There are two things about rights that make them special. First is you get to exercise them without penalty. Second, if they’re violated, there is a remedy. If either of these is lost, then so too is the right. But rarely is the point driven home as clearly as it is in this video.



Peachy. While the right to refuse to blow into a breathalyzer is scrupulously honored, the price of exercise is that you will be arrested, at least in the legal sense of being seized while the police obtain a warrant for the forcible withdrawal of blood. They will strap you into a gurney, stick a needle into your body, and then seek to obtain evidence to be used to justify post-hoc the arrest and assure conviction. That’s how they roll in some counties in Georgia, United States of America.

The rationale is that drunk driving is a terrible thing, and children are killed and injured by people who drive drunk, breaking the law and putting children at risk.  It’s certainly true, though whether it’s as true as the claims say is a matter of methodology.  And nobody would argue that they neither care about the welfare of children nor want to see children harmed.  Nobody wants to children to be harmed.

But that gross rationale, based on the oft-abused logical fallacy of an appeal to emotion, misses the mark. The use of forced blood draws isn’t about finding, stopping, arresting drunk drivers, but about gathering evidence to assure convictions.

Before there was such a thing as a breathalyzer, or forced blood drawers, there were laws against drunk driving. There are people arrested and prosecuted, and they were convicted or not upon the testimony of the police officer, who would describe how they were driving before they were pulled over, their slurred speech, blood shot eyes and the odor of alcohol emanating from their bodies.

Granted, the use of technology, even if it’s about a magic black box, makes conviction far easier. No longer does it matter that they drove erratically, swerved across lines or, at its worst, hit something or someone. They might drive perfectly, without the hint of risk to anyone, but between their breath or blood, the proof of drunk driving condemns them to conviction. 

But this is America, the greatest nation on earth where we will fight to protect our freedoms, including the freedom to refuse to blow into a tube to create evidence for the sole purpose of convicting us.  And upon the exercise of that right, at least in certain counties of Georgia for now, this is the price paid for that freedom.  A cop asks a judge for a warrant to do this to a person, and that’s that. The finest legal system ever.

And lest you think the images of how a forced blood draw happens are barbaric, no video has yet emerged on even  less savory methods of evidence collection. If a forced blood draw makes your skin crawl,  forced catheterization is going to make you wretch. All to collect evidence to assure conviction. Isn’t it great to have rights?

While it’s hardly an answer to respond with images of beautiful children who died at the hands of a drunk driver, most of us will let our emotions overcome reason so that lesser harms to adults can be ignored for what we perceive to be a higher purpose.  Things like logical connections rarely play a role in such emotional games.

Yet, the person who isn’t drunk gets the same needle as the person who is. Take one for the team? The person whose crime is contempt of cop gets a special strap down and needle, to teach ’em not to mouth off to Officer Friendly. The person who is diabetic, or really suffering from any sort of medical condition that doesn’t fall within a police officer’s personal experience or empathy (because cops know all there is to know about humankind), gets strapped down just like the stone drunk.

And this is what it looks like to exercise the right to refuse to blow.

It’s not like it would ever happen to you or anyone you love, right?

Marketing philosopher  Seth Godin takes on an issue that I find particularly irksome, the inbound call to customer service.  As badass astrophysicist, Neil deGrasse Tyson, recently twitted, “after 15 minutes, I’m beginning to think my call is not very important to you.” Me too.

Rules for treating inbound customer calls with respect:

0. Spend a lot more money on this. Hire more agents. Train them better. Treat them with respect and they’ll do the same to those they interact with. Have a bright red light flash on the CEO’s desk whenever anyone, anywhere, is on hold for more than 5 minutes. If it gets to seven, have the call automatically route to the mobile phone of the CEO’s spouse.

1. Have a very smart and very motivated front line. “I’ll connect you directly to the person who can help you if you let me know what you need…” Don’t have these people pretend that they can help. It leads to long conversations and frustration.

