The opening line of the Daily Californian editorial was shocking:

The prevalence of sexual assault on college campuses across the country has reached the point where the need for sweeping institutional reform is undeniable.

If it’s undeniable, then it must be so, and yet the evidence of it appears to be largely relegated to baseless statistical claims of vague and undefined offenses.  I’ve looked. I’ve asked.  There is empty rhetoric up the ying-yang, but no substance behind it.  And from that, it’s now so prevalent that it’s undeniable? Continue reading →

The post by Jonathan Adler at the WaPo Conspiracy did little more than point to another WaPo post.  Under other circumstances, that wouldn’t be surprising, as newspapers internally cross-promote all the time. But this was the remnants of the once vaunted Volokh Conspiracy, and while pointing at the writing of others was nothing new, this one was special:

Prosecutorial misconduct is a serious problem. Because prosecutors are largely immune from suit for their actions, some prosecutors take liberties, tolerate false testimony, suppress exculpatory evidence, and engage in selective prosecutions. Fortunately, we have writers like Radley Balko, who focus on these issues. His latest discusses the disturbing reaction of prosecutors to judges who criticize their conduct.

Did Adler just discover prosecutorial misconduct?  Did he just decide to take ownership of Balko (note the “we” in there)?  Does he think the readers of VC were oblivious to Brady violations, or oblivious to the writings of non-lawyers like Radley? Continue reading →

Not that it’s more than a bit self-interested, but the New York Times has an editorial celebrating the 50th Anniversary of the watershed decision in New York Times v. Sullivan. It’s entitled. It was a huge win, both for the Times and for the freedom of the press, which endures today:

The ruling was revolutionary, because the court for the first time rejected virtually any attempt to squelch criticism of public officials — even if false — as antithetical to “the central meaning of the First Amendment.” Today, our understanding of freedom of the press comes in large part from the Sullivan case. Its core observations and principles remain unchallenged, even as the Internet has turned everyone into a worldwide publisher — capable of calling public officials instantly to account for their actions, and also of ruining reputations with the click of a mouse.

From the mainstream media to the wackiest person with a keyboard, the right to criticize public officials endures, much to their consternation, unless done with malice.  Since the courts haven’t been particularly cooperative in silencing those who reveal, real or imagined, government excess and malfeasance, government has used its fiat to accomplish what the court won’t. Continue reading →

I may be off a bit on the timing, but it was soon after the Supreme Court held the federal Sentencing Guidelines constitutional that I argued in the Southern District of New York that the crack/powder cocaine sentencing disparity — then 100 to 1 — was arbitrary and capricious.  Back then, crack was the stuff of myths, a super powerful, incredibly addictive drug that made people go crazy and violent. Powdered coke, on the other hand, made people attractive at Studio 54.

When I first learned of crack, I had no clue what it was. I had a client explain it to me, and then run me through the way it was made.  In essence, it was the cocaine version of a red wine reduction sauce, coke mixed with a filler like baby laxative, then cooked down to a more concentrated rock, which could be smoked. The delivery method was different, but it was still just coke.

So I challenged the crack guidelines, believing they made no sense at all and were just the by-product of media hysteria surrounding the drug. Continue reading →

In a comment to my recent post about the cellphone/smartphone cases coming before the Supreme Court, Wurie and Riley, which I believe are huge and potentially paradigm shifting cases that the Supremes are ill-prepared to handle (and notably, moved the goal posts when they recast the issue presented), Pvine raised a very troubling point:

In light of recent Supreme Court decisions (see Fernandez for a very recent example), I don’t believe that the majority of the Court still adheres to the Warrant Preference Rule. As has been stated time and time again (especially in the last decade), the ultimate requirement of the 4A is reasonableness. The break hasn’t been definitively made between the Warrant Clause & the Reasonableness Clause, but I believe the Court is really close to severing those ties.

