misapprehension of law, even for Texas. While the notion raised by the prior ruling, that the defendant’s constitutional right to a trial by jury, one expressly stated in the Constitution, compels an equivalent right by the government to demand a jury trial where the defendant has chosen to waive it, is controversial, the decision raises the ante to a level that wholly disconnects the concept from reality.

The defendant, Robert Lee Blackburn, was charged with four felonies after biting a police officer while being arrested for possession of cocaine. He offered to plead guilty, and after making inquiry, Visiting Judge John McCraw accepted the plea over the objection of Rolater, the Chief of the District Attorney’s Appellate Division. Rolater accused Judge McCraw of conducting a bench trial.

The Judge responded saying, “Sir, I’m not conducting a bench trial. I’m accepting his constitutional right to enter a plea before the Court. I would submit the United States Constitution allows a defendant the right to enter a plea based on the Court’s request and to avoid needless four jury trials and have at least a couple of hundred county citizens come forward [as potential jurors, (ed.)] and waive their right to make any type of living that day and costing the county some $5,000 per trial. I don’t understand why the State is refusing to allow the defendant… to enter a plea of guilty.”

By pleading guilty to the charges against him, a defendant does not waive a jury trial, but ends the controversy. That there is no need for any trial, including a jury trial, is a by-product of there being no controversy to try. Trials resolve issues of fact. Once a defendant pleads guilty, there is no issue of fact to resolve. No issue, no trial. It’s not a hard concept.

The Texas decision confuses the rights afforded an individual with the authority granted the state, an unfortunately common conceptual error committed by courts that are blinded by a desire to achieve an outcome. While the defendant has the right to plead not guilty, and thereby place the burden on the state to prove his guilt, the state has no equivalent right to reject a plea to the charge and thereby for the defendant to go to trial. The idea is absurd. The state has no right to anything.

Notably, this case doesn’t involve a plea bargain, but rather a plea to the charge(s). What that means, for non-criminal defense lawyers, is that the defendant has chosen to plead guilty to the charges levied against him, without any reduction in grade, reduction in number of charges, or agreement as to sentence. The defendant is fully exposed to whatever sentence the law allows. He has, in a sense, given up completely. Whether it’s a good move isn’t the point. It’s the defendant’s choice, and he has chosen to give up.

To my knowledge, this is the first instance of a court telling a defendant that he has no right to end the controversy and plead guilty to the charges, dismissing the defendant’s right to do so in favor of the prosecution’s “right” to a jury trial. According to Bill Baumbach at the Collins County Observer, a possible motive behind the prosecution’s shenanigans was judge-shopping, with the locals discontent with the defendant being sentenced by the visiting judge.

The problem isn’t that the prosecution wasn’t happy with how things transpired, although one might hope that the prosecution’s zeal would be slightly inhibited by the limitations imposed by the Constitution. The problem is that an appellate court approved.

A minor setback for the Constitution and reason? Perhaps, but if you’re looking for comfort and a good, well-reasoned reversal from the Court of Criminal Appeals, home to Sharon “Killer” Keller, you may be disappointed.

Taking a Breather

There are probably no less than a half dozen posts floating about my keyboard this morning, but I’m not going to write them or post them. I’ve received a few complaints lately from my fellow blawgers that (1) I write too much for them to read and (2) I post about all the good stuff and leave nothing for them to post about.

I apologize. I don’t mean to be a burden or to steal your thunder. I will stand down today and give anyone who wants it a chance to catch up and, if you’re so inclined, get ahead.

But since I’m not going to post about anything in particular today, I’ll take the opportunity to muse a bit. One thing I don’t understand is why people who say they don’t care about something still feel compelled to offer a comment about it. If you don’t care, why bother? If it doesn’t matter to you, or you’re sick and tired of the subject, or it’s just not interesting, then why not move on? Yet some people still post a comment to the effect that they don’t care, it doesn’t matter or it’s not interesting. Why? I doubt anyone has a gun to your head forcing you to post something.

It seems to me that posting a comment requires a bit of effort. There are plenty of posts out there on a wide range of topics and issues. There must be something out there that’s interesting to you, or meaningful to you. Post your comment there if nothing here strikes your fancy. But why bother to exert even that minimum effort to post a comment that says nothing, or expresses your lack of interest or thought, or your having absolutely no position on the matter?

I don’t get it. Explain?

And as long as I’m musing, and while I really didn’t plan to harp on the subject of the Slackoisie, which has gotten far more attention than I meant to give it lately. Seth Godin posted this today, entitled I don’t feel like it.

Why do you need to feel like something in order to do the work? They call it work because it’s difficult, not because it’s something you need to feel like.

