Elie Mystal’s powers of persuasion continue to amaze me. Somehow, Elie persuaded Loyola of Chicago’s law school dean, David Yellen, to write a “column” at Above the Law. Hooboy.  Whether there will be a second column has yet to be seen, but to say his reception was not warm is an understatement.

The fact that Dean Yellen was willing to walk into the lion’s den of snark and angst reflects a pretty admirable degree of fortitude on his part.  The fact that he thought he could get away with the usual fluff, rudimentary acknowledgement of the issues leading to the pedantic talking points of the Academy stalwarts was, well, foolish.

Almost all law schools are in the process of changing significantly and, by the standards of the academic world, rapidly. Where we will wind up is very much up in the air. Right now we have more questions than answers. Some schools will probably adapt very effectively and will emerge in strong shape. Others will flounder and perhaps close.

In the weeks ahead, I hope to talk about these issues in a way that is fair and balanced (isn’t there a TV network that says that?). There will be those who disagree with some of what I write; others may disagree with everything. But as I said to Elie, it may be naïve, but I still believe that even in our overheated internet age, there is real value in serious dialogue on important topics. I look forward to our time together on ATL.

It’s not that you’re naive, dean. You are, but that’s not your biggest problem, or even among the top 10. There is real value in serious dialogue, but when you preface the obvious by “our overheated internet age,” you are telling the Philistines that serious dialogue only happens on your terms.  Those days are dead, dean.

The  arrogance of scholarly tone is a brick wall, stopping the pretense of dialogue dead in its tracks. You may believe there is common ground, areas of give and take, where improvement can be made that will satisfy the unemployed, indebted barbarians, but you won’t indulge them as they refuse to speak in the hushed tones that suit your sensibilities.

They will eat you alive for this. They will shred you for your paternalistic refusal to talk to them if they don’t talk your way. 

But nothing can be accomplished if they call you mean names and refuse to hear you out?  There is a message in there that you aren’t hearing, dean. They are angry. It’s to your benefit to calm the storm, because angry people aren’t easily appeased, and they aren’t interested in giving letting you make the rules of engagement so that you can calmly explain why they are overheated and you are mindful.

They have heard from you before. Maybe not you, but others with the same talking points, the same soothing dulcet tones, and the only thing it got them was a bag of Cheetos and a seat on the basement couch.  They aren’t going to let them happen again.

I suspect, as do you, that there is common ground, from the closing of marginal law schools to reduce the number of lawyers spewed on the market to something more closely resembling what society can absorb.  I suspect that chopping scholars’ salaries by half, and maybe half again, because they can try their damnedest to get a big money job at Biglaw, but we all know that’s not happening for most of them.  The introduction of actual lawyers teaching what they have actually done, in lieu of scholarship with no purpose other than to impress the tenure committee, may be on the table.  But discussion of any of this is going to come with a lot of cursing, anger and name-calling.

For a long time, the nice men and women who held the positions of power in legal academia got to dictate the tone of the discussion.  It never suited me, as I never quite understood what the hell they were trying to say. It was subtle and, from this trench lawyer’s perspective, pseudo-intellectual. It was always my view that if you have something to say, just say it. Burying it in a thousand nice-sounding but vague words didn’t cut it.

I hope, Dean Yellen, you show up for another round of “whack-a-dean” at Above the Law.  Maybe you can lead the way, even if there are a few lawprofs who have gone far down the road ahead of you, at least on the paths they think will help the situation. 

But for crying out loud, don’t come back if you think you get to dictate the tone of “serious dialogue.”  They aren’t falling for it again. Much as this will sound offensive (as I’ve been told by some of the bolder voices in legal academia who inform me that they would really like to speak straight but fear that their colleagues will look askance at their foul mouths), man up, dean.  The real world has whatever tone its participants choose to give it, whether you like it or not. You don’t tell the other side how to behave, just as they don’t tell you.

And if you can’t lower yourself to engage in a discussion without dictating its terms, then don’t bother pretending you’re trying to help.  If you didn’t realize that there were problems rocking your throne, you wouldn’t be talking to these whiners and malcontents in the first place.  Mean words and nasty names are going to be part of the discussion, not only because that’s how real people communicate but because they are angry with you for being part of the world that brought them misery.

Get off your throne and come talk to the peasants. I can’t promise you they won’t storm the palace, but then, they may well storm the palace anyway.  If they do, you’re being thrown into the dungeon. Trust me, if you don’t like the tone now, you’re going to hate the tone in the dungeon. So get real, get off your throne and take the dialogue however it comes. Even overheated.

