This came in a while back, and I had forgotten about it until now.  But a post by Judge Kopf reminded me of a telephone etiquette issue that has long bothered me, which in turn made me think of monumental telephone gaffes.  Gary Ostrow, who doesn’t really like me for having pointed out that he has issues, is one such gaffe.

This gives rise to a few modern day telephone rules:

1.  There is this technological marvel called “caller ID.”  When you call, the person you are calling can see who it is (or see that you’ve concealed your identity), and decide whether to answer or not. If a receptionist sits between the telephone and the person to whom the call is directed, caller ID makes it remarkably easy to yell out, “let it go to voicemail.” It’s like magic. Continue reading →

It’s spreading.  From Judge Jed Rakoff in the Southern District of New York to Judge John Kane in the District of Colorado.

The Proposed Final Judgment as to Van Gilder contains provisions and recitations that I will not endorse, namely: (1) a waiver of findings of fact and conclusions of law that is directly contrary to F.R.Civ.P. 52; (2) a waiver of the right to appeal, the acceptance of which is indisputably a matter of judicial discretion and for which no reasons are given to support the exercise of that discretion; (3) a statement that Van Gilder neither admits nor denies the allegations of the Complaint without providing any basis therefor; and (4) a permanent injunction prohibiting future violations of existing statutory law.

Rulings like this please neither party, both of whom enjoy the fruits of their agreement while avoiding certain issues they would rather not address.  The government gets to claim a “win” without proving any wrongdoing in fact occurred and collect its blood money, while the defendant gets to similarly claim a “win” by not being compelled to admit any wrongdoing and buys its way out of a tight spot. Continue reading →

In an op-ed that reaches into a universe too distant for even the New York Times, Alfie Cohen attempts to revitalize the “everybody gets a trophy” sense of entitlement that gives rise to exaggerated self-esteem of youth.  Yes, the Slackoisie have a new champion.

But seriously, has any child who received a trinket after losing a contest walked away believing that he (or his team) won — or that achievement doesn’t matter? Giving trophies to all the kids is a well-meaning and mostly innocuous attempt to appreciate everyone’s effort.

Even so, I’m not really making a case for doing so, since it distracts us from rethinking competition itself and the belief that people can succeed only if others fail.

Rather, my intent is to probe the underlying cluster of mostly undefended beliefs about what life is like (awful), what teaches resilience (experiences with failure), what motivates people to excel (rewards) and what produces excellence (competition).

Between the use of bizarrely loaded language, obvious strawman arguments and low-rent logical fallacies, Cohen posits that society has returned to the bad old days of meritocracy. Continue reading →

The argument for regulation is remarkably easy: there is an evil out there, a wrong, and if only a law or regulation was passed to control it, to constrain it, to prevent people from doing it, our world would be better.  It’s not that this is a bad argument, or that it’s necessarily wrong, but that it’s a facile argument.  Just like the latest slogan from the White House, “1 is 2 many,” it sounds great but for the flip side of how many people must be harmed to get that “1”?

At Overlawyered, Walter Olson posted a fascinating lesson in harsh reality:

After a long career as a member of the U.S. House of Representatives deeply unsympathetic to business concerns, he became a restaurant owner in Washington, D.C., and discovered a lot of things worth knowing about how the world works.

He was speaking of David Bonior, “former Michigan Democratic congressman, liberal pit bull, academic, antiwar firebrand and labor-union BFF.” Continue reading →

When Mary Anne Franks began her Jihad against revenge porn, it was pointed out that her baby had a huge problem. In the zeal to “get” the evil revenge porn men, her law would also criminalize the revelation of Anthony Wiener’s dangerous selfie, and that was not merely a 1st Amendment problem, but one that undermined important public concerns.

Franks adamantly denied her law suffered from significant 1st Amendment deficiencies.  But quietly, while no one was looking, the law morphed to include a “lawful public interest” exception for what’s now been renamed the “Sydney Leathers exception” (which changes the name from the male to the female, even though few people know or care who Sydney Leathers is).