Very few people wake up in the morning and feel like taking big risks or feel like digging deep for something that has eluded them. People don’t usually feel like pushing themselves harder than they’ve pushed before or having conversations that might be uncomfortable.

Maybe I’m not the only “jerk” on the internet who doesn’t think that we only have to serve our clients when it’s convenient, makes us happy or conforms to our personal sense of work/life balance? Godin is pretty good company. So good that he doesn’t even know that a poor schlep lawyer named Greenfield has a blawg.

Glad I decided not to post anything today.

A Slackoisie Litmus Test

The discussion of the Slackoisie has left some to question its definition; Are you a member of the Slackoisie? Via Amy Alkon, who has recently invoked their wrath, comes this exchange between NYU Professor Scott Galloway, founder of e-tailer redenvelope, and a potential student.

Sent: Tuesday, February 9, 2010 7:15:11 PM GMT -08:00 US/Canada Pacific Subject: Brand Strategy Feedback
Prof. Galloway,

I would like to discuss a matter with you that bothered me. Yesterday evening I entered your 6pm Brand Strategy class approximately 1 hour late. As I entered the room, you quickly dismissed me, saying that I would need to leave and come back to the next class. After speaking with several students who are taking your class, they explained that you have a policy stating that students who arrive more than 15 minutes late will not be admitted to class.

As of yesterday evening, I was interested in three different Monday night classes that all occurred simultaneously. In order to decide which class to select, my plan for the evening was to sample all three and see which one I like most. Since I had never taken your class, I was unaware of your class policy. I was disappointed that you dismissed me from class considering (1) there is no way I could have been aware of your policy and (2) considering that it was the first day of evening classes and I arrived 1 hour late (not a few minutes), it was more probable that my tardiness was due to my desire to sample different classes rather than sheer complacency.

I have already registered for another class but I just wanted to be open and provide my opinion on the matter.

Regards,
xxxx

—
xxxx
MBA 2010 Candidate
NYU Stern School of Business
xxxx.nyu.edu
xxx-xxx-xxxx

The professor’s reply:

From: To: “xxxx” Sent: Tuesday, February 9, 2010 9:34:02 PM GMT -08:00 US/Canada Pacific Subject: Re: Brand Strategy Feedback
xxxx:

Thanks for the feedback. I, too, would like to offer some feedback.

Just so I’ve got this straight…you started in one class, left 15-20 minutes into it (stood up, walked out mid-lecture), went to another class (walked in 20 minutes late), left that class (again, presumably, in the middle of the lecture), and then came to my class. At that point (walking in an hour late) I asked you to come to the next class which “bothered” you.

Correct?

You state that, having not taken my class, it would be impossible to know our policy of not allowing people to walk in an hour late. Most risk analysis offers that in the face of substantial uncertainty, you opt for the more conservative path or hedge your bet (e.g., do not show up an hour late until you know the professor has an explicit policy for tolerating disrespectful behavior, check with the TA before class, etc.). I hope the lottery winner that is your recently crowned Monday evening Professor is teaching Judgement and Decision Making or Critical Thinking.

In addition, your logic effectively means you cannot be held accountable for any code of conduct before taking a class. For the record, we also have no stated policy against bursting into show tunes in the middle of class, urinating on desks or taking that revolutionary hair removal system for a spin. However, xxxx, there is a baseline level of decorum (i.e., manners) that we expect of grown men and women who the admissions department have deemed tomorrow’s business leaders.

xxxx, let me be more serious for a moment. I do not know you, will not know you and have no real affinity or animosity for you. You are an anonymous student who is now regretting the send button on his laptop. It’s with this context I hope you register pause…REAL pause xxxx and take to heart what I am about to tell you:

xxxx, get your shit together.

Getting a good job, working long hours, keeping your skills relevant, navigating the politics of an organization, finding a live/work balance…these are all really hard, xxxx. In contrast, respecting institutions, having manners, demonstrating a level of humility…these are all (relatively) easy. Get the easy stuff right xxxx. In and of themselves they will not make you successful. However, not possessing them will hold you back and you will not achieve your potential which, by virtue of you being admitted to Stern, you must have in spades. It’s not too late xxxx…

Again, thanks for the feedback.

Professor Galloway

Who’s right?

The Vagaries of Cultural Evil

Whenever one has his fill of optimism and hopefulness for mankind, just stop by Crime & Consequences for good, hard slap in the face. Bill Otis does it again in his preview of the argument over honest services fraud, 18 USC 1346, as the Supremes prepare to hear the case of former Enron CEO, Jeffrey Skilling, this week.