2. 80% of your inbound calls are about the same ten things. First, eliminate those problems in future products, packaging and policies. The best way to handle these calls is to eliminate them. Second, put clear, fun and complete answers to these questions online where they are easy to find. And third, hire talented voice actors to record engaging answers to each, and offer them as a first resort as a result of #1, above.

3. Change your onhold music to Bill Cosby and Woody Allen records.

4. Whenever the wait is more than two minutes, offer a simple way to be called back, and then make sure it works.

5. If you’re closed, tell us the hours you are open and the relevant websites. Make sure the information is accurate.

(NB it’s just fine to make it clear that a call is not important to you. I’ve never built a company around amazing phone support, precisely because it’s so difficult to keep the promise. As far as I’m concerned, it’s fine for some industries to not do the phone well. Just be clear that this is the case by routing people off the phone or at least not lying about it).

Thank you for calling Megacorp, selling products you adore because they have all the really cool shiny bells and whistles that Americans so desperately want, made by orphans in the Fujian province of China.

If you really want to speak with a person, your hold time will be at least 57 minutes, as we outsource customer service calls to a 12 person call center in small town outside Bangalore, all of whom call themselves “Sue,” and we can get thousands of calls an hour because about 20% of our products fail miserably. The other 80% last until the warranty period expires, not that it really matters since it’s just legal gobbledygook intended to make you think we stand behind our products. Frankly, we’re just as surprised they last that long as you are.

If you choose to wait on hold for at least 57 minutes, you will speak with a young woman (her name will be “Sue”) who knows nothing more about our products then you do. You will be asked a series of questions about why you’re calling to give you the impression that the person you speak with has some sort of specialized knowledge, but you will actually get picked up by the next available person regardless of why you’re calling. Sue will repeat every word you say, getting it wrong the first time, in order to give you the impression that we’re paying close attention to detail. This will take at least 17 additional minutes of your life, which you will never get back.

Sue has never actually seen any of our products. Sue doesn’t even own a pair of shoes, because she can’t afford them on what we pay for her services. She will put you on hold and take a look at the manual, the very same one we sent you with our product. She won’t know any more about it than you would if you had read the manual. We know you can’t be bothered, which makes Sue seem as if she knows more than she does.

Because Sue has never actually seen any of our products, and doesn’t even own a pair of shoes, she really won’t care about your concern that you’re going to miss your mani/pedi appointment if she doesn’t get a move on, or can’t call your broker because you only get four bars on your gizmo. Her family eats one meal a week, and your first-world-whining just doesn’t rock her world. But she will pretend she understands.  

We understand, because we’re more like you, but then, nobody who actually works for Megacorp would spend their time talking to you. You see, you’ve already bought our product and we have your money. We have better things to do with our time. Like getting our own mani-pedi’s.

If you decide that it’s worth your while to spend at least 57 minutes on the phone waiting to speak with Sue, she will read from the script we’ve prepared that instructs her to tell you that she is sorry for your inconvenience, even though she had nothing to do with your problem and it’s unlikely that the word “inconvenience” really suits the situation. It’s just that nobody has come up with a more benign word that the lawyers will let us say. It’s never our product. It’s just that we feel your pain. See how that works?

Sue will then tell you that she can definitely help you, because focus groups tell us that it’s what you want to hear, even though there is nothing she can do to fix anything. But then, if you’ve sat on hold for that long, chances are pretty good that you will fall for a line like this and feel that, even though your problem wasn’t fixed, we care deeply about you. That’s enough for anyone willing to waste that much of their life, since you obviously don’t want to think too hard.

At the end of the call, Sue will ask if there is anything else she can do for you, even though she hasn’t done anything for you yet.  You will say “no,” allowing us to put out a press release about the marvels of our customer service satisfying 100% of our inbound callers. With that sort of claim, you will feel confident buying a new gizmo from us to replace the one that you called about which doesn’t work.

At Megacorp, your call is not important to us. In fact, we find it laughable that anyone would even bother spending a minute of their life on hold because of us. But if you still feel the need to speak to Sue, please hold.  While waiting, we hope you enjoy  a loop of the Best of Bill Cosby. Hey, hey, hey.

