When Milwaukee County Deputy Joseph Quiles t-boned the car, he knew there was going to be a problem.  So he did what he had to do, lie through his teeth, blame the victim and rely on the kindness of his brothers in blue to make sure someone’s butt was protected. That butt was his.

Tanya Weyker was hurt so badly, she couldn’t blow into a breath-testing device or perform field sobriety tests.  But a Sheriff’s deputy arrested her for drunk driving anyway.  And the County hung those charges over her head for nearly a year, even long after blood tests proved she was perfectly sober.

Five months later, it was absolutely certain that she was stone sober.  Weyker made a rookie mistake when first asked what happened. She told the truth. Continue reading →

One of the smartest and funniest guys I know is a Catholic priest. This is a never ending source of jokes, which he takes with aplomb, because he knows that I don’t share his enthusiasm for Jesus, pomp and circumstance and trappings. I insist he’d be Buddhist except that black is slimming.

But why does his tribe get to invoke the name of his God before petty officials meet to decide mundane issues of state town?  Tradition.  The Supremes, in what is aptly described as a deeply fractured decision, upheld the tradition of the Town of Greece, New York, in having a clergy-guy give a ceremonial invocation before their monthly meetings.

It’s not that they’re Christian-centric, they say, but there aren’t any other churches in the phone book, and so they end up with a prayer like this:

“Lord, God of all creation, we give you thanks and praise for your presence and action in the world. We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. . . . We pray for peace in the world, an end to terrorism,violence, conflict, and war. We pray for stability, democracy, and good government in those countries in which our armed forces are now serving, especially in Iraq and Afghanistan. . . . Praise and glory be yours, O Lord, now and forever more. Amen.”

Continue reading →

Marketing guru Seth Godin offers an unpleasant truth.  What makes it unpleasant is that it blows one of the most common excuses out of the water.

“I didn’t have time”

This actually means, “it wasn’t important enough.” It wasn’t a high priority, fun, distracting, profitable or urgent enough to make it to the top of the list.

One of the questions/assumptions posed or imposed here is how it’s possible to write this blawg without it being all-consuming.  Having been over this ground too many times already, I won’t bore you with the details, but the relevant piece is that I choose to make the time to write.  Sure, I could use the time to post kitteh pics to instagram instead, but I don’t. I wake up every morning, look at a screen, and my fingers just start twitching. It’s what I do.

Every few days, Twitter and Facebook soak up a billion hours of ‘spare’ time. Where did that time come from? What did we do before social media was here? Weren’t we busy five years ago?

Continue reading →

Sharing is caring, which is why the government loves it so dearly.  The third party doctrine holds that when a person “shares” information, data, writings with a third party, there is no longer an expectation of privacy such that it is protected by the Fourth Amendment and a search warrant is required for the government to search and seize it.  And the most interesting man on the TSA security line, Stewart Baker, explains why this is right and just.

The theory of Smith [v. Maryland] is that I have a reduced privacy expectation in things I’ve shared with others. Life teaches us the same lesson.

When you hit “save,” are you “sharing” with the cloud?  Is it your way of telling Google employees that you’re fine with them to read your emails, that you’re part of a big happy family that has no secrets? Continue reading →

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 →