Scary as his (he could be a she) observations may be, he has a good point. Continue reading →

The irony is that those who are passionate have great difficulty in understanding why it’s not good enough because they don’t go the next step and apply critical thinking to the efficacy of raw passion.  After all, they keep hearing important people tell them that all they need to be a raving success is to be passionate. And they are. Even Apple says so:

Apple’s Your Verse ad campaign poses an odd and maybe cynical offer to us. Don’t pay attention to the call of law, business, or medicine. Be a poet. Be a creator. Contribute your verse. What are we on American Idol? Or as Monty Python put it maybe all we want to do is sing. Apple panders to the look at me right now world. The film is about free thinkers. Maybe that is the same as being a poet.

The point was made most effectively in a humor magazine article, I believe Cracked (but can’t find it, so if you know what I’m referring to, please help me out with the link. Edit: this is it, thanks to Aaron Williamson) where a person comes to the aid of someone badly injured, announcing that they are there to save the day.  The injured person asks, “so you’re a doctor?”  The good Samaritan responds, “no, but I’m deeply passionate about medicine.” Continue reading →

Jacob Gershman at the WSJ LawBlog provides the timeline for Dewey & LeBoeuf’s slide into the toilet of financial ruin, which started shortly after the 2007 merger of the two firms, Dewey Ballantine and LeBoeuf, Lamb, Greene & MacRae.  As the indictment suggests, it was doomed from the start.  That can happen. Biglaw is no more immune from the vicissitudes of finance and profitability than anyone else, as much as that may shock some young bucks who are absolutely certain that it’s where God would go for representation.

That it didn’t turn out as well as some thought isn’t a big deal. That the management of Dewey was no less arrogant about it than any two-bit swindler who thinks he’s smarter than everyone else, on the other hand, is quite an indictment.  From the New York Times:

Four men, who were charged by New York prosecutors on Thursday with orchestrating a nearly four-year scheme to manipulate the firm’s books to keep it afloat during the financial crisis, talked openly in emails about “fake income,” “accounting tricks” and their ability to fool the firm’s “clueless auditor,” the prosecutors said. Continue reading →

When Jamie Casino’s Superbowl ad went viral, everyone said it was the most awesome lawyer commercial ever. Sure, anyone with half a brain realized how awful it was, throwing criminal defendants under the bus, trading on his brother’s death for a buck, but those were the details. It was AWESOME!!!

There are any number of funny, disgusting, abhorrent, awesome things posted on Youtube everyday. What made this different was that it was by and about a lawyer, so we took notice. Lawyers aren’t usually the cool kids, and nobody pays us much attention, so this was a major shift. Everyone was watching.  Enough so that it got Casino a reality show gig.

According to Deadline, Warner Horizon Television signed Casino to create Casino’s Law. One of the producers from The Bachelor will develop the show, which doesn’t have a concept yet, but hey, that’s not important right now. Hopefully, it will feature more flaming sledgehammers. Continue reading →

Two cases whose names may well be connected to one of the most important rulings the Supreme Court will make in our lifetime are United States v. Wurie and Riley v. California.  On the surface, the issue is whether the police have the authority to conduct a nonconsensual, non-exigent, warrantless search of a cell phone upon arrest.

While the issue could be disposed of easily with a basic search incident to arrest analysis, where a cell phone  (read smart phone, for those who want to think a step ahead) was deemed just another container that happened to hold digital stuff rather than physical stuff, the ramifications are devastating.

The real issue of these two cases is set forth in Jeff Fisher’s merits brief in Riley (courtesy of Orin Kerr at WaPo Conspiracy), Continue reading →

On the bright side, when Eugene Volokh made the decision to take his big win in the 9th Circuit in Obsidian Finance v, Cox and move the court to tweak the opinion around the edges because a sentence hurt his pro bono client’s feelings, it gave rise to a number of interesting discussions about the duties and obligations of counsel.

Cox had good reason to be unhappy with a sentence in the opinion that was unflattering toward her, to say the least:

Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1.

Still, Eugene beat back a $2.5 million judgment for his client (at least for now) Continue reading →