Senator Patrick Leahy was the hero of the great unwashed, those of us who exist in a world where email and internet are a part of our everyday life, and the idea that we weren’t feeding it straight into the belly of law enforcement was our boldest dream.  And then he wasn’t.

At Overlawyered, Walter Olson sees the curiosity of the post Newtown massacre debate much as I do.  On twitter, he coins a great word, blamestorming :

Who to blame after a freak atrocity? For many of those who’ve felt obliged to comment, the question seems rather who not to blame.

After the Sandy Hook school shooting, as well as after other shootings, those of us who are skeptical about gun controls are often asked: So what are we suggesting should be done about the shootings? If we’re not suggesting gun controls (as opposed to proposals such as allowing teachers to be armed, increased concealed carry rights outside schools, providing school guards, and the like), the argument goes, we’re not taking gun tragedies seriously.

Now I generally don’t support the “don’t just stand there, do something” school of criminal law. When all the proposals seem likely not to work, or do more harm than good, implementing one of them for the sake of “doing something” strikes me as a mistake.

Nothing?  That’s it?  If there is no magic bullet (get it?) solution to such tragedies, we throw up out hands and walk away?

But let me offer a concrete analogy (recognizing that, as with all analogies, it’s analogous and not identical). Every day, about 30 to 35 people are killed in the U.S. in gun homicides or gun accidents (not counting gun suicides or self-inflicted accidental shootings). And every day, likely about 30 to 35 people are killed in homicides where the killer was under the influence of alcohol, or in alcohol-related drunk driving accidents…

So what are we going to do about it? When are we going to ban alcohol? When are we going to institute more common-sense alcohol control measures?

Well, we tried, and the conventional wisdom is that the cure was worse than the disease — which is why we went back to a system where alcohol is pretty freely available, despite the harm it causes.

So his solution to the murder of 20 children is to ban alcohol?  No, you dolt. Eugene is drawing an analogy to show the hypocrisy of our concern over the deaths of children and the failure of prohibition.  His solution, thus, is to not ban guns. See what he did there?

We should certainly consider proposals that aim to ameliorate the problem, and weigh their costs and benefits. But we should not presume that there’s somehow a moral imperative to Do Something. In fact, there’s a moral imperative not to do something that’s likely to make matters worse.

As one who regularly cautions against knee-jerk, simplistic responses to tragedy, I can well appreciate Eugene’s message.  But then, there is this nagging sense that the discussion has little to do with coming up with rational changes that might alleviate the potential for “freak atrocities” so that nobody messes with stuff we like to do. 

Though I’m not a gun guy, and have no interest whatsoever of packing heat as I stroll down the street, and have no desire to have others strolling down the street with their weapon strapped to their ankle just in case, the arguments proffered by those who disagree with me are not unreasonable or unsupported.  One of the most difficult point raised is that, given the Heller decision, the right to keep and bear arms is a fundamental, personal right. 

Whether I could have slept just as well at night had the Supreme Court come out the other way on Heller, I very much appreciate the fact that the right is established in law, and that I cannot rationally promote respect for only those constitutional amendments I like while advocating against those that didn’t match my personal tastes,  Hooray for the first, fourth, fifth and sixth, but screw the second?  If I took that position, I would be shooting blanks.  For those who adore the second but couldn’t care less about the others, the same it true.

Yet, none of this leads to anything remotely suggesting something worth doing. While I can understand and appreciate Eugene’s admonition not to make matters worse, I hesitate to believe that we’ve exhausted all rational thinking and have reached the point where we throw up our hands and walk away.  Sure, there are crazies making loud, stupid noises all over the place.  Plenty of gun guys are cringing at the mere mention of Wayne LaPierre, who has brought more embarrassment on gun ownership than Jim Brady.

But we’re no closer to a worthwhile discussion of things that can be done to improve safety without sacrificing rights or making things worse.  It’s not because there is no fix, no tweak, no limitation that can make things better, but that too many of the thoughtful people, like Eugene Volokh, are spending all their time and capital shifting blame away from their beloved sacred cows.

Unless and until we start to consider things that can be done, nothing will change. It’s possible that nothing should change, but we can only know that after all the screaming and blaming stops, and people start putting their efforts toward something more useful than marshalling the arguments to save their favorite things.

At PrawfsBlawg, Northwestern Law Dean Dan Rodriguez has been offering his insight on the future of law school from his thoroughly modern dean chair.  In his latest missive, he drops a dime.