When NBC  revealed the white paper providing a limited view of the government’s explanation for why it had the power to kill anyone, American citizens included, at will in the War on Terror, most of us recoiled in horror at the bottom line: If they kill them, they deserve it.  Why? Because we say so.

Of course, there are always others who see it differently. Unsurprisingly, one of those “others” is John Yoo, of the DOJ torture memo fame.  Via Jack Goldsmith at Lawfare, Yoo has offered his views at the Wall Street Journal.

The real story revealed by the memo is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods. Its approach reflects the mind-set of an administration populated with officials who spent the  Bush years decrying military methods then employed and are now trying to impose a weaker law-enforcement approach to combating terrorism. . . .

The memo shows that for the first time in the history of American arms, presidential advisers will weigh the due-process rights of enemy combatants on the battlefield against the government’s interests, judge an individual’s “imminent” threat of violence, and ponder whether capture is feasible before deciding to strike. Under these provisions, the U.S. military’s speed and decisiveness will suffer, even as the intelligence needed to identify drone targets dries up with the withdrawals from Iraq and now Afghanistan.

The memo even suggests that American al Qaeda leaders such as Anwar al-Awlaki (killed in a 2011 drone strike in Yemen) enjoy due-process rights. But in doing so, it dissipates the rights of the law-abiding at home.

Not only are the complaints of a wholesale lack of due process misguided, but the real problem is that we’re even uttering the words “due process” at all.  Not for the benefit of terrorists, Yoo argues, but because affording rights to military enemies “risks stretching those protections a mile wide and an inch deep—weakening them for all Americans.”

And lest you think it’s only the torture-loving Yoo who sees things in black and white, the New York Times  Room for Debate covered the issue, and found others, like Pepperdine lawprof Gregory McNeal, who agree with Yoo.

Military targets — whether persons or objects — are simply not an appropriate subject for judicial review, and this is a good thing.

The Constitution, McNeal contends, isn’t offended when we kill our military enemies, and whose passport they carry doesn’t change the threat.

What appears to give rise to these polar views isn’t a different view of the constitutional command for due process, but rather a problem with the definition of a military enemy.  As the government uses the word “war” as a rhetorical device, it’s meaning has been diminished for some and embraced by others.  This problem was clear long ago, when former Attorney General John Ashcroft explained life to us dopes:

Apparently, this is all a matter of how we define “war”, and who our enemies might be.  Sure, the phrase “war on terrorism” has become ubiquitous in public discourse, but it’s just a phrase designed to capture a sense of gravity.  It’s not literal.  At least I thought it wasn’t.  Ashcroft thinks otherwise.

There is no comparison with the “war” Ashcroft speaks about.  Some will argue that the soldiers in a jihad don’t wear uniforms, so it’s foolish to argue that the lack of a uniform makes them immune from being prisoners of war.  But this returns us to the question of whether this is a war, or something else.  Terrorists don’t wear uniforms.  Terrorists don’t serve a country.  Terrorists don’t fit neatly within the confines of our historic understanding of war. 

This rationale, that anything we chose to call a war thus becomes one, shows a fundamental rift in our American psyche.  We want to be protected from international terrorism, but can’t find a pigeonhole to fit it so that it neatly fits within any recognized paradigm that tells us how to address it.

That was written four years ago. If the lie is perpetuated long enough, it becomes real. Clearly, it’s very real to John Yoo, as it is to others.  By embracing the rhetoric of “war,” it all makes sense. Obviously, judges play no role on the battlefield. Clearly, our Constitution doesn’t dictate who dies in battle. But that requires us to view the world as a battlefield, from Des Moines to Kabul.

The problem with blurring definitions is that you end up with blurred definitions. When Timothy McVeigh bombed the Murrah Couthouse, it wasn’t a declaration of war, but an act of a deadly madman.  When the Twin Towers came down, it was different because they weren’t from here.  The rhetoric changed. War was declared. Americans rallied against a vague group called “Islamic terrorists” who represented no sovereign and wore no uniform.  Rather than consider whether this undermined the definition of war, our frenzy and anger seized control and we let the lines blur.

More than a decade later, we are paying the price for ignoring Orwell.  There will be many Americans for whom the rhetorical device of “war” remains sufficiently convincing to answer the question of whether our President is engaged in the killing of Americans without due process or whether he is fulfilling his constitutional duty to protect us against an aggressor who would destroy our nation. 

Soon after the atom bombs were dropped on Hiroshima and Nagasaki, the Empire of Japan unconditionally surrendered to the United States of America.  On September 2, 1945, a delegation, both in uniform and in the daytime formal wear of diplomats, signed the treaty.