No, Franks didn’t send me a thank you note for pointing out this glaring failure in her law. No, she doesn’t even acknowledge it existed or was brought to her attention by the misogynist enablers she hates so dearly. But that’s okay. Mary Anne isn’t exactly a gracious woman. and changing an incredibly poorly conceived law into just a horribly bad one is more important than a concession that she was wrong all along. Continue reading →

The adage is bad facts make bad law, but it usually applies to the underlying facts of the prosecution rather than the facts of what transpired during the course of a trial.  But the Second Circuit got a heaping pile of weird in United States v. Griffith.

On appeal . . ., Griffiths principally contends that he was denied his Sixth Amendment right to effective assistance of counsel when, after his attorney suffered two strokes following the close of evidence at trial, the District Court — instead of postponing trial indefinitely or granting a mistrial — appointed an attorney who had not witnessed the presentation of the evidence to deliver the defense summation.

What are the chances?  Not even an order from the trial judge, Alvin Hellerstein, could make Griffiths’ lawyer capable of giving summation. It’s unclear from the record whether such an order was issued, but the opinion makes clear that it didn’t work, leaving Griffiths in the odd position of having his attorney of choice, the one whose representation would otherwise be assured by the Sixth Amendment, standing there alone. Continue reading →

It came via a twit by FAMM’s Mike Riggs, retwitted by Radley Balko. and was sufficiently alluring to compel me to read:

Federal appeals court rules driving with your hands at 10 and 2 is suspicious behavior and thus grounds for a stop.

Well, that’s pretty friggin’ awful, and the link was to Huff Post Crime, so I clicked.  And what do you know, it was an article by Larry Bodine.  Larry Bodine?  Well, yeah, that Larry Bodine.  Failed lawyer turned failed marketeer, turned editor of failed Lexis-Nexis’ Lawyers.com, who now describes himself as “journalist lawyer,” providing “legal news for regular people.” Continue reading →

For those who have never had the pleasure, visiting a client in jail is not one of the more pleasant aspects of a criminal defense lawyer’s job.  Jails smell weird. The screws are not always the most accommodating of people. It wastes a huge amount of time, as a five-minute conversation takes hours to accomplish. And if you’re a woman, don’t go near the joint with an underwire bra or provocative clothing. Oh no.

As an aside, it’s not entirely pleasant for clients either.

So as signs were posted in attorney visiting rooms alerting us to the miraculous convenience of video chatting with inmates, who couldn’t be happy?  After all, most of us have computers, and most of our computers have cameras in them these days. And we could sit at our desks, or in Starbucks sipping a mocha frappucino as we felt deep empathy for our client’s eating a sandwich of American cheese and the finest institutional bologna available, and engage in meaningful, privileged communication.

Except Travis County jail. Continue reading →

The White House and Department of Education have gone full court press because, as announced through a star-studded video, we have a big problem.

Whether it is a big problem is hard to say, even though the video takes it as a given.  The just-released report of the White House task force to Protect Students From Sexual Assault begins by saying so, and simultaneously saying that they need to begin a study because, well, they actually have no clue whether it’s a big problem or not. Continue reading →

At Sentencing Law & Policy, Doug Berman received an email from someone who works in the federal courts.  While it’s not quite explained, it appears that Doug credits the email as being from someone who is indeed an “insider,” even though it’s posted under the pseudonym “Joe FedCourt.”

The entire email is definitely worthy of a read, maybe two, as it’s quite hard to follow, but it includes this:

As if it is their place to step in and question ANY Article III judge.  This only follows upon what we have seen this past year, with Defenders running to the Hill, talking to DOJ about clemency, and discussing indigent defense with the press.  The mechanics of how justice is administered in this country, in terms of the allocation of resources and the scope of jurisdiction, is exclusively the purview of the Judicial Conference of the United States and should be recognized as such.  The Conference could have gotten more money for judges’ chambers and court staff if it weren’t for people like the Defenders sucking up all the oxygen last summer and fall!  Not to mention magistrates undermining confidence in the Conference as people wonder who the hell is running the Judiciary!!!

Continue reading →