Dear Lee,

Congratulations on kicking the living crap out of Arizona’s anti-revenge porn law.  You did a great job getting it tossed. Like a boss, Lee.  Well done.

But Arizona’s law criminalizing revenge porn was fairly easy pickins.  It was so absurdly over-the-top that there really wasn’t much of a question, except to its advocates for whom no degree of unconstitutionality is enough to make them cringe.  It’s hard to see reason through the tears of advocacy, not that they would care anyway.

That’s not to detract from what you accomplished. The ACLU took up arms against a terrible law and crushed it. One bludgeon beating another.  I applaud you and your accomplishment. Continue reading →

Whether it’s a problem for us or them is the tacit heart of Orin Kerr’s fascinating question as to the limitations on seizures of digital evidence under a search warrant.  He does a great job of setting up the problem:

This article considers how the Fourth Amendment should limit the process of executing search warrants for digital evidence. Warrants for digital evidence are normally executed in two stages. First, agents enter the physical place to be searched and seize all computers. Second, agents conduct an electronic search for the responsive data described in the warrant. The two-stage process raises the prospect that warrants for digital evidence will be executed in ways that resemble general warrants. 

In the application for a search warrant, and in the warrant itself, there will be a description of the property to be seized together with a justification for why there is probable cause to do so.  The descriptions tend to be incredibly vague and backward, such as “all evidence of narcotics sales.”  Continue reading →

A friend called me a mean and hurtful name the other day: prolific.

Prolific. Like an all you can eat buffet. The food sucks but there is plenty of it. That’s me.

— Scott Greenfield (@ScottGreenfield) July 9, 2015

But that’s just me. I’m sure he didn’t mean to make me feel like that full chafing dish of eight hour old turkey tetrazzini.  I write. A lot. It’s what I do, my version of the dreaded “mindfulness,” if you will.

A lot of people (and I mean, a lot) either question me as to how I do it, express some degree of marvel at my output, or attack me as if I must spend all day and night doing this, because there is no way they could produce what I produce otherwise.  And even some friends smack me on occasion for writing too much: “I can’t read as much as you write. Would you just stop it already?” Continue reading →

Thinking back to the halcyon days when I went to college, the name by which we referred to the  campus police was “public safety” so that all of us would think of them not as law enforcers but as people in uniform who were there to help us.  Oh yeah, and they didn’t carry guns.

That’s all changed, as they are now police again, and well armed.  Like most college police, they have general law enforcement jurisdiction. When they arrest you, you go to real jail and real court.  When they shoot you, it’s with real bullets.  While we’re talking about rape and Title IX, nobody mentions the cross-over between the Disneyland of campus adjudication and the real world.  Except Ashe Schow.

Due process on college campuses has become passé, and even an impediment to justice — at least according to sexual assault activists. But police officers like Susan Riseling may be giving activists a leg up.

Riseling is the chief of police and associate vice chancellor at the University of Wisconsin-Madison, and recently told a conference audience that using the records from campus sexual assault hearings could be beneficial to police investigations.

“It’s Title IX, not Miranda,” Riseling said. “Use what you can.”

Continue reading →

As a student of the art of narcissistic rationalization, it’s often hard to divine what part of the religion of emotion drives otherwise ordinary people to feel compelled to put their feelz on display for all to see.  There is a bizarre belief, that such people ascribe to reason, that they are entitled to express their deepest feelings, coupled with the entitlement not to have anyone read what they’ve written and reply that they’re absolutely full of shit.

Go figure.  So when I stumbled upon a master’s thesis in narcissism, I took notice.  It began with a pedestrian effort in self-absorption.

I am tired of men thinking they are entitled to my attention because they find me attractive.

I am tired of men thinking I owe them something as a thanks for them finding me attractive.

I am tired of men reducing me to my attractiveness.

I am tired of being on display.

It goes on and on, its author apparently thinking very well of her own beauty. But it’s hardly new.  This gig was done by Lili Von Shtupp in Blazing Saddles, and Mel Brooks did a much better job of it.

Continue reading →

Soon after the subpoena was served on Reason Hit and Run for info about its commenters and their favorite brand of woodchippers, Ken White posted it at Popehat.  Everything then went dark, as the government obtained a gag order to silence Reason from disclosing anything about the subpoena.