This delegation represented the sovereign against whom America fought and for whom their soldiers died. They had the authority to end the war.  Who would John Yoo look to if his enemy combatants decided to surrender?  No one speaks for those who hate America.  They wear no uniforms. They have no diplomats. They represent no nation. So who, if Yoo has his way and we characterize this as neo-war and the world as the battlefield, would unconditionally surrender if we win?

If there is no one to surrender, there can be no war, because our enemies can never be known and the hostilities can never end.  Maybe it isn’t the same as crime, but it also isn’t the same as war.  But when the targets of our drones to be killed because the President says so are our own people, we cross a line should never be blurred.  And that’s why due process matters before the American government can kill Americans. 

Amid the hoopla surrounding every new shiny must-have toy in the lawyer’s arsenal lurks a time bomb waiting to go off.  Your email address.  Most of us have a few of them, born of necessity from sources like Google, which demand the creation of an in-house email if you want to enjoy its functions.

Then there are the new websites everyone has purchased because somebody, whether marketeer or youth, informed you that it’s no longer cool to have an AOL email address and marks you as a social media dinosaur.  So people switch emails with abandon, keeping up with the skirt height or tie width of the internet.  It’s all good fun, right?

Not according to  Judge Lewis Kaplan’s opinion on appeal in the Worldcom bankruptcy case.

The rulings were entered on the electronic docket, and notice was automatically emailed to CNI’s sole counsel of record, W. Mark Mullineaux, at the email address which he previously had registered with the clerk’s office for the purpose of receiving such notifications. But that was an old email address.

Mullineaux’s new email address was listed in his motion to appear pro hac vice in the case, but he hadn’t updated his profile in the electronic case files (ECF) system. As a result, Mullineaux didn’t receive the court’s notification and failed to file a timely notice of appeal.

The district court wasn’t overly concerned, and granted an extension of time to appeal, based upon the failure to get timely notice and lack of prejudice. The 2d Circuit, however, wasn’t nearly as sympathetic.

District Judge Lewis Kaplan, sitting by designation, wrote, “There is nothing in the history of the rules … to suggest that the drafters sought to provide relief when the fault lies with the litigants themselves” and that “CNI’s failure to receive Civil Rule 77(d) notice was entirely and indefensibly a problem of its counsel’s making, and Rule 4(a)(6) was not designed to reward such negligence.”

Granted, ECF is one of the most horrifically bad systems ever created, nearly impossible to decipher or use.  My personal experience in trying to change things is that it frequently doesn’t work, or at best adds new information without any means of deleting old information that’s no longer valid.  Over the years, I stacked up a number of fax numbers in ECF, as new ones didn’t replace, but merely supplemented, old ones. The upshot was the faxes were sent to the oldest number, the one on top, even though it hadn’t been valid in a decade.

But Judge Kaplan makes plain that keeping transmittal information up to date is the lawyer’s responsibility, and the client will pay a heavy price for our failure.  The ABA says lawyers are ethically required to stay abreast of technology, and even I agree. You don’t have to adore it, but you have to know about it.  Ignorance is no longer cute.

Many of my pals on the interwebz make fun of me for using my old AOL email address that I first got back in the early 90’s.  “Old man,” they call me. To the cutting edge folks, it proves how out of touch I am with technology. It could only be worse if I used a Compuserve email address, since AOL, at least, still exists (and, for those who don’t know) and is making a comeback.

But its not just because I have a really cool early AOL email address (SHGLaw). It’s because I have no interest in changing an address where I have been readily found for decades.  Would you change your phone number for kicks?  The point is that people who want me can reach me, and that I get the emails I need to get.  Whether somebody thinks its a cool address or not doesn’t concern me.

Whether you change email addresses of necessity, such as changing firms, or like a fashion accessory, the duty to keep it current with the court rests on the attorney.  It won’t help to have the coolest email address ever if orders are sent to an old, dead one. Trust me that your clients won’t be impressed. Nor will your malpractice carrier.

P.S. And it wouldn’t hurt if the government brought one of the worst mutts of a system, ECF, into the new millennium. It was outdated when it first arrived, and it’s now a relic of technological incompetence.

H/T Michael Bachrach

Who really don’t like to help people who need them very much. Unless they respect their authority.



Somebody gets to go home without getting hit. Can you guess who?

There is a long list of people who Teri Buhl, self-proclaimed investigative journalist, says she’s going to sue. It looks like she’ll have to add one more to the list.  The problem started when her public twitter profile stated that her twits were not for publication. It headed south from there.