As reformists and irritants likewise insist, we are going to increase our expectations of full-time faculty members in order to realize cost savings and take our foots off the tution (sic) pedal.  Market pressures make the exhortation “pay the bastards less” ring rather hollow — and all the shouting and screeching from the disgruntled won’t make it otherwise.  Salaries for incumbents will remain more or less where they are (albeit with rarer raises).  Faculty hiring is what will take the hit.  In this environment, law schools will be asked to do more with less.

Refusing to succumb to the screeching of “irritants” who don’t appreciate the  awesomeness of scholars, Rodriguez nonetheless gives the bad news of how law schools, the profit centers of academia, will demand that lawprofs hereinafter work for a living.

His first new demand of the professoriate is (hold on to your hats, now), that they will have to . . . teach.

Teaching regularly and well and with sufficient accomodation (sic) to institutional needs, as these needs evolve in this new and difficult era.  Deans, including this one, will be reticent to enter into permanent teaching reduction agreements.  Scheduling will need to follow the imperative of student learning and sensible organizational management, not principally the convenience of full-time faculty members.  Faculty leaves, whatever the reason and whatever past practice, should be discretionary and timed around the needs of the school and its learning environment.  And teaching must be excellent — sophisticated in content, coherent in expression, up-to-date, and connected increasingly to the essential project of making our students into first-rate young lawyers;

What law student doesn’t want to be turned into a “first-rate young lawyer”?  Especially older students, who would be happy to be turned into a “young” anything, but that’s besides the point. The gist is that lawprofs will no longer be allowed to dictate permanent teaching reduction agreements to suit their convenience, but instead by expected to teach the courses the school needs taught.

That means that some poor schmuck is going to have to teach professional responsibility, even though they have no interest in teaching anything other than Con Law (everybody wants to teach Con Law, only using different amendments) and Law and Nietzsche.  Some baby lawprof is going to get Evidence rammed down his throat and he can take it or get a real job. Bummer.

It’s unclear what Rodriguez means by “teaching must be excellent.”  Does this reflect a break from the past where teaching sucked?  Does this mean that law schools will no longer be tolerant of scholars, wholly disinterested in wiping snotty noses, wasting semesters by regaling their students with their pet theories or personal peccadilloes?  What makes this confusing is that Rodriguez, according to his bio, never practiced law. Aside from a year clerking for 9th Circuit Judge Alex Kozinski, his every paycheck came from academia.  How then, one wonders, would he have the slightest clue what it takes to turn students into first-rate young lawyers?

In the comments to this post, an anonymous young (read “untenured”) professor raises the issue:

I’m a somewhat new (untenured) professor and a CJA attorney for criminal appellate matters. I take students on to do as much of the work as they’re capable of, and I teach them as much as I can commensurate with representing a (real) client. I get paid by the court, and they get paid by the court. Luckily, I’m at a school that, for all I can tell, values this experience. It also informs my teaching and scholarship in demonstrable and substantive ways. This, by the way, in addition to a heavy service load, full teaching schedule, and scholarship. Here’s the thing: I’m almost certain that if I went on the job market for a higher-tier school, I’d have to downplay or virtually hide this work.

I have to wonder whether CJA knows that he’s billing for law student hours, or whether he’s paying the law students the full freight, but I digress.  Such naivete, thinking that his appellate practice is valued in the new paradigm of teaching excellence.  Orin Kerr schools him in response.

Anon, sadly, that’s pretty much true, although it may depend somewhat on the school. I argued a Supreme Court case on an issue I had written about in my work while I was doing a visit at a higher-ranked school. I tried not to bring up the case during the visit, as my sense was that it would probably hurt my candidacy by making me seem too much like a lawyer.

For most, arguing before the Supreme Court is a highlight, a good thing that most lawyers never get to do. Not that it adds much to a lawprofs ability to turn minds of mush into first-rate lawyers, since few, if any, will ever do so, and the experience bears little correlation to what happens in the trenches, but still, it’s kind of impressive.  Not for lawprofs, however. It’s a scarlet letter, a taint, to be hidden so none of the other scholars laugh at you and call you dirty names, like lawyer.  Ewww.

But fear not, despite this environment of doing the hard and dirty work of teaching undesirable courses to unappreciative teacups.  There will still be room for scholars.

Insofar as scholarship forms an important part of the modern faculty portfolio, expectations of excellent, impactful scholarship should be high — indeed, in this difficult environment, especially high.  Law profs have an exceptionally enviable gig.  Let’s just suppose that faculty members need to demonstrate their suitability for this gig on an annual basis, and with unimpeachable evidence that they are doing their scholarly work at a level that befits this great job.

