After the internet came down like a load of bricks on my senior Judge buddy, Rich Kopf, an amazing duality emerged.  He used the phrase “dirty old man” to describe himself, and it became a litmus test of generational understanding.  This became clear when two of the WaPo Conspirators, Nita Farahanny and the Chief Conspirator himself, Eugene Volokh, address the issue.

Aside:  This is still not a post about what to wear, whether male or female, or whether Judge Kopf is a sexist pig deserving of vitriol.  This is a post about the language used to convey a message to an audience on the interwebz, and how it’s perceived based on generational differences.

Duke lawprof Farahanny began by recalling her own experiences:

They remind me of the many times that students have commented on dresses I have worn to teach in (but not their male professors), and the time I appeared before a panel of federal judges for a moot court argument and was chastised for wearing a pantsuit. Continue reading →

If you squint a bit, the notion of citizen legislators seems so populist chic. After all, that makes them regular folk like us, and since we’re just the ginchiest, shouldn’t they be too? Except the down side of the concept is that part-time legislators get paid part-time salaries, and need to work for a living if they’re going to get their kids that shiny new iPad that all the other kids have. Would you really want their children to be denied?

So Mark J. Grisanti, R-Buffalo, got himself a pretty good gig for a lawyer, that likely went a long way toward supplementing his meager state salary.  From the Buffalo News:

So when police raided the house Feb. 27 and confiscated $50,000 worth of heroin and another $70,000 in cash, neighbors celebrated what they hoped was removal of an entire gang of bad guys. Continue reading →

Before the Supreme Court’s decision in Whren, police were constrained to lie about the reason for stopping a car they wanted to search for drugs.  But the Court broke through the floor, allowing police to be honest about their dishonesty.  When it comes to interrogation, the law has long been clear that lying is a very effective tool of law enforcement. The law protects lies.

This shocks many people. Aren’t the police supposed to be paragons of virtue, the embodiment of truth, justice and the American way?  Well, one out of three ain’t bad.  The reality is that it’s a lot easier to get people, in all senses of the word “get,” with a well-formed lie than it is with hard work and conformance to the rule of law.  If we just tweak the rule of law to meet the efficacy of lying, combined with trusting that our police would never take advantage of it, problem solved. Continue reading →

Even though we’ve never shared a beer, I kinda feel as if District of Nebraska Senior Judge Richard Kopf and I have become friends.  Sure, it’s just on the internet, but that’s how long distance friendships happen these days. And so when I read his post the other day, On being a dirty old man and how young women lawyers dress, I sucked in some wind and pondered what, if anything, I should do.

I thought about emailing Judge Kopf and telling him, “Dear Judge, are you fucking nuts? Take that down now. NOW!!!.” because I knew what would come.  But then, who am I to tell a judge what to do?  I twitted about it, which reflected my confusion:

RT @JudgeKopf: On being a dirty old man and how young women lawyers dress <I can’t even… Continue reading →

At the WaPo Conspiracy, Orin Kerr has been deconstructing an order by D.C. Magistrate Judge John Facciola for the search and seizure of email and social media accounts that, after concluding there was no probable cause, refused a warrant because he held none was needed.  Jeff Gamso explained why that was disturbing.

Orin has continued dissecting Mag. Facciola’s order, and come down to a very curious “strong suggestion” about how a warrant for emails should be executed:

[T]his Court can see no reasonable alternative other than to require the provider of an electronic communications service to perform the searches. Under the government’s demand that it be given everything, the government leaves the Court with only two options: deny the warrants — thus depriving the government of needed information — or issue warrants that are repugnant to the Fourth Amendment. Neither is viable.

In other words, rather than let the government rummage through a customer’s account at Google, where his gmail emails are held on a server down the hall from the juice bar, make Google do it.  Continue reading →

It’s not that 38-year-old James M. Boyd was the sort of fellow you would want to invite to dinner. He was homeless, perhaps mentally ill, and an illegal sleeper in the foothills outside Albuquerque.  But that’s not a reason for the cops to execute him.  And the word execution is not hyperbole.

There was a long stand-off, variously described as 3 to 4 hours, preceding the video. And the video shows how it was about to end peaceably, the heinous offense of a homeless man camping where the law can’t tolerate it.  Maybe this is how they roll in New Mexico, given that they have a lot of open space and can’t have people illegally sleeping in it when they have nowhere else to sleep. Whatever. Continue reading →

Jurors are instructed not to visit the scene of a crime, or conduct any investigation on their own.  They’re told that they may not consider any evidence not presented to them in court.  And it’s presumed that jurors follow these instructions. When they don’t, they may be dismissed from the jury or, should matters undermine the integrity of the proceeding, bust the trial.

But then, Richard Posner isn’t a juror, but a judge on the 7th Circuit Court of Appeals. He doesn’t have to follow no stinkin’ rules.  Josh Blackman posts about what he calls Posner’s “fashion show” in his consideration of the appeal in Mitchell v. JCG Industries.  It begins with a rather pedestrian problem, that the court was confronted with two different factual claims, pretty much like every other trial.

The district judge did not opine on how long the donning and doffing take, a question difficult to answer in the usual way of judicial fact determination. The plaintiffs would testi‐ fy that it takes 10 to 15 minutes, the employer that it takes only 2 to 3 minutes, and how would a judge or jury know who was telling the truth? Continue reading →

According to the Lockport Union-Sun & Journal, Matthew Murphy was “[b]itten by the ‘prosecutorial bug'” when he got a job as an assistant United States attorney.

“I liked it. You feel like you’re helping people there,” Murphy said. “You can see in a tangible way that you’re helping people when you serve as a prosecutor.”

After a brief stint on the dark side, he was elected Niagara County District Attorney, and served in that office for 16 years, longer than anyone else.  But time came when he began to feel old, and needed a new challenge. So Matthew J. Murphy III became a judge.

What’s that sound?  It’s the assumption that anyone who was weaned on ham sandwiches Continue reading →

In United States v. Diaz, EDNY Judge John Gleeson ripped the heart out of the beloved United States Sentencing Guidelines approach to drug sentences.

The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.

Unsurprisingly, defendants have been raising Judge Gleeson’s argument since for the proposition that courts should categorically reject the drug guidelines and depart downward. Vastly downward, as far as 18 U.S.C. §3553(a) will take them.

At the WaPo Conspiracy, former federal judge cum victim’s rights advocate, Paul Cassell, Continue reading →

The New York Times reports that the Government Accountability Office has taken issue with the Transportation Safety Administration for squandering $1 billion on voodoo.

Like the rest of us, airport security screeners like to think they can read body language. The Transportation Security Administration has spent some $1 billion training thousands of “behavior detection officers” to look for facial expressions and other nonverbal clues that would identify terrorists.

But critics say there’s no evidence that these efforts have stopped a single terrorist or accomplished much beyond inconveniencing tens of thousands of passengers a year. The T.S.A. seems to have fallen for a classic form of self-deception: the belief that you can read liars’ minds by watching their bodies.

A ridiculous waste of money? Don’t be so naïve. John Pistole, Continue reading →