Mark Bennett started the ball rolling after  Gideon engaged Buhl on twitter to find out what the heck she thought she was doing by claiming her twits were “protected.” Tim Cushing picked it up at Techdirt, which angered Buhl sufficiently that she demanded a retort, including an absurd smack at Bennett for using the story on his blog “to promote his business,” because, you know, why else would a lawyer blog?.

But Cushing wasn’t prompt enough to satisfy Buhl, so he asked  Jim Romenesko to publish it instead. Mike Masnick at  Techdirt then ripped her a new one, after which Buhl let everyone know, including  Romenesko who did her a solid, that they were all getting sued.

Whew.

The reaction to Buhl has not been kind. Rather than hum a few bars of Mrs. Robinson, pretty much everybody has responded that she’s utterly nuts, and her efforts to salvage her shredded dignity have only gotten her into deeper trouble. She’s posted various comments to other people’s posts, regaling about her greatness as an investigative “jurno” and how she’s beloved by her fans. The fans have yet to appear to back her up, but they’re probably too busy rereading her old articles from when she had a job to waste their time.

All this is a preface to the reason why I hop aboard this out-of-control train.  As others took note of the wreck, they included the initial screen shot of Teri Buhl’s twitter bio, the one that she created and put on twitter for her adoring fans to know who she was and what they could do with her twits.  It included an image of the “jurno” herself as part the bio.

See that sweet yet professional picture of a woman above the name Teri Buhl? Buhl says you’re not allowed. At least not here, because it’s her picture and she hasn’t given me permission to public it. You see, according to the Buhl doctrine of copyright, it’s her picture and nobody can use it. Kinda like her twits, but different.

That it’s part of the subject at issue means nothing. Fair use doesn’t exist under the Buhl Doctrine.  Ironically, she is apparently unaware that  Antonin Pribetic has copyrighted the letter “B,” and is no doubt preparing a complaint as I type. She did not get his permission to use it, like I did.

Which finally brings me to the point of this post.  The  Knight Center for Journalism in America at the University of Texas, Austin, posted about this hotmess, including initially the screenshot above. And then came Buhl’s copyright complaint:

Update 02/07/13: Freelance reporter Teri Buhl contacted the Knight Center and requested the pictures in her Twitter profile be removed from the story, stating that the images are copyrighted and the Knight Center – along with the journalism websites Poynter.org and JimRomenesko.com – do not have permission to publish them. The Knight Center has removed the photos from the screenshot from her Twitter account per her request.

Fade to black.  This is the lesson for budding journalists in Austin.  Capitulate. Somebody complains? Screams “copyright”!  Fade to black.  Don’t say no. Don’t react with a chuckle and passing mention of fair use. Don’t teach students that a “jurno” doesn’t succumb to threats, no matter how absurd and contrary to the law. Nope. Fade to black. It’s so much easier and less risky.  Journalists wouldn’t want to take any risks, after all.

Buhl offers a laundry list of absurd explanations for her bizarre actions, which have given rise to no shortage of hilarity.  But the treatment received at the hands of the Knight School isn’t funny.  In fairness, they aren’t the only ones to wimp out, with  Poynter’s Jeff Sonderman showing a similar lack of spine.  But then, he’s not charged with teaching the next generation of journalists why they’re deserving of First Amendment protection.

While all of this might well strike us, as lawyers, as utterly ridiculous, given that we would expect those engaged in journalism to have at least a working knowledge of the law as it applies to them, it apparently isn’t the case for those who teach it.  Are they clueless?  Do they not use “fair use” in Austin?

Maybe they just offer professional courtesy to Buhl, as one of the tribe, even though they realize that there is no legal impediment whatsoever to the screenshot of her twitter bio, as the core of the story about her insane claim of unpublishable twits.  But if so, then the message to students is be bold when it comes to revealing the awful truth about others, but when it comes to one of our own, fade to black?  This would be too cynical even for me to believe,

So if it’s not hypocritical circling the wagons as a courtesy to one of their own (whether with or without free donuts), then it’s just plain old capitulation.  Not a good lesson for the next generation of a group upon whom we depend for our information, knowledge and understanding of what is happening in our world.  All the news that’s fit to print, unless someone tells them not to and threatens them with a lawsuit. Then, fade to black.

It sucks to be homeless in Brownsville, Texas.  First, because you’re homeless, which isn’t a great way to be under any circumstances. Second, because a non-profit agency, the Good Neighbor Settlement House on East Tyler Street, has cut a deal with the police to give you up.  From the Brownsville Herald :

Officials believed Jeffrey Paul Cutlip to be like any other homeless person roaming the streets of Brownsville looking for a place to shower and to get a bite to eat.

