Sitting in the front row, the one with the sign that said “Attorneys and Police Only” even though defendants in cuffs were also allowed to sit there, I heard my client sit down behind me.  He said hello, and I turned to return the greeting.

Next to my client was an old man.  My client was big; robust and tall. The old man next to him was slight; short and thin.  He had that wiry look of a guy who would do far better in a fight than his size would lead you to expect.  But he wasn’t looking mean and tough. He had a huge smile, as if we were at a party and he was the host.  I introduced myself and shook his hand. It was clear Continue reading →

Over the past few days, I’ve written a few posts about the efforts to criminalize revenge porn, led by Miami Lawprof Mary Anne Franks. This won’t be another post on the subject, so don’t make a face. Rather, this is a post about the efficacy and legitimacy of searching.

Shortly after publishing this post, where Franks is named in the title, I searched Google to see what, if anything, else had been written on the subject. My post was there in the results, on the first page, about midway down. After Kaimipono Wenger posted the faux interview of Franks at Concurring Opinions, I heard from commenter “AP” who told me the weird story of how his comment to Wenger’s post included a link back to mine.  He did what any normal person would do, cut and pasted the link into the comment. Continue reading →

A maxim that was taught when I went to law school long ago was that the law can’t provide a remedy for every wrong man can conceive.  That was back when we were allowed to say things like “man,” without anyone pretending to choke. Except that one weird kid in the back of the room who seemed to find offense in places no one else did.

The point was that people seemed to always manage to come up with some variation on a theme of harm that nobody anticipated, nobody thought possible, and for which there was no law, whether criminal or civil, that applied.  “Why not?,” budding lawyers demanded of the professor.  “Why shouldn’t the law prohibit this awfulness?” Continue reading →

In the latest in his series of sentencing “statements of reason,” Eastern District of New York Judge John Gleeson takes on one of the most onerous and offensive of the weapons of mass destruction in the prosecutor’s arsenal, 21 U.S.C. §851 in United States v. Kupa. The statute requires the government to file an information that the defendant has a prior felony conviction, which triggers enhanced penalties. Like doubling the mandatory minimums.

The initial reaction might be “great, so the government has to jump through a hoop,” and subject its claim to scrutiny. Well, yes, that’s true, but like so many laws passed by Congress, it’s been turned into a sword when it was meant as a shield. As Judge Gleeson explains: Continue reading →

It’s the buzz word that goes hand in hand with the marketing ploy of producing “practice-ready” lawyers: experiential learning.  What it means is to teach by experience, which has conceptual merit like many ideas, even if it’s become trite before it’s even been implemented.  The problem, like most concepts, is that it’s easy to print the words on law school porn in bold-faced, gold-colored letters to entice and confuse young people, but a lot harder to execute in any worthwhile way.

Paul Campos at Lawyers, Guns and Money, raises the point:

Next week Washington’s Wardman Park hotel will be invaded by 800 or so people looking for jobs as law professors, at the annual hiring conference put on by the Association of American Law Schools. “Experiential learning” is the buzz phrase of the moment in legal academia, as law schools deal with the latest wave of criticism Continue reading →

When Southern District of New York Judge Richard Sullivan rips the government a new one, you know it’s got to be bad. And when the opposing voice is an old friend from the office, Rich Zabel, oh boy. Sorry if this sounds a bit like schadenfreude (it’s really not), but I remember when these guys were all line assistants in the Southern District, and I can’t help but picture them giving each other the stare, like, “why are you doing this to me?”

Via Mike Koehler’s FCPA Professor:

According to a recent Law360 article (“Judge Mocks US Attorney Bharara’s Press Release”), at a recent Practising Law Institute conference Judge Sullivan “ridiculed” this press release put out by the office of Manhattan U.S. Attorney Preet Bharara in a public corruption case Continue reading →

The appellant’s brief on behalf of Ladar Levison and Lavabit was filed yesterday (10/10/13) in the Fourth Circuit, seeking to clean up the mess left behind by the government’s sledgehammering the “secure” email provider into cooperation.  It tells a shocking story of how the government sought to strong-arm Levison into giving up the Lavabit encryption key, what the brief calls the “private key” because it was the “master key” held only by Lavabit that enabled access to every account, every customer, every email, everything.

The government, of course, only wanted (or so it said) access to one customer, one account, which is redacted in the brief but bears a remarkable likeness to Edward Snowden.  On his own, Levison sought to negotiate a deal with the feds, to give up Snowden by doing the decryption on his end and handing everything “Snowden” over. Continue reading →

Tempe’s conscience, criminal defense lawyer Matt Brown, found a fascinating post by United States District Judge Richard Kopf at his Hercules and the Umpire blog. Despite his occasional bloggy naiveté, Judge Kopf is generally frank, funny and transparent, sometimes to the point of awkwardness.

But the post Matt found, a response to a comment by another federal judge, Mark W. Bennett, was disturbing.  Judge Bennett, who has been at the forefront of challenging the federal reaction to drug conspiracies that has failed miserably to win the War on Drugs while wreaking havoc with our poor and minorities, was implicitly called “foolish” by Judge Kopf for not embracing the view that drug crimes are inherently violent crimes. Continue reading →

It’s either the most brilliant or the stupidest move ever.  And that applies either to American Lawyer Media or to the first 500 people dumb enough to take them up on it. Or maybe both.  Bob Ambrogi broke the news:

Law.com will be inviting outside authors to become regular contributors to the site. When this network launches in November, it is expected to have at least 100 contributors. By the time of LegalTech in February, the Law.com editors hope to have as many as 500 contributors.

The contributors will not be paid but will be given access to a WordPress-based platform that will allow them to publish directly to the Law.com site. Continue reading →

Allegations of rape have become a flashpoint for both problems with the legal system and its intersection with pop culture.  On one side, it’s a terrible crime and one worthy of our most severe condemnation. On the other, it’s often a tough crime to prove, and that’s resulted in watering down the demand for proof, sometimes to the point of mere finger-pointing.

The problem is that this doesn’t bother certain societal interest groups, who don’t seem to have a problem with the potential of wrongful convictions if it results in more convictions. It’s the old “take one for the team” theory, or better to convict ten innocent men than let one guilty rapist go free theory of law. Continue reading →