A few months ago, I got a call from a very sweet lawyer. I won’t give you her name unless she tells me it’s okay, or reveals herself in the comments, because it wasn’t a telephone call for public consumption, though it wasn’t any big secret either.  She was frustrated and angry and needed to vent.

Her problem was that her non-lawyer friends, otherwise similarly nice, intelligent, lovely people, would talk about legal issues, and particularly criminal justice issues, and be completely, utterly clueless.  They were simplistic in their understanding. They were harsh in their judgment. But what drove this lawyer nuts was that they didn’t want to learn better. Continue reading →

While the ABA Task Force on the Future of Legal Education produced remarkably little of substance when it comes to actually fixing anything, it did throw out a few nuggets to keep tongues wagging.  One such nugget was the creation of “limited licensed technicians.”

However, there is today, and there will increasingly be in the future, a need for: (a)persons who are qualified to provide limited law-related services without the oversight of a lawyer; (b) a system for licensing of individuals competent to provide such services; and (c) educational programs that train individuals to provide those limited services. The new system of training and licensing limited practice officers developed by Washington State and now being pursued by others is an example and a positive contribution. Continue reading →

A friend of mine, a senior federal judge, explained to me simply that he was never going to make the Supremes, had life tenure, and if he couldn’t use his position to do the right thing, he had wasted it.  He didn’t start out that way as an ambitious judge, but figured it out along the way in time to make it matter.

Orin Kerr remarked that a “courageous” judicial decision is one that “stretches the law but nicely matches the observer’s policy preferences.”  Bill Otis has questioned whether the same “courage” would be praised had the judge deemed the “right thing” to be a substantially harsher sentence, ignoring law and guidelines to mete out severe punishment if that was what the judge decided proper. Continue reading →

Kids do dopey things, and what better place to do them than on the internet! Whether it’s some embarrassing nonsense of their really fun Friday night on their Facebook wall or a photo of them engaged in semi-naked, alcohol-fueled conduct that a future employer might find questionable, it all ends online. Welcome to the virtual world of digital natives.

So who, except the most heartless cretin, would deny an immature youth the opportunity for a Mulligan, a do-over, to clean up all the stupid crap he posted as a child so that it doesn’t follow him around for the rest of his life?  An “eraser” of youthful foolishness, if you will. Continue reading →

When the Supreme Court decided that the duty to explain immigration consequences fell not on the judge taking the plea, but on defense counsel in Padilla v. Kentucky, it was a trap in the making.  Not that any half-competent lawyer wouldn’t do his best to make his client fully informed anyway, but do what, exactly?  How hard could it be to explain immigration consequences to a defendant taking a plea?

The 5th Circuit in United States v. Ramirez demonstrates just how hard it can be, at least if you want to get it right. Continue reading →

Jamison Koehler posts about a CLE he attended that included a breakout session on the cross of the chemist.

[Presenter Ed] Shacklee was talking about how intimidating it can be for a non-scientist to cross-examine a government chemist.  Sometimes we also have to deal with a cranky judge who is annoyed with us for dragging the whole thing out:  The test shows that it was a controlled substance.  Why are you wasting all of our time?

But it can and should be done. Continue reading →

There are some places where privacy, for Fourth Amendment purposes, really shouldn’t be in question.  If a person’s home is his castle, the toilet is his throne. But to police in Portland, prosecutors and the judge who denied suppression without explanation, there is nothing special about porcelain.

From Oregon v. Holiday:

Defendant appeals his conviction for possession of cocaine, ORS 475.884, assigning error to the trial court’s denial of his motion to suppress. Believing that defendant was in violation of a term of his probation, police unlocked and opened the door to the public restroom that defendant was occupying. Continue reading →

It might surprise you to know that I, for one, appreciate Sam Glover’s missives at The Puddle of the Clio Cloud 9 Conference in Chicago. His posts save sane and busy people from sitting through these conferences by reporting back from the cutting edge. It both allows working lawyers to do their work and still learn what the fringe has to say.

You might think my use of the word “fringe” is derogatory, but I assure you it’s not. How else would we learn what’s happening on the cutting edge but from the handful of people willing to spend their time at such conferences? Continue reading →

When lawprof Danielle Citron’s op-ed appeared on CNN, I felt the shiver.  Since her Cyber Civil Rights days, when she proposed criminalizing speech that hurt women’s feelings, it was clear that when feelings clashed with reason, the latter didn’t stand a chance.  This time, it was revenge porn, websites that posted nude photos given to former suitors who used them to harm, embarrass and humiliate the person.

Criminal law should have a role in deterring and punishing revenge porn. It’s not new that certain types of privacy invasions are crimes. Many states prohibit the nonconsensual taking of sexually explicit images — the disclosure of someone’s naked images should be criminalized as well. Continue reading →

In a New York Times op-ed, Ashley Merryman writes that losing is good for you.

The science is clear. Awards can be powerful motivators, but nonstop recognition does not inspire children to succeed. Instead, it can cause them to underachieve.

More hateful Boomer criticism?

Carol Dweck, a psychology professor at Stanford University, found that kids respond positively to praise; they enjoy hearing that they’re talented, smart and so on. Continue reading →