Straddling the fence between ethics and innovation is a really good way to get a butt full of splinters.  My pal, Carolyn Elefant, must have cheeks of steel to write a post at My Shingle suggesting that the ethics of solo innovation should be subject to crowdsourcing. Oh my.

Carolyn starts by noting that #Altlaw businesses, because they disclaim being law firms while selling the practice of law, are able to get a leap on solos and small firms based on their escaping the strictures of the disciplinary rules that apply to lawyers who admit to being lawyers.

It’s no coincidence that many of the innovations in the legal profession – the Axioms or RocketLawyers and matchmaking platforms are non-law firm entities that aren’t subject to ethics rules.  As a result, these companies can push the ethics envelope without fear of serious repercussions. Continue reading →

In an op-ed in the New York Times, long-time Supreme Court reporter and commenter, Linda Greenhouse, takes up the fundamental question raised in the two cases granted cert, United States v. Wurie and Riley v. California, in which the Court will consider whether cellphones can be searched incident to arrest.

Raising the perpetual struggle of applying physical world precedent to digital world reality, Greenhouse explains why the banal decision in Smith v. Maryland, the old pen register case that rested on the ill-conceived Third Party Doctrine, poorly serves the future.

The fit is awkward at best; the Supreme Court’s description of a pen register — “a mechanical device that records” on a paper tape “the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released” — reads like something from Alexander Graham Bell’s laboratory. Continue reading →

Among the many rules of engagement, surrender is the most universal.  In war, it’s understood no matter what language you speak.  At home, it’s how a guy who has done wrong ends it.  Surrender is where the threat stops and everyone takes a deep breath.

It’s the point where no one, no matter how badly you screwed up before, no matter what harm you did, gets killed. And the universal sign for surrender is to raise your hands in the air.  In Pinal County, Arizona, that got Manuel Longoria two bullets that ended his life.  Via Carlos Miller at Photography is Not a Crime: Continue reading →

I can hear what’s running through your head all the way up here in New York.

So you screwed up.  You played in a sandbox you thought you understood. You hired some slimebags to create and manage an online presence in order to market your way to prominence, and left them to do their job. They did, and did it in a way that blew up in your face.

You don’t think of yourself as a bad guy. You think you’re pretty good. Maybe even better than pretty good, even if others don’t appreciate you yet.  Why would anybody try to beat up on a good guy like you?  Why are other people so mean, so angry, that they would go after you as if you told them their baby was ugly or ran over their dog?

It was no big deal.  You didn’t care. It was just some fluff that the guys in Bangalore put on your website to fill the empty white space.  It wasn’t Moby Dick, for crying out loud. Continue reading →

The question of how to properly calculate restitution for Amy has been a subject of many posts here, which I note to avoid a full recitation of the entire history of Amy litigation. The short story is that Amy was the victim of kiddie porn, and has become the poster victim for restitution under 18 U.S.C. §2259.  The amount of damages suffered has been fixed at $3.4 million.

As prior posts have shown, there are circuit splits all over the place as to how to divvy up restitution among individuals convicted of having downloaded one or more images of Amy.  At one extreme, the argument is that each person convicted of having an Amy image should be jointly and severally liable for the entire $3.4 million. At the other end, the argument is that no restitution should be imposed as the individual’s “share” of the total amount of damages cannot be calculated with sufficient foundation to impose restitution.

And so the Supreme Court has taken up the question in Paroline v. United States. Continue reading →

The Supreme Court heard oral argument yesterday in Navarette v. California, a case that tests the limits of when a police officer can conduct an investigative stop  based upon an anonymous tip.  The facts of the case, via WaPo VC’s Orin Kerr, are straightforward.

A 911 caller reported that he had just been run off the road while going southbound on Highway 1 near a specific mile marker by a silver Ford F150 truck with California license plate number 8-David-94925.  Officers spotted the truck and pulled it over.  The question in the case is whether the officers had lawful authority to pull over the truck based on the tip.

Had the caller identified himself, there would be no issue. For whatever reason, he didn’t, yet the police responded to the call nonetheless.  The rule is similarly straightforward, that the cops can make a stop based on specific and articulable facts giving rise to reasonable suspicion that a person is engaged in a crime. Continue reading →

Hot off the presses:

Mr. Hull –

You should be happy to know that I took down your content that has caused so much consternation.  Again, I feel this got way out of hand from my perspective.  Frankly, I was shocked when I read the blog post for the first time this past Saturday, and even more shocked at the continued posting by the owner of blog.simplejustice.us again, this time in regards to the message I sent directly to you.  I tried to write you as quick as possible, because it seemed everyone on the internet had negative things to say when I didn’t respond immediately.  So I did so on my way to court, again on my i-Phone, but later was commented upon, and lied about, when saying I was doing so while I also driving my car (my assistant drove me to court today which gave me time to write, although it is hard to do so in a grammatical fashion from just an iPhone). Continue reading →

The announcement yesterday came as a shock.  Eugene Volokh explained that his blawg, The Volokh Conspiracy, has “partnered” with the Washington Post.  Some took the news with a quiet, abiding shrug.  VC was primarily a libertarian quasi-conservative lawprof blog, often mired in Federalist politics which produced some fascinating discussions in the comments.

Indeed, if there was one aspect of VC that I found most important, it was the nature of the reader comments. VC was the gold standard for blog comments in the early years, having the most well-developed and thoughtful commentary in the blawgosphere.  Unlike other lawprof blogs, its readers tended to span the spectrum, and their comments covered the practical as well as the theoretical.  In the past few years, they’ve gone the way of the rest of us, with the loony edging out the thoughtful. Continue reading →

At the newly formed, and desperately needed, National Association for Public Defense website (at publicdefenders.us, which you should bookmark and support), my pal, Dr. Sunwolf, has posted a truly remarkable explanation of one of the most vexing aspects of trial work, persuading the predictably irrational juror.

As might be expected. Sunwolf starts out with the only reasonable premise: that jurors are not predisposed to believe the defense rather than the prosecution.

It turns out that presenting actual facts to a jury, or even challenging various facts presented by the prosecution, are not enough to actually persuade. Who knew? There are three realities of any juror’s mind that block persuasion when they are not taken into account. First, jurors (like all of us) start out with mental anchor points—beliefs, experiences, attitudes, or opinions that have a strong hold on them. Second, jurors (and the rest of us) Continue reading →

Dan Hull, being the very sensitive guy he is, tried one last time to get Dallas’ tough guy baby lawyer, Carl David Ceder, to remove Hull’s stolen content that remains on Ceder’s website.

Twice thus far, Carl David flailed blindly in an effort to salvage his dignity. Inquiring minds wondered if he would go for three.  And now, Carl David’s reply to Hull, unchanged from its original format:

From: “[email protected]”
Date: January 21, 2014 at 7:19:35 AM PST<
To: “[email protected]”
Subject: Re: Informal Take Down Request: “12 Rules for Client Service” Continue reading →