Yes, lawprofs do have “an exceptionally enviable gig,” and it is therefore hardly a burden to demand that they do pretty much exactly what they were  doing before the New Normal, like writing “excellent, impactful scholarship!” ([S]ee Harry Potter and the Half-Crazed Bureaucracy, 104 Mich. L.R. 1523 [2006].) 

The takeaway is that some rookie lawprof is going to be miserable being saddled with teaching the crap course no one else wants, like Evidence, and that the law porn finding its way to scholarly mailboxes everywhere will include the word “excellence” as often as possible.  

And as before, lawyers need not apply, because that would just feed into the arrogance of the irritants, who just don’t get what law school is really all about. 

Having spent an unfortunate amount of time recently traveling on Interstate 40 in North Carolina, this story is very personal to me.  While my vehicle adhered strictly to the speed limit, as it always does, other cars whizzed by at a fairly high rate of speed, their drivers often waving at us in a holiday greeting preferred by locals using only one finger.  Driving the speed limit on I-40 is not really a good way to make friends.

But when Corporals Bass and Pope of the Sampson County sheriff’s office spied a green minivan traveling at the ridiculously high rate of speed of 73 in a 70 mile-per-hour zone, they took notice. Based upon my personal observation, it was likely because the van was the slowest vehicle on the highway by a wide margin. 

What they saw “concerned” them. From the Newspaper.com :

The second-highest court in North Carolina last week ruled police had no business stopping a car because its occupants appeared to be driving while nervous. On April 15, 2011, a pair of Sampson County sheriff’s deputies were running a speed trap on Interstate 40 when they noticed a green minivan. Corporal Bass and Pope each testified the vehicle slowed from 73 MPH to 65 MPH in the 70 MPH zone and that the driver and passenger stared straight ahead and “appeared nervous” as they passed.

The officers pulled out and caught up to the minivan. When the patrol car pulled along side, the minivan occupants did not make eye contact. The deputies claimed they saw the vehicle cross the fog line and was driving slowly, so they pulled it over for “unsafe movement.” A dashcam video of the incident shows no crossing of the fog line or other evidence of unsafe driving.

We find it hard to believe that these officers could tell Ms. Canty and defendant were ‘nervous’ as they passed by the officers on the highway and as the officers momentarily rode alongside them,” Judge Cheri Beasley wrote for the court.

The judges also dismissed the idea that the minivan’s slowing after seeing a patrol car running a speed trap [provided cause for the stop].

“The reduction in speed standing alone could be explained a number of different ways, including normal apprehension many people feel when approaching a law enforcement officer,” Judge Beasley wrote. “Nervousness, failure to make eye contact with law enforcement, and a relatively small reduction in speed is ‘conduct falling within the broad range of what can be described as normal driving behavior… Based on the totality of the circumstances, these officers lacked reasonable suspicion to initiate the traffic stop that resulted in the search and seizure of the weapons in this case.”

The judges declared the lawyer in this case should have filed a motion to suppress the evidence gathered during the traffic stop. Because the defense counsel was “ineffective,” the three-judge panel ordered a new trial in which the motion to suppress would likely succeed.

We cannot discern a strategic advantage by not filing a motion to suppress the incriminating evidence. Defense counsel apparently realized that the search was illegal but chose not to file a motion to suppress…

Despite our secular government’s tepid refusal to recognize that all the best deals on shiny merchandise are grounded in our historic Christian ethic, the Obama Administration has snuck a little gift for immigrants under the tree.  No matter how many haters prefer to arbitrarily rail against groups speaking different languages or enjoying different customs than their grandparents did, ICE-master and Obama elf Janet Napolitano announced the change :

Department of Homeland Security (DHS) Secretary Janet Napolitano has directed ICE to focus its resources on key priorities in all aspects of its immigration enforcement efforts.

This guidance limits the use of detainers to individuals who meet the department’s enforcement priorities and restricts the use of detainers against individuals arrested for minor misdemeanor offenses such as traffic offenses and other petty crimes, helping to ensure that available resources are focused on apprehending felons, repeat offenders and other ICE priorities.

The new policy places stricter conditions on when Immigration and Customs Enforcement sends requests, known as detainers, to local law-enforcement agencies asking them to hold suspected immigration violators in jail until the government can pick them up. Detainers will be issued for serious offenders — those who have been convicted or charged with a felony, who have three or more misdemeanor convictions, or have one conviction or charge for misdemeanor crimes like sexual abuse, drunken driving, weapons possession or drug trafficking. Those who illegally re-entered the country after having been deported or posing a national-security threat would also be detained. But there would be no detainers for those with no convictions or records of only petty offenses like traffic violations.