Then Cutlip made local and national news when, according to police, he confessed in Brownsville to various murders dating as far back as the 1970s in Oregon. Furthermore, a search revealed that Cutlip was listed as a sexual predator in Oregon’s sex offender inquiry system for convictions in 1982.

“He (Cutlip) had slipped below the radar,” Rosales said. “We did not know who the gentleman was. We had no idea he was wanted.”

In an attempt to identify people wanted by the law, the Brownsville Police Department and Good Neighbor Settlement House have signed an agreement whereby the police department will install a system to ID people going through the non-profit agency for services, officials said.

The system will help identify people wanted by local, state and federal law enforcement agencies. It also will help identify people if they are injured and require assistance, Rosales said.

St. Louis lawprof  Eric Miller discovers a problem that lawyers have faced forever: Scholars see the law from the top down, while lawyers see the law from the bottom up.  From  Prawfsblawg (with apologies for the incredibly excessive length and needlessly pedantic tone):

In the words of a friend of mine, who worked for years at a very prominent public interest law firm in the South, “everyone is overlooking everything.”  By this, I mean that the adjudication portion of the criminal procedure syllabus for the most part leaves students with no idea what goes in the sorts of low-level criminal courts so nicely described by Amy Bach in her book “Ordinary Injustice,” which might be thought of as a journalistic follow-up to Malcolm Feeley’s pathbreaking work, “The Punishment is the Process.” 

I’m going to hazard the thesis that the reason we have no idea what goes on in the courts that process the bulk of our criminal cases is an “elite” focus on doctrine.  First, these courts are largely invisible to “doctrine.”  They do not produce many opinions, their other operations are hard to access from the comfort of a law-school office or library, and so there is a paucity of materials readily at hand produced by the courts. Because of our reliance on “well reasoned opinions” (or at least pedagogically-useful-badly-reasoned ones), the gold standard for teaching criminal procedure is either the elite federal court system, or the differently elite state appellate court system, which do produce opinions that are readily accessible from a computer or library. 

Second, state trial and (especially) municipal courts are often bereft of “doctrine.”  There is little doctrine in municipal court, where lawyering depends upon interpersonal interactions between members of the court “workgroup” (as the sociologists put it).  In these courts, appeals to doctrine may actually be counterproductive: a nuclear option utilized only when workgroup relationships break down or do not yet exist. 

It started for mundane reasons. Two Cleveland officers, David Siefer and James Hummel, wanted to stop a 1979 Chevy Malibu because they suspected that it held drugs. They claimed the driver failed to use a turn signal, which is all that’s needed these post-Whren days.  Had the driver pulled over, this wouldn’t even be a footnote in the law. He didn’t, and a chase ensued.

From the Cleveland Plain Dealer :

Officers David Siefer and James Hummel were following the Malibu near Clark and Quigley avenues when they broadcast over police radio that they saw the passenger turn in her seat, get onto her knees and extend both arms toward the rear window as if she was holding a gun. They also thought the passenger was a man.

“He’s pointing the gun. He’s pointing the gun out the back window. Heads up. Heads up. Passenger is pointing a gun out the back window. Everybody be careful,” Siefer said.

At Popehat, Ken does something that needed to be done in his post delightfully entitled Crime: Whale Sushi. Sentence: ELEVENTY MILLION YEARS. A bit hyperbolic, since everyone knows that the sentence for whale sushi is never longer then 90,000,000 years, but Ken is allowed to stretch the truth a bit to make a point.

People reporting on federal criminal justice — whether journalists or bloggers — routinely report on the statutory maximum sentence that a defendant could hypothetically get, an oft-ridiculous figure calculated by taking all the charged crimes and adding up the maximum punishment for each. This is usually followed by some sort of pronouncement that THIS PERSON CHARGED OF MINOR CRIMES FACES MORE JAIL TIME THAN YOU’D GET IF YOU BEAT A TODDLER TO DEATH WITH AN UNCONSCIOUS NUN WHILE RAPING A BLIND LIBRARIAN, or words to that effect.

The problem is this number — the sum of the maximum sentence for all the crimes charged in a federal case — usually bears almost no relation to the sentence the defendant actually faces.

Since Ken’s busy, I’m just writing to thank Instapundit, Boing Boing, Volokh, Will Wheaton, John Scalzi, Something Awful, Mark Cuban, Radley Balko, Gawker, Deadspin, Ars Technica, Hot Air, Zero Hedge, and James Taranto at the Wall Street Journal’s Best of the Web Today for all the links to this post. We hope your readers will stick around.

Special thanks to Paul at the New York Times (you know who you are) and all the guys at Reddit who pushed this post to the front page. Keep rockin’.