Two posts went up at two blogs yesterday, apparently without knowledge by either writer that the other would be writing on the same subject. One was by Jordan Rushie at Philly Law Blog. The other was by Leo Mulvihill at the Puddle. Put Jordan and Leo together and you’ve got the Fishtown Lawyers.

Both Jordan and Leo’s posts were motivated by a post by another baby lawyer,  Josh Camson, who announced that after 18 months of practice as a criminal defense lawyer, he was going to hire an associate. 

Amazingly, my partner and I have been up and running for about eighteen months now. We haven’t killed each other, we haven’t been disbarred, and we have kept the lights on. And now we’ve decided it’s time to expand. This summer we will bring on an associate attorney and get some real health insurance.

As I approached my graduation date in spring 2010, I faced a situation similar to many of my classmates: no jobs.

After graduation, while studying from the bar, I still faced that same situation:  no jobs.

After taking the bar, while awaiting the results: no jobs.

This was terribly frustrating.

But then, in fall 2010, just as the bar results were to be released, I received a call from a Judge whom I’d volunteered time working for back during my 2L year. He needed a clerk. He needed that clerk to start soon. He wanted that clerk to be me. So I took the job.

Luck: The judge needed me exactly when I was looking for a full-time job.

Making the best of that luck: While working for the judge, I read countless motions and pleadings, honed my research and writing skills, and sat in on several trials. Because I sat in on as many trials as I did, I met the attorneys who were regularly trying cases in our court. I’m still in touch with many of those attorneys today, who serve as referral sources and mentors. Furthermore, my judge was in the last year of his tenure before retirement. When he retired, he gave me most of his law books, which jump-started my firm’s legal library.

But I only got the job because I volunteered my time during my 2L year.

The saying is that “luck is what happens when preparation meets opportunity.” There’s no guarantee that you will get lucky, but as pro golfer Gary Player said, “the more I practice, the luckier I get.” That’s how it happens. Nobody gets lucky in the practice of law by doing and thinking the least possible, hoping instead that the certainty of youth that things will work out will get you over the hump. 

Marcus Schantz found that out the hard way, when the success of his first two years of practice led to the red ink of his next two. And Josh Camson is only 18 months in, just like Jordan and Leo, but shows neither their humility nor desire to prepare so that they can get lucky.

* Many tell me that they hate the obscure references of some of the titles I give my posts. That’s a shame, as I find them amusing.  But this title, “Idiot Wind,” may prove particularly obscure, so I thought it might be fun to make it a contest, with the first person who can explain what it has to do with this post winning a copy of  Nathan Burney’s spectacular book, The Illustrated Guide to Criminal Law.

Here’s a hint:

It looked like curtains for defendant Guillermo Alarcon Jr., when Los Angeles detectives claimed they saw him throw something to the ground as he fled them. VIa the LA Times :

The officers had claimed that they immediately found the drugs after seeing Acevedo’s client, Guillermo Alarcon Jr., throw an object as he ran from police.

The drug trial ended dramatically when [Los Angeles County Deputy Public Defender Victor] Acevedo produced grainy surveillance video of the area where the arrest took place showing a group of officers searching for more than 20 minutes before one announces that drugs have been found.

Describing his sentencing decision as among the most difficult a judge could face, Los Angeles County Superior Court Judge Michael E. Pastor called the officers’ conduct “regrettably shameful” but said he also took into account the careers and lives they had led.

Evan Samuel, 41, was sentenced Tuesday to perform 750 hours of community labor while Richard Amio, 34, was ordered to perform 500 hours.

“Do you know what this tells every potentially corrupt police officer? That you get a freebie, that you get a pass,” Acevedo said. “What all officers should be on notice of is that if they are found to commit this kind of corruption, they are going to prison.”

The problem for most people who would otherwise think an entrapment defense will save their sorry butts is that they are otherwise predisposed to commit the crime.  That makes small time criminals the perfect mark for the Bureau if Alcohol, Tobacco and Firearms, which may not be able to investigate and find anyone actually committing a crime, but has become extremely good at making crimes happen.