Fires know no religion and take no holidays, so when the alarm went off in Webster, northeast of Rochester, volunteer firefighters Michael J. Chiapperini, 43, and Tomasz Kaczowka, 19, went to work.  On Christmas Day, 2012, they no longer live. Had they died fighting the fire, it would have been mere tragedy, but that was a risk they knowingly undertook.

Dying in a hail of bullets as they and other vollies approached the burning house wasn’t part of the deal.  Fire isn’t the only thing that persists despite the joyous season.  So too does mental illness, of the sort that manifests itself in pointless murder.

The  New York Times explains:

But it apparently was a trap, the authorities said. There were a house and a car burning. There was also a waiting killer, who had stationed himself like a sniper on a berm above the firefighters.

Before they could begin to extinguish the fire, the firefighters were met by a burst of gunfire. Four were hit by the volley of bullets, and two died.

For a few hours, the scene was chaotic: flames ignited adjacent houses as the police frantically searched for the gunman. They would find him dead near the beach, with a self-inflicted gunshot wound to the head.

There will be no trial or soul searching. The shooter, 62-year-old William Spengler, is dead too, and almost certainly mentally ill. There is no reason to suspect he held any particular malice toward the two dead firefighters, but they just happened to be the ones who showed.  Just doing their volunteer job of saving lives and property.

Since the Newtown tragedy, talking heads angrily debate the solution so that it never happens again.  And yet it did, even if it was outside a school and the victims weren’t first graders.  Only people whose perspective is warped argue over which innocent victim’s death is worse. They are all needless and horrible. They were all deserving of life.

All the pieces happened again in Webster. Guns. Mental illness. People who didn’t deserve to die, but did.  Differences, for sure, but death unifies the stories. 

Most people will rejoice in the fact that Stengler, the madman who murdered the two and wounded others, took his own life, just as they did for Adam Lanza, the Newtown shooter.  Maybe I’m the only one who takes no comfort in the death of either. Perhaps they are as evil as most will assume, but they were still human beings, and they both suffered from their own demons who took a beautiful, pure baby and turned them into killers.  Maybe with the right care, they would have done nothing to make their name known as a killer. 

Despite all the years Stengler spent in prison, from 1981 to 1998, for bludgeoning his 92-yearold grandmother to death, he apparently didn’t come out more mentally sound than he went in. So much for the benefits of prison for the mentally ill. 

Presents under trees have been turned into cinders.  Presents under trees will go unopened this morning. Instead, the ground will be opened to accept the remains of the victims.  And there will be more angry debate and name calling about guns, mental illness and armed guards in schools, each voice screaming about how its solution is right and everyone else is stupid, evil, liberal and deportable.

This presupposes that there are solutions to all the bad things man can do.  Pieces of the arguments make sense, but only to a degree that can be embraced by the myopic and simplistic.  We are a wondrous and terrible creature. We do acts of kindness and terror.  We show monumental compassion and horrible hatred.  We are strong and fragile.  Every solution has its merit, and yet fails to fix who and what we are.  Anyone who can’t see the arguments on all sides chooses to be blind.

For the families of the dead firefighters, Christmas Day will be a day of mourning, arranging for funerals and trying to find an explanation for why this happened to them.  They won’t find an answer, even though they may grab hold of anything that brings them a slight degree of comfort.  They are entitled to whatever brings them comfort.

The rest of us are not entitled to seize other people’s tragedies and use them for our own purposes.  Not even if emotions are strong, and we really, really believe our solution is the answer.  There is no magic bullet that will end tragedy and violence at the hands of human beings.  If you feel the need to do something, anything, then gather your children today, Christmas Day, make them put down their shiny new electronic toys and make sure they know they are loved. 

While even this won’t prevent mental illness or access to a weapon, whether a gun or bomb, a speeding car, machete or fire, it is one of the few things we, as human beings, can do to make this a better world.  And no one will call you mean names for doing so.

It was near the corner of 57th and 10th, midtown but far enough west that no respectable person was likely to see it.  There is little information as to the homeless man involved, except that he was eventually taken away by ambulance.  And not because he had a bullet embedded in any part of his body.

But  the image is still very wrong.



and…



There are other photos, all similarly mundane, but for the fact that they show a homeless man being held in a body bag on the sidewalk.

