One of the difficult questions in publishing something on the interwebz is what to include, what not to include, whether to name names, link links, include pics or let something go.  As Avvo’s Mark Britton pointed out to me a few years ago during a lunch (he paid) in Florida, do I really want to call someone out here and cause them tsuris, if not real harm?

It’s a matter of editorial discretion, as Nancy Leong notes.

Over the weekend, an online magazine made a very poor editorial choice. A writer for the magazine wrote a piece about the proper use of the term “bro.” The piece included the sentence: “And I just don’t think the diminutive label of ‘bro’ should be to describe more insidious sexism, let alone violent aggression like rape threats.” The words “rape threats” were hyperlinked to a single tweet by a female journalist.* The tweet was addressed directly to another person on Twitter, in which the journalist had used a variant of the word “bro” in briefly alluding to rape threats she had received. (For non-Twitter-users: when a tweet begins with the “@” symbol and the username of another person on Twitter, only the sender and recipient of the tweet, and any people who happen to follow both users, will see the tweet. Other people can then find the tweet, which is technically public, but doing so requires a specific search.)

Putting aside the question of whether the “proper use of the term ‘bro'” is worthy of a serious magazine article (it’s not, but who cares?), this is a prelude to Nancy’s point: while it may not be a free speech issue, was it an abuse of editorial discretion to include a link to a twit that was otherwise relevant to the issue but involved rape threats that wasn’t directed to the author of the article, didn’t involve a specific individual in the article and was an @ twit? Continue reading →

One of the great ironies noted over and over is how ignorance, from the perspective of law enforcement, grants far greater latitude to do damage than knowledge.  Whenever someone ponders why the cops don’t exercise restraint, patience, or conduct a thorough investigation before pulling out all the stops, it’s the incentives built into the system.

Matthew Heller found out the hard way.

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Old guy in the cell: What are you in for?

New guy in the cell:  I aged cheese on wooden boards.

Old guy: Oh. (Moves away slowly.)

The news broke on CNN that a Utica child, Sally, had fallen ill after eating some cheddar on her well-done burger. Her parents were interviewed, mother crying and father angry. “How?” he yelled.  “How can they let a child get sick because of cheese?”  The mother added in a soft, quiet voice, “we have to stop this so no other mother has to suffer watching her baby suffer the agony of a tummy ache.  We have to do this for the children.”

From Walter Olson at Overlawyered, the FDA has interpreted the Food Safety Modernization Act to preclude the aging of cheese on wood boards.  Much as you may not think this touches your life, it does if you happen to enjoy any better cheese than velveeta. From CheeseUnderground:

A sense of disbelief and distress is quickly rippling through the U.S. artisan cheese community, as the federal Food and Drug Administration (FDA) this week announced it will not permit American cheesemakers to age cheese on wooden boards.

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Our first Toyota Prius was a 2006, bought largely by default.  Dr. SJ had no clue what type of car she wanted, but being environmentally-minded, and hating to fill the tank, she went for it. She called it the Pod, because, well, it looked like a pod.  The car, not Dr. SJ., who looks fabulous.

About an hour after the warranty expired, the left headlight died.  Well, that can happen, I thought, and so we brought it to the dealer who was more than happy to change it.  Almost gleeful, really.

I would have done so myself, but it had this pointless shroud covering the front of the engine, and Dr. SJ falsely doesn’t think I fix anything without breaking something else.  Mind you, her father was the king of duct tape, but he’s special. Continue reading →

Here’s another dirty little secret: the legal system can’t accommodate the world of online commerce.  Do business on the internets with someone in another state and get screwed?  Sorry, pal.

If you use paypal or a credit card, you have their dispute resolution mechanisms available, but if that doesn’t work out for you, your options suck.  It’s left to some kids in a backroom somewhere to decide whether you “win or lose” the dispute based upon whatever strikes their fancy.  The guy who came up with the paypal system took it outside with a start-up called Modria.  It’s not a good system.

In a comment to a post at My Shingle about why lawyers aren’t more affordable, Lance Soskin jumped in to promote another start-up online dispute resolution biz, eQuibbly, headquartered in Canada.  Despite my knee-jerk dislike of promoting business in other people’s comments as cheap and tawdry, my interest in online dispute resolution compelled me to check it out. Continue reading →

Via Dan Hull at What About Paris?, ProPublica has an exceptional story about the man behind the wrongful conviction of Jonathan Fleming, who was released after serving 24 years of a 25 to life sentence upon the revelation that the Brooklyn District Attorney’s office withheld Brady evidence proving he was in Orlando when the murder happened.  That man was James Leeper.