Via Brad Heath at USA Today :

They were waiting for a phone call that would launch a daring and dangerous crime, sending them charging through the front door of a Mexican drug ring’s stash house to steal 50 pounds or more of cocaine from three armed guards. Their plan was to disguise themselves as police officers, tie up the guards, and slip away with a half-million dollars worth of drugs. If tying them up didn’t work, they’d kill them all.

Only the small army of federal agents watching them knew that it was all a lie.

There was no house. No drugs.

And the only things waiting for them when the call came were a team of camouflaged federal agents with rifles and stun grenades, and the promise of a long prison sentence for a plot to steal and re-sell non-existent cocaine.

So far, they rounded up more than 1000 would be winners of the criminal lottery this way, offering wildly profitable enticement to people who they’ve identified as potential bad dudes.  Maybe not violent. Maybe not big league. Maybe not of the sort that would ever consider taking down a big time stash house, but at least a naughty enough to take the enticement seriously and to squeak past entrapment.

(Updated to add in the video, now that it doesn’t include advertising or autostart. Thanks, Brad.)

The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, the agency in charge of enforcing the nation’s gun laws, has locked up more than 1,000 people by enticing them to rob drug stash houses that did not exist. The ploy has quietly become a key part of the ATF’s crime-fighting arsenal, but also a controversial one: The stings are so aggressive and costly that some prosecutors have refused to allow them. They skirt the boundaries of entrapment, and in the past decade they have left at least seven suspects dead.

The ATF has more than quadrupled its use of such drug house operations since 2003, and officials say it intends to conduct even more as it seeks to lock up the “trigger pullers” who menace some of the most dangerous parts of inner-city America. Yet the vast scale of that effort has so far remained unknown outside the U.S. Justice Department.

Cool name, trigger pullers, and calculated to put an immediate end to any potential sympathy they might otherwise receive. After all, the ATF reasons, these aren’t nice, clean kids who would never break the law otherwise, and when you call them killers, even if they’ve never harmed a fly in their erstwhile criminal career, you almost appreciate ATF going out and finding these trigger pullers before they find you.

In many cases, the records show the ATF accomplished precisely what it set out to do, arresting men outfitted with heavy weapons and body armor, and linked to repeated, and sometimes bloody, crimes. In the process, however, the agency also scooped up small-time drug dealers and even people with no criminal records at all, including Army Rangers. It has offered would-be robbers the chance to score millions of dollars of cocaine for a few hours of work. In at least one case, the ATF had to supply its supposed armed robbers with a gun.

So maybe calling them trigger pullers isn’t quite right, but you can no doubt anticipate the rationale.

Former ATF supervisor David Chipman, who left the agency last year, said the public deserves to know more about how the ATF is using its resources. “There are huge benefits, and there are huge downsides,” he said. “Do you want police to solve crimes, or do you want them to go out and prevent crimes that haven’t occurred yet? What are the things you’re willing to do so that your kid doesn’t get shot?”

Do you really want to wait until one of these trigger pullers kills your little angel? No, you don’t.  And neither does the ATF, which loves children too.

ATF officials reject the idea that they should focus only on people with violent records. “Are we supposed to wait for him to commit a (obscenity) murder before we start to target him as a bad guy?” said Charlie Smith, the head of ATF’s Special Operations Division, which is responsible for approving each sting. “Are we going to sit back and say, well, this guy doesn’t have a bad record? OK, so you know, throw him back out there, let him kill somebody, then when he gets a bad record, then we’re going to put him in jail?”

And so what if the trigger puller has never so much as touched a trigger before, or did much pulling for that matter. It’s not like the ATF could entice anyone to engage in their sting who wasn’t otherwise included to violence, drugs and mayhem. It’s not like they are dangling hundreds of thousands, maybe millions, of dollars in front of them. Oh wait.

As it becomes more widely known what the ATF is doing, the dubious tactics are becoming less accepted.

