As every regular reader knows, the past year has given the blawgosphere an actual, honest-to-god, Article III judge with whom to engage. It’s been, at least to me, a somewhat tricky, somewhat awkward, somewhat illuminating experience, and one that I found enormously valuable. And now it’s done.

On the first of January, 2014, District of Nebraska Senior Judge Richard G. Kopf retired his blawg, Hercules and the Umpire, from active duty.

In short, Hercules and the umpire has exceeded my wildest expectations. And so–it is time to kill it. In this forum, I have written all that I want to write and then some. It is that simple. My decision is final. Continue reading →

The past year has seen the blawgosphere continue down its path toward meaninglessness as more lawyers have jumped in only to pump and dump their wares.  But while the volume of emptiness (and truly awful content) has increased, there remains hope in a handful of great new blawgers, and the efforts of those serious about criminal law.  The numbers may be down, but the value of the content has been stupendous.

This past year brought us another pseudonymous PD, Norm de Guerre at Chasing Truth, Catching Hell, who had two exceptional posts nominated this year. While Norm has slowed down since his nomination to the ABA Beauty Pageant, he’s brought great insight to the blawgosphere in his distinctly left coast style.  Appellate Squawk, another PD from the civilized side of the country, continues to go strong, with biting commentary fused with humor. Continue reading →

Whether you’re a fan of Judge Richard Leon’s or Judge William Pauley’s opinion on the [un]constitutionality of the NSA’s spying on every American’s telephony metadata, the Supreme Court opinion in Smith v. Maryland stood at the crux of the ruling.  The majority opinion in the 1979 case was written by Justice Harry Blackmun. Or at least, signed off by him.

Via baby lawprof, Josh Blackman, comes a most extraordinary bit of inside info: Continue reading →

I was on a roll yesterday, and suddenly realized that the memo I was working on was over 100 pages.  Lest anyone be overly impressed by length, that’s much too long and only meant that I had a massive amount of editing to do. No judge has the time to read, no less digest, a memo of that length. But I was on a roll.

There can be no question but that the ability to communicate in writing is a critical and fundamental tool of the law.  But then, not enough lawyers give much thought to the mechanics of communication in general and writing in particular.  Despite assumptions to the contrary, my writing here isn’t the same as my writing in my practice. This is for fun. In my practice, I write for other people’s lives. I write to persuade a judge to see and agree with my point. There is no room for the indulgence shown here. Continue reading →

As New Year’s Eve approaches, preparations are made by police across the nation to block the paths of cars.  No longer is it limited to drivers who sipped more than the Mothers Against Stuff They Don’t Like think they should, but to those who may have toked too hard or taken a Prozac over the line. Or at least what appears to be drugs to a stick.

The law of roadblocks is a curious one, allowing police to seize and detain a person provided it’s done in a non-random fashion. Delaware v. Prouse provided the road map, where the Supreme Court decided it had the authority to “balanc[e] the public interest against the individual’s Fourth Amendment interests.” Continue reading →

Both Judge Richard Leon and Judge William Pauley, in their respective decisions about the constitutionality of NSA’s spying upon Americans by collecting and maintaining all telephony metadata, relied on the 1979 Supreme Court opinion of Smith v. Maryland.  While privacy did poorly in the decision, the opinion was factually relevant and clearly the appropriate precedent to consider.

Many are familiar with Smith as the decision approving of the warrantless use of pen registers, which Justice Harry Blackmun held permissible under the Third Party Doctrine, as failing the objective prong of Katz’s reasonable expectation of privacy test.

The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” —whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Continue reading →

As the story of former Milwaukee Police Officer Michael Vagnini’s path to prosecution reflected the failure of cops to deal with the sickest within their ranks, the outcome hasn’t proven any better.  Vagnini had a thing he liked to do when he busted someone. He liked to do it a lot.

The complaint lays out in graphic detail how the primary suspect, Officer Michael Vagnini, conducted searches of men’s anal and scrotal areas, often inserting his fingers into their rectums. Vagnini acknowledged performing one of the searches.

This went on for at least two years, and when the complaints piled up so high that even Milwaukee Police Chief Edward Flynn couldn’t come up with an excuse for ignoring it, Continue reading →

Last week’s New York Times magazine had an odd article about eBay’s shifting fortunes in the world of e-commerce.   It seems that the days of eBay being the world’s largest, never-ending garage sale are coming to a close, as it’s trying to reinvent itself as another Amazon.

Most people think of eBay as an online auction house, the world’s biggest garage sale, which it has been for most of its life. But since [CEO John] Donahoe took over in 2008, he has slowly moved the company beyond auctions, developing technology partnerships with big retailers like Home Depot, Macy’s, Toys ‘‘R’’ Us and Target and expanding eBay’s online marketplace to include reliable, returnable goods at fixed prices. Continue reading →

While we, who wait quietly to be called for our few moments in the well, attribute vast power to the guy in the robe on the big bench of a federal courtroom, federal judges may not see their authority quite the same.  This point was driven home in spades by a post by Judge Richard Kopf at Hercules and the Umpire.

About to have (a presumptively lengthy) sentence imposed, the defendant disrupted the routine with an apology for not being at his best.

When the defendant spoke, the first thing he said was “I don’t feel so well” or words like that. He was sweating profusely, he seemed shaky, and he appeared to be nauseous.. Continue reading →

Judge William H. Pauley III took his turn at bat in determining whether the government’s collection of telephony metadata might be uncool in any respect, as his brother, Judge Richard Leon, held a mere ten days earlier.  The title of this post is the TL;dr version of the opinion I used on twitter.

In ACLU v. Clapper, the court could not have been more deferential to the government.  I mean exactly that, in the sense that Judge Pauley adopted unsupported representations that the FISC Judge John Bates had concluded were false in a 2011 opinion recently declassified.

Judge Pauley swept past the issues of efficacy of the program with the rhetoric of the obvious, Continue reading →