Interviews with an array of current and former Brooklyn prosecutors, his adversaries in the defense bar, and at least one former Brooklyn judge have uniformly produced glowing testimonials to Leeper’s skill, compassion and integrity. People, even those with unflattering views of Leeper’s longtime boss, former District Attorney Charles J. Hynes, and the office he ran, find it close to impossible to accept the fact that Leeper knowingly hid vital evidence in a murder case.

“He was universally thought of as a model prosecutor,” said Dan Saunders, now a Queens Deputy Executive Assistant District Attorney, who once worked with Leeper in the Brooklyn District Attorney’s office. “You’ll hear that from everybody. He was a trustworthy and reliable guy. The kind of guy you want to entrust with the difficult work of being a government prosecutor. I hope people say something like that about me one day.”

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Mark the name United States v. Osinger.  It’s going to be the flagship opinion to prove that the anti-revenge porn laws aren’t unconstitutional. I blame my buddy, Venkat Balasubramani for this, because he wrote a post about this interesting decision that included a portion that created confusion in some dicta in the opinion. And, well, that’s all it takes for a myth to be born.

Osinger was prosecuted for cyberstalking under 18 U.S.C. § 2261A.  Among the things he did was create a phony Facebook page for his ex-girlfriend and post grossly inappropriate photos.  He sent emails to her boss, co-workers and family members about it.  And not to be subtle, he sent her about 40 texts over two days to let her know how he was going to destroy her life.

On appeal, Osinger contended that the cyberstalking statute was both facially and as-applied unconstitutional under the First Amendment. The 1st Circuit easily disposed of the facial challenge, as the crime was based on conduct, not speech. To the extent speech supported the crime, the statute was content neutral and the speech fell into the recognized categorical exception of “speech integral to crime.” Continue reading →

In response to a post by Sam Glover at the Puddle, asking what advice we would give new lawyers to prepare for the future of law, Carolyn Elefant offered a corresponding post asking how seasoned lawyers should do so.  She started the discussion with some advice of her own:

I’ll ask (and start, by answering) what experienced lawyers – late 40’s and on – should be doing to prepare for the future. First, those experienced lawyers who still turn up their nose at social media or scoff at the utility of an iPad, need to get with the program. Retaining hard copies of files without any digital or electronic storage, or resisting use of email, or insisting on drafting every document from scratch when a template might suffice as a start isn’t quaint or quirky or even professional. Rather, it’s selfish because these archaic practices ignore the needs and convenience of today’s clients and increase the cost of legal services.

Today’s clients want shiny, and lawyers need to “get with the program.”  No law firm better represented the program than Clearspire, the antidote to Biglaw.  A virtual law firm, with all the positive attributes of the best law firm without the price, because they didn’t have to pay for the corner office and marble hallways. Continue reading →

Operation Neptune. D-Day. Normandy, France.  Jun 6, 1944. Seventy years ago today.

Children of my generation looked at our otherwise ordinary fathers in awe, and pondered how they fought in World War II.  We thought about what we would do if we were called upon by our country to do the same.  Would we rush off a landing craft onto Omaha Beach knowing that there was a good chance we would die?

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There was once a time when cries were heard about getting criminal laws out of our bedrooms. Crimes such as “unnatural sex,” were common. Interracial sex violated pervasive anti-miscegenation laws.  And then people figured out they didn’t want the government telling them how to behave in the privacy of their bedrooms, and our Puritan crimes fell away.

But like all perverse pendulums, it’s swinging back.  Government, get back in the bedroom and do something.

In the New York Times, Philosophy and Gender Studies professor Laurie Shrage writes about the wrongfulness of requiring individuals with HIV to disclose their condition to their sex partners.

H.I.V. disclosure laws give too little weight to the interests and rights of those who are H.I.V.-positive, while overvaluing and overestimating the benefits of transparency for society.  By repealing these laws, we move in the direction of adopting more just and effective policies for combating the H.I.V. epidemic, while protecting the most fundamental human rights.

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