Critics, among them federal judges, say the ATF’s operations are flawed. In an opinion last year, Judge Richard Posner of the Seventh Circuit Court of Appeals in Chicago dismissed the drug-house stings as a “disreputable tactic” that creates “an increased risk of entrapment because of the potential for the extensive use of inducements and unrealistic temptations to encourage the suspects’ criminal conduct.”

Not to mention seven targets died as a result of these stings.  But it’s so much easier and more effective to create phony crimes to ensnare the bad (and semi-bad) guys than to have to go out on the street and do something about crimes that happen without the finger of the government pushing the button.

Nobody doubts that cops give other cops a pass when it comes to the same conduct that they would happily slap cuffs on you, but rarely do you see a police-centric website like PoliceOne publish a story explaining the proper behavior for a police officer to get “professional courtesy” from one of his tribe.

Doug Wyllie, PoliceOne Editor-in-Chief, riffs off this video of cops being jerks: 



Wyllie explains there’s no need to break this down for some excellent fingerpointing, as is invariably done when it’s cop versus citizen:

Ultimately, the video speaks largely for itself and there’s no point in further pointing fingers at either the uniformed officer or the off-duty cop who was stopped. They both made mistakes. Let’s move on.

Move along, cuz there’s no benefit in wasting any precious time on cops behaving poorly. That would just be negative, the sort of thing that mopes, mutts, punks and skells enjoy when disrespecting the fine law enforcement officers who protect and serve.  Got it. Haters. Screw ’em.

But it does provide an opportunity to talk about the notion of “professional courtesy” with regard to off-duty traffic violations. 

Aha! Something that matters to police officers, how to make sure you can break the law with impunity. Who couldn’t use a refresher course in that, right?

When you’re off duty in your POV and you’ve been stopped by another officer, make that “ideal violator” the model for your behavior. 

•     Keep your hands on the wheel
•     Keep your emotions in check
•     Keep your language civilized
•     Keep your badge in your pocket
•     Keep your fellow officer in mind

Don’t you want to be an “ideal violator” too? See all the important stuff you learn at SJ?  He goes on to explain that the off-duty LEO should first explain that he’s armed, and afterward that he’s a cop.

You have to remember that when you’re armed and off duty, and stopped for a traffic violation, the order in which you divulge information pertinent to officer safety (read: “I have a weapon” and “I’m off-duty LEO”) matters. 

This matters since you wouldn’t want to be shot first for being armed before letting the officer know that you’re one of “us.”  First things first, as the First Rule of Policing never takes a holiday.  But having assured mutual safety and behaved like an ideal violator, time for professionalism to kick in.

The Golden (and Cerulean) Rule

My good friend and PoliceOne colleague Dan Marcou puts it, “Do unto other officers in uniform as you would have others do onto you. That is the true meaning professional courtesy.”

I look at it this way: in order to be granted (or even considered for) professional courtesy, you first must be professional and courteous. Respect yourself and respect what the badge — not your badge, but THE badge — represents. And that goes for both parties at an off-duty LEO traffic stop.

If both individuals carry those values into the encounter, then they will both naturally (and mutually) behave in a respectful manner toward their fellow officer… 

And that, dear readers, is how an off-duty cop should properly handle being stopped for driving twice the speed limit. 

Of course, if you don’t have a shield, you will likely be ticketed, arrested or beaten. But you can avoid being beaten if you too are an ideal violator.

This has been another bit of excellent law enforcement advice from PoliceOne.

There is nothing more sadly amusing than when a civil litigator dips his toe into criminal defense and finds out that they learn less about the evidence against a defendant whose life is on the line than they do in a law suit for a stubbed toe.  Welcome to criminal discovery. The shock and dismay never gets old.