Ignite Revolution described the scene:

The man could be heard saying to the officers, “you´ve had me on the ground for an hour! I can´t get transported or nothing!? when you take this off my eyes, I´m taking everybody´s names and numbers!” In response, the officers just stood around laughing because they know, just as well as we all do, that NYPD officers can get away with almost any kind of mental, verbal, or physical abuse and violence against those they arrest.

At the Red Tape Chronicles, Bob Sullivan raises a common annoyance in a way that leaves every reader stupider for having been there.

Can the New York Yankees change the First Amendment and make their fans agree to the change? They tried recently.

“Ticket holders acknowledge and agree that the Yankees’ ban on foul/abusive language and obscene/indecent clothing does not violate their right to free speech,” the team wrote recently in a new far-reaching set of fine print published in the October edition of Yankees Magazine.  The phrase appears on tickets, too.

Anyone who’s been to the Bronx recently probably wouldn’t fault an attempt to make it more family friendly, but can a baseball team change the Constitution and force you to accept it?

So the Yankees want to limit bad behavior in their house? Not a terribly controversial  notion. But when Sullivan asks whether a baseball team can “change the Constitution,” brain cells begin to die.

Sullivan relies on a new book called “Boilerplate,” by lawyer Margaret Jane Radin, which raises the usual complaints about the small print that goes along with most purchases of good and services.

Radin’s point is that contracts, by definition, involve two equal parties that negotiate terms, while fine print is issued on a “take-it-or-leave-it” basis. (Just try to negotiate a lower early termination fee or strike out any clause when you sign a cellphone agreement.)  In layman’s terms, fine print is merely a list of bad things that can happen to you, the consumer. You might get hit with a penalty fee; your service might be terminated; your right to join a class-action lawsuit is surrendered.

Well, no. Some contracts are negotiable. Some are take it or leave it. Sometimes the parties are equal. Sometimes not. They are all still contracts.  For the most part, we have a choice. Nobody forces you to sign up for a couple of years for cellphone service, but if you want the free phone, that’s the giveback.

The bigger problem than contracts of adhesion are the click-wrap contracts that no one ever reads. But then, we’re so deluged in contracts and legalese that who has the time or interest? If Justice Scalia can’t be bothered to read the closing documents for a house, why should anyone else?

But Radin, and hence Sullivan, is very wrong when they assert that the small print is the equivalent of some corporate lawmaking. Notably, legislatures can prohibit the waiver of rights in small print. That is lawmaking. No small print can require something unlawful, even if the nice customer service rep thinks otherwise.  No small print trumps the law.  But when the law is silent, the small print takes over.

And why not? Many people have come to feel (note the use of the word “feel” rather than “think”) that they are entitled to enjoy the fruits of someone else’s effort with no strings attached.  By that, I don’t mean a term of years without an early termination fee, but without whatever additional crap someone put into the small print.  Even with the recent Instagram fiasco, where they laid claim to the right to sell people’s pictures, people had a ready choice. Say no. Don’t use the service.

But, you say, I want to use the service. I like the service. No, I love it! And I am entitled to use whatever I love and they shouldn’t be allowed to dictate the terms of service. Radin fuels the sense of entitlement:

“This is creating a mockery of state legislatures. We elect legislators, they decide something is important and debate it, then vote on a law, then it becomes law,” she said. “Then corporations write rules and they effectively become law, contradicting what the legislature did. What we think of as a contract is really important to our conception of social order. Think of how many people are affected by (boilerplate language). If it is thousands or millions of people, that’s letting a firm create a new legal universe.  That undermines our rule of law.”

This is utter nonsense.  Coming from a lawyer, it’s inexcusable, as nonlawyers will read it and believe that if a lawyer said so, there must be some merit to it. There isn’t, and Radin doesn’t merely disserve the ethical consideration of educating the public, but murders it by making people stupider.

Writing a book is a great way for lawyers to try to  establish credibility and distinguish themselves from the pack. Potential clients are very impressed that you’ve written a book, even if no one buys it or reads it.  To maximize the likelihood that someone will read it, authors frequently strive to be controversial and novel, sometimes writing absurd and ridiculous things in the hope that someone will notice they exist. 

When it comes to lawyers, however, the right to opine crazy isn’t unlimited.  Railing against the “tyranny” of small print is fine. We all hate it, and there are certainly substantial arguments to be made against click-wrap terms, which nobody reads, or the terms and conditions set forth inside packaging that no one sees until after a purchase is complete, the product opened and/or unreturnable. 

But we do not have the right to conflate small print with corporations sucking away our constitutional rights or creating a new legal universe.  That feeds the angst, the conspiracy theorists and the disenchanