In her concurring opinion in United States v. Jones, empathetic Latina Justice Sonia Sotomayor pondered the question of the digital age:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. Continue reading →

As a defendant walks before an arraigning judge for the first time on a drug charge, there is one crucial detail that’s simply assumed: the substance at issue is drugs.  Assuming a quick plea doesn’t dispose of the case, the substance will eventually be tested in a laboratory, and assuming the lab tech doesn’t lie, screw it up or cross-contaminate it, there will be a definitive answer as to whether it’s drugs or, say, soap.

In the case of Annadel Cruz and Alexander Bernstein, it turned out to be soap.  They only spent a month in jail awaiting that conclusion.

A state trooper pulled the couple over Nov. 13 on Interstate 78 in Lehigh County, Pennsylvania, for driving 5 mph over the speed limit and hugging the side of the lane. Continue reading →

Following Judge Kozinski’s extraordinary dissent to the denial of en banc review in United States v. Olsen, Judge Richard Kopf put the question on the table:

The judge writes: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” United States v. Olsen, Nos. 10-36063-36064 (9th Cir., December 10, 2013) (dissent). Is the most interesting man in the world merely trying to be interesting or is HE right?

As interesting as the opinions of others may be, the far more interesting question is what Judge Kopf thought of Judge Kozinski’s opinion and, to push the envelope a bit farther, how would he, as a district court judge, cure the disease, if disease it was. Continue reading →

At PrawfsBlawg, Howard Wasserman asks an interesting question: How precise must a student’s answer on a test be when employing the language of the law:

Law is a language. It involves a particular way of speaking and the use of certain phrases and terms, some often confusing or cumbersome, having arcane meanings and/or drawn from statutes and rules which themselves often are not well drafted. But it is the language we are stuck with and the language that they must use in the practice of law. That is a particular thing in class such as Civil Procedure and Evidence–“failure to state a claim upon which relief can be granted,” “proof sufficient to support a finding,” “meet the burden of production on the non-existence of the presumed fact” . . . it goes on. Continue reading →

In a comment to a post that was uncontroversial to experienced criminal defense lawyers, but less so to others, Charles Morrison wrote:

You are about to read something you are (probably) unused to seeing here: you are right. You have convinced me that a regulatory scheme that differentiates between attorneys is a bad idea.  I’m willing to admit that my initial inclination is wrong after having considered arguments.

I don’t know who Charles Morrison is. Continue reading →

Most of the time, videos here involve a cop doing wrong.  It invariably brings a bunch of comments with words like thuggery and brutality, often accompanied by such brilliant insight about how all cops are evil and deserve to have harm come to them. You wouldn’t know about such comments, as I trash them. They do nothing to illuminate a meaningful issue and reflect the simplistic anger that many have toward the police.

But on the occasion when a cop keeps his cool, even in the face of jerks with cameras who are trying to goad the officer or too blind to recognize that their own bias and cop-hatred prevents them from making fools of themselves, it’s worth showing as well. Continue reading →

When a student has special needs, there are two things that run through a school administrator’s head: it’s going to cost money and it’s going to require someone to exert some effort. Neither of these things makes an administrator happy, but good schools are resigned to their duty to provide a Free and Public Education.  Others demonstrate little to no grasp of what that means.

In the case of 5-year-old Michael Davis, who suffered from ADHD with behavioral issues, his IEP should have included a behavioral intervention plan, an individualized means of addressing the behavioral issues raised by special needs students to manage problems, address negative and support positive behaviors. It’s hard work.  Instead, the Rio Calaveras Elementary in Stockton, California decided to try the hammer method first. Continue reading →

After parsing the website of young buck Maverick Ray for, let’s say, excesses, Mark Bennett found a far more concrete, and disconcerting, excess to address.  With all of his 8 months of experience, Maverick had taken on a retained death penalty case against one of the toughest prosecutors Texas can throw at a lawyer, raising the ghost of Joseph Rakofsky with one significant difference: this time, there was an opportunity to address the mistake of judgment before the harm was done.

“I am extremely trou­bled about Mr. Ray’s lack of knowl­edge and train­ing in tak­ing this case,” Weeks said. “(Cap­i­tal mur­der) is the most dif­fi­cult and inte­gral crim­i­nal case we have in this state.” Continue reading →

Let’s be clear up front: Judge Clark Waddoups of the District of Utah did not hold that anyone has a constitutional right to marry as many wives (or husbands, or cats, or chairs) as he wants.  Not even Kody Brown.  He did, however, hold in Brown v. Buhman that the Utah law criminalizing Brown’s living with a bunch of women in addition to his one lawfully wed wife was unconstitutional.

And for that Jonathan Turley, lead counsel for Brown, is rightfully proud. This was the goal from the outset.  Dave Koppel at Volokh Conspiracy provides the best synopsis of the lengthy opinion:

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013). Continue reading →

Once again, marketing philosopher Seth Godin gives us something to chew on:

The obvious answer to your problem isn’t obvious yet, but once someone finds it, it will be.

That’s the way obvious answers work. They’re not obvious because they’re easy to find, they’re obvious because, in fact, there’s an answer.

There’s something inside us that needs answers.  When they aren’t forthcoming, we default:

Answers: $1

Correct Answers: $5

Sure, it’s an old joke, but it’s funny because it reflects experience. Continue reading →