New York Assemblyman Joe Lenthol from the North of Brooklyn has offered a bill to fix the insanity.  From his experience in the Kings County district attorney’s office, he no doubt appreciated the dearth of discovery and how it worked to the terrible disadvantage of the defense in preparing its case.  So he offered a fix, as he explains in the memo to Assembly bill A3801 :

The ever-present reality of the criminal justice process is that most of the information necessary to fair adjudication is in the hands of the State. One purpose of the discovery law is to  disclose  to the  accused  before  trial  inculpatory  evidence making up the State’s case, in order to prevent unfair surprise. An equally critical component of the discovery process is to provide the accused with material in  the hands of the State, with its superior investigatory resources, that may aid in the preparation of a defense.  This duty to disclose what is loosely  referred to as “exculpatory” evidence had been a constitutional requirement since Brady v. Maryland, 373 U.S. 83 (1963).

The basic flaw in the Brady disclosure process is that it places the duty to search, for evidentiary material favorable to the defense in the hands of its adversary. Some prosecutors may take an unduly narrow  view of the Brady obligation, one that does not encompass impeachment material or recognizes only obvious exculpatory evidence. And even the conscientious prosecutor may not understand how an item might fit within a defense theory, or lead to evidence favorable to the defense.

The amendment to CPL §240.40(1)(c) would strengthen the effectuation of the Brady rule. The current version, with the “which the people intend to introduce at trial” restriction, serves only the  discovery  function of  preventing surprise.  It  does little to aid the preparation of the defense function. The part  of  the  information in the  prosecution’s possession  that it selects to introduce at trial will likely not be favorable to the defense. On the other hand, the material that it chooses not to present to the trier of fact is the category where information favorable to the defense is more likely to be found.

 (1)(h)   Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States.

AN ACT to amend the criminal procedure law, in relation to discovery

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

    1    Section 1. Paragraph (c) of subdivision 1 of  section  240.40  of  the
    2  criminal procedure law, as amended by chapter 19 of the laws of 2012, is
    3  amended to read as follows:
    4    (c) may order discovery with respect to any other property[, which the
    5  people  intend to introduce at the trial,] upon a showing by the defend-
    6  ant that discovery with respect to such  property  is  material  to  the
    7  preparation  of  his or her defense, and that the request is reasonable;
    8  and
    9    S 2. This act shall take effect immediately.

Among the many shiny new ideas of the Future of the #ReinventLaw of the New Normal crowd is online dispute resolution. This may come as a surprise to many, since most of us find our time online to give rise to the creation of disputes about, well, everything.

In a  comment to her own post at Legal Ethics Forum, Renee Knake mentioned an Online Dispute Resolution service called Modria, which offers what it calls an online small claims court.  As I am of the view that for most minor legal disputes, the courts are overly expensive, technical and take too damn long, the notion of a simplified dispute resolution process that could quickly address relatively low-value and cross-jurisdictional disputes, a huge but neglected problem with the law, was very interesting.

Even though Renee, one of the founders of #ReinventLaw, to which I’ve been somewhat unkind, likely thinks I’m just a hater of all things new, I decided to use my time to look around Modria.  I soon stumbled upon a claim to fame they thought worthy of promotion, that Richard Susskind, the head cheerleader of shiny, loved the idea. I persisted in trying to give Modria a fair shake nonetheless, because Renee’s point struck a chord.

My concern is that if the legal profession refuses to liberalize in these ways, others will provide the tools that the public demands/needs (Modria is a good example of this – called by the Wall Street Journal “the small-claims court for the 21st Century” – founded by ODR pioneer Colin Rule, a nonlawyer).

When she described Colin Rule as an ODR “pioneer” and a non-lawyer, I have no doubt she meant it as a positive. Non-lawyers, to the Future of the #ReinventLaw of the New Normal crowd have the virtue of not being constrained by the limits of education or precedent. They are free to imagine new ways to do things without having to concern themselves with the past couple hundred years of trial and error.  I get it.

But being all pioneer-y and non-lawyer-y isn’t enough to suggest that Colin Rule has any bona fides for the job, so I checked out his profile.