It’s not that anyone speaks well of Skilling, and (as Otis notes) his conviction for honest services fraud is but one of the crimes of which he stands convicted, meaning that he’s unlikely to walk free regardless of the outcome of this case. But the Supremes have already made it abundantly clear, during the arguments in Conrad Black’s and Bruce Wehyrauch’s cases that the statute is so vague as to give no clue what’s conduct falls within its purview.

Otis proclaims that the big issue isn’t legal, but cultural. We are a culture of liars, cheaters, fraudsters and deceivers.

The subtext of the Court’s questioning in Black and Wehyrauch was that people can’t really know when they’re trying to pull a fast one that could get them in trouble with the law. But evidence in those cases and even more so in this one proves otherwise. Indeed, it illustrates the truth the government’s brief seems unwilling to speak, namely, that people know full well when they’re cheating. Employees by the million may well spend worktime messaging on Facebook or looking at the porn site or the betting odds.

But that such behavior is widespread scarcely shows, or even suggests, that it’s honest or that anyone thinks it’s honest. It is precisely because it’s known to be dishonest that the instantaneous mouseclick when the boss shows up at the door has become an American artform. Thus the Court’s real objection seems to be, not that the statute is too broad for people to know what is forbidden, but that the culture has come largely to accept this “slightly forbidden” behavior, and that a statute making it potentially a federal felony is not so much too vague as it is too sweeping and too harsh, given what in today’s world is accepted as grounds for getting docked a pay’s pay, or at worst getting fired, but by no means going to federal prison.

His first point, that we have lowered the bar of integrity, is hard to dispute. But do we really know it to be dishonest? Otis believes so, and that we are either lying to ourselves or to the government as we engage in ” ‘slightly forbidden’ behavior,” knowing that we are cheating but unprepared to accept that it’s wrong enough to warrant serious sanction.

Otis, on the other hand, rejects our cultural excuses. Cheating is cheating, and in his eyes, we all know it and deserve whatever we get. Unfortunately, he fears our weak Supreme Court to be a part of this diseased culture of cheaters.

That the Court is inclined to accept the culture of which it is a part is not exactly surprising. But at a deeper level, it’s ominous. That’s because the culture the Court is accepting is a culture of deceit. We are drowning in slick talk and slick dealing. It’s everywhere from “teaser” rates to liar loans to the razzle-dazzle fine print in your frequent flier statement, your car repair warranty and your credit card bill. Your e-mail is bulging with offers ranging from half-truth come-on’s to outright swindles. You can’t watch TV for 20 minutes without hearing some miraculous offer to “fix” your credit, all followed up by some fellow who races through the real terms in a voice so fast and low no human ear could understand it.

For Otis, it’s the “broken windows” theory of honesty. He, as is clear, has appointed himself as the arbiter of honesty, as well as the seer of our cultural intent. He knows what evil lurks in our hearts, and as you click on Youtube at work, he knows of the criminal lust in your heart.

The law is a moral teacher, and for good or ill the Supreme Court, its Constitutional limitations notwithstanding, has become our National Council of Elders. The Court probably knows that our society could use a lesson in the need for telling the truth. But even the most powerful instrument of law has little chance of rescuing respect for honesty from a culture that has so thoroughly marginalized it. The country most in need of an enforceable requirement for honest dealing in everyday life is the country least likely to achieve one.

Lie, cheat and steal. When Harvey Silverglate wrote three felonies a day, he wasn’t just trying to scare us, but to warn us. That it’s too much even for the Supreme Court to have laws that leave it up to the sour-faced school marms like Bill Otis to provide our moral guidance upon pain of federal imprisonment says a lot.

Honesty is a cultural problem, and we have become too tolerant of deception, excused as mere puffery in our quest to make a quick buck or have an easy life. But the solution to banal dishonesty isn’t to criminalize our every dubious move and send everyone to prison. And while we would do better with a culture that admires, even rewards, integrity, it’s hardly so bad that we’re about to fall into the abyss.

It may bother Bill Otis far more that someone is “getting away with something” in some cubicle somewhere than that we have a vague law that presumes that we all know when we are cheating, and hence that we deserve whatever we get. Thankfully, it doesn’t appear that the Supreme Court is ready to hand the government a statute that would enable the prosecution and imprisonment of essentially anyone for failure to live up to Bill Otis’ standards.

Of course, Congress did pass it, and the President did sign it, so don’t think that Bill Otis’ nasty vision of Americans as criminals all can’t happen again.

Downfall Meets Law Review

Sorry. Have no choice. Too funny, This one is for all the lawprofs out there. You are not alone.

Best line: “It’s OK. He won’t really go back to private practice.”
Second best line: “Or I could start my own blog.”

H/T Dan Markel at PrawfsBlawg