Paul Alan Levy at Public Citizen wasn’t satisfied when the gag order was lifted, after news of the subpoena went viral.  That’s just not how Paul rolls, so he moved to unseal the papers.

I wanted to see the basis for requesting the gag order – the factual showings that supported its issuance – because the order itself was so cursory in reciting the statutory factors and saying that “one or more of [them]” was the basis for issuance. 

Velamoor’s initial response was unhelpful, but he later called me back to ask me to explain the legal basis for the demand; once he understood what the law is (and, presumably, he figured out that Public Citizen has a track record of litigating unsealing issues), he asked the court to unseal the application and sent it to me. 

Continue reading →

Nebraska Senior District Court Judge Richard G. Kopf tried something that no one else had tried before him. He tried to be real.  He tried to be transparent.  He tried to show us that the omnipotent people in robes sitting atop the bench were regular people, with foibles and ideas, doing the best they could. They had thoughts, feelings, aches, pains and happiness.

And I fear, this time he’s gone for good.  Watching the judge’s blog, he’s been through the highs and lows of the blawgosphere.  One little “STFU” to the Supreme Court and he had a bevy of lawprofs jumping down his throat.  But then, haven’t we all wanted to tell that to the Supremes at one time or another?

Then there was a misunderstood joke, a symbol of generational differences that many couldn’t, refused to get past.  What it showed was the inflexibility of so many on the internets.  Judge Kopf took it all in good humor.  If he showed nothing else, it was the humility of the power he wielded, never ramming the fact the he was a federal judge and you weren’t down your throat.

He ended every comment with the words, “all the best.”  It wasn’t that he had to, but he wished that to his fans and detractors alike.  Rich was a good guy. Continue reading →

It’s not that Congress doesn’t have a sense of humor.  After all, who else would think it’s a laugh-riot that defendants are acquitted after trial of a crime and get sentenced for it anyway and yet omit it from laws with names like the Smarter Sentencing Do It For The Children Act. But even Nino Scalia called bullshit when it came to the residual clause of the Armed Career Criminal Act.

In his opinion in Johnson v. United States, the Court raises a question that even law nerds struggle to embrace:

Under the Armed Career Criminal Act of 1984, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a “violent felony,” a term defined to include any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B). We must decide whether this part of the definition of a violent felony survives the Constitution’s prohibition of vague criminal laws.

Continue reading →

Maybe the press asked the wrong question when the subject was Anthony Graves’ murder conviction due to the misconduct of belatedly disbarred prosecutor Charles Sebesta.  What was the right question?

In October 2010, former Harris County prosecutor Kelly Siegler appeared at a courthouse press conference in Brenham and declared another prosecutor’s misconduct in a 1992 capital murder case “the worst I’ve ever seen.”

Compared to what?

A visiting judge has accused former Harris County prosecutor Kelly Siegler of withholding evidence in the murder case against David Mark Temple, who was convicted of killing his wife in 2007, and has recommended that Temple be granted a new trial.

Temple was a former football star turned high school coach, convicted of murdering his pregnant wife while having an affair.  Defended by Dick DeGuerin, Siegler was not inclined to risk losing. It was Continue reading →

This unsolicited email just arrived, and I can’t begin to tell you how excited it made me.

Scott,

I am very excited to announce the beginning of The Expert Institute’s first-ever best legal blog competition. From medical malpractice to intellectual property and criminal law, we’re creating the largest and most comprehensive ranking of legal blogs online today – and we want your blog to earn a spot on the list.

Everything you need to get started can be found here:

[Ed. Note: Link deleted because I can’t trust some of you yahoos not to use it.]

The best blogs will win well-deserved exposure to our monthly readership of more than 200,000 legal professionals, while the three blogs that receive the most votes overall will win cash prizes.

To participate, your blog needs to be nominated by your readers via the nomination form located on the page above. The nomination process is competitive, so the more nominations your blog receives, the more likely it is to be included in the contest. If your blog receives enough nominations, it will automatically be entered into the competition, at which point I will contact you with the good news.

Please feel free to reach out if you have any questions.

Best Regards,

Joe

—
Joseph O’Neill | Senior Associate, Marketing
E: [email protected] | P: 646-216-2339
75 Maiden Lane | Suite 704 | New York, NY 10038

Continue reading →