Colin has worked in the dispute resolution field for more than two decades as a mediator, trainer, and consultant. From 2003 to 2011 he served as the first Director of Online Dispute Resolution for eBay and PayPal…

For anyone who has any depth of experience with eBay and Paypal, this isn’t necessarily a good thing.  They deal with a ton of disputes, because people do a lot of things that are definitely dispute worthy on eBay and Paypal (and a lot of good too. I love and use both).  But the virtue of their dispute resolution mechanism is that it exists.  It’s not particularly fast, and it remains a deep, abiding mystery what “law” is applied by the elves working deep in the bowels of a bunker in San Jose, but by playing their game, you have to play by their rules.

This does not extend to the rest of the world, however.  And so it leads me to ask a bunch of questions, the answers to which are utterly missing on the Modria website despite the cool marketing lingo that is meant to sate the curiosity of the believer.

1. Who is deciding things at your small claims court?
2. What are their qualifications? Are they lawyers? Are they nice folks you’ve trained with your special sauce and we should just trust you because you have a cute smile?
3. What makes them neutral, reasonably unbiased, especially with regard to potential corporate account users who might require all disputes be handled there?
4. What “law” is applied in determining disputes? You have no jurisdictional limits, which is good, but then that comes without law. So is there law, or are decisions whatever happens to strike the fancy of one of those nice folks trained with your special sauce?
5. How does a party submit evidence? How does the “judge” know it’s real?
6. How does the opposing party get to see the evidence in advance of being put to the test of disputing it?
7. How does the inarticulate litigant overcome the limits of his skills? Is this done in writing or via live video?
8. Is there an appeal process? Is there anyone to go to when the dispute resolution process falls into the toilet?
9. Does anyone review the “judge’s” determination to make sure it isn’t batshit crazy?
10. What assurance is there that this process can provide a fair, rational and honest means of determining disputes?

There are plenty of other, smaller, questions within these, but since all the futurist types love lists of 10, I’ll stop here.

Is the idea of online dispute resolution a worthwhile idea to pursue? Absolutely. There is a huge gap in the legal system for low-value cross-jurisdictional disputes, and given the flat world of the internet, the gap really needs to be filled.  But is Modria the solution?

Beats the heck out of me. It doesn’t appear likely to be capable of doing the job now, as it seems to have massive failings in its concept and format that need to be overcome before it can fulfill its promise. In other words, right now it fails miserably in execution despite the shininess of its concept.  Does that mean I hate it? Well, yes, unless and until it can do what it purports to do fairly, adequately and properly. Otherwise, it’s just another idea that has found a problem and done a half-baked job of solving it.

We may well have a troubled system, one that doesn’t work particularly well for the world as it exists, but that doesn’t mean we embrace any change without scrutiny.  As I responded to Renee,

The allure of shiny new ideas when things are looking rather dim is understandable, but change isn’t always for the better. Just trying to help.

The new emperor can be just as naked as the old one. The Future of the #ReinventLaw of the New Normal crowd really needs to understand this.

I remember the first time I was told a client was busted for crack. I had no clue what they were talking about, and so I was told it was a concentrated form of cocaine, cooked down into a small, smokable rock, that gave a user a fast, strong high. I was told it made a user a bit crazy, because the high was so intense, and it was cheap, as a tiny vial sold for $5. It was cheap enough that the same guys who were buying pot could now spend the same nickel on crack and get a far better high.

What did I know? That’s what I was told.  It quickly owned a lot of guys on the street, and became a huge business for clients. And a violent business, as new players would fight for the old pot corner, with guns. Pot sellers rarely were violent. Violence was common amongst crack dealers, enough so that gangs like the Wild Cowboys were regularly having gunfights in the streets.

The myth of crack grew mostly because of the violence that arose around it. As a drug, it turns out that it wasn’t really any different than powdered coke, except that it could be purchased for pennies rather than hundred dollar bills the way it was sold at Studio 54 to rich white guys. That was what was really wrong with crack, that it was the suddenly the drug of choice uptown, where blacks and Hispanics used it, sold it, died over it.

So Congress, in its infinite wisdom, decided that anyone selling crack should be punished 100 times more harshly than anyone selling powdered cocaine.  It took a couple generations and tens of thousands of dark bodies to realize that it was a baseless, knee-jerk number. And so it was eventually changed, twice reducing the ratio as explained by Judge Merritt of the 6th Circuit in U.S. v. Blewett.

The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years.  The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes.  The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support.  The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio.  However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause…

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010.  The Act should apply to all defendants, including those sentenced prior to its passage.  We therefore reverse the judgment of the district court and remand for resentencing.

It’s time to undo fully these unjust and irrational sentences, which treated powder cocaine users — who were typically white and often affluent — far more leniently than the mostly black and poor users of crack cocaine.

As anticipated, the huge, monumental story about the National Security Agency collecting every piece of electronic communication generated, just in case, has given way to less lofty stories, even though nothing has changed and the government continues unabated to gather up our every byte and pixel.  No, it’s not because we are suddenly cool with the idea that the government is doing this, but because a shiny squirrel could be seen in our peripheral vision and distracted our attention.

The name of that shiny squirrel is Edward Snowden.  Whether one considers him a hero or ideological provocateur, he’s caught the public’s eye.

At Volokh Conspiracy, Orin Kerr raises some interesting question about this.

Whenever Edward Snowden is discussed, I invariably encounter the following response:

Edward Snowden is not the issue. You’re trying to distract people by changing the topic. The real issue is what Snowden disclosed about government surveillance, and anyone who talks about Snowden is not talking about the real issue.

I find this response puzzling. There are two stories here. On one hand, Snowden revealed documents showing how the government was implementing its national surveillance authorities. That’s a big story, and I blogged about it several times. But on the other hand, Snowden himself is a big story, too.

Granted, what Snowden has revealed so far either appears to check out as legal and constitutional or at least was so approved by the federal judges on the FISA court (with too few facts known so far to be able to say much more to question that). So there isn’t quite a “scandal” there. But there are some interesting law nerd issues that I’ve blogged about a few times.

At the same time, there are really interesting legal issues with Snowden, too. Granted, what Snowden did is clearly illegal. Snowden has pretty much admitted to his conduct, so there isn’t much in the way of drama on the legal issues there.

To reduce this to an equation, NSA = legal and constitutional. Snowden = illegal. How then can something that’s legal and constitutional be a big issue when something that’s illegal be, well, less big?

This is where the disconnect between the lawyer mind and reality rears its ugly head. Lawyers, judges and especially lawprofs who are self-described “surveillance law nerds” fail to see what is clear to everybody not laboring under the burden of legal myopia. 

That the government over the years, going way back to when Congress enacted FISA, long before computers, smartphones, Youtube or Facebook were a twinkle in the public’s eye, and nobody, aside from a few of us criminal defense lawyer, gave it any thought, started down the path that led us to laws and constitutional interpretations that render what the NSA is doing lawful. At the time, few noticed. Fewer still cared. But the foundation was built.

So it’s lawful and constitutional? Because of laws created before our digital world existed, and then tweaked as we slid down the slippery slope? And we now find ourselves in a world without privacy, but it’s all okay because laws say so and the Supreme Court agrees?

So the public had a hard time figuring out where all this was going, and didn’t believe, whether it was intentionally blind or just ordinarily stupid, it would eventually reach where we are now. Granted, we let it happen.  But pointing to laws and judicial opinions to say, tough nuggies, this is the world you allowed to happen around you and you can’t complain about it now, isn’t an adequate response to this epiphany. 

For a long time, I’ve argued that the message of Katz, that we as a People want to have a reasonable expectation of privacy, and that the law has failed to keep pace with technology and put us at the mercy of the government. It may be lawful, but it’s now smacked us in the face that the law has failed to meet a basic expectations of a free people to be left alone, free from governmental intrusion into our every thought and utterance.

Oh wait, there’s a shiny squirrel. What was I saying?

Update:   Jonathan Turley published an op-ed in USA Today likening the Snowden prosecution to Animal Farm.

Of course, none of our politicians is nearly as open and honest as Squealer. There will be no sign proclaiming the different treatment of the governing and governed classes. They prefer the barnyard to return to its previously sleepy existence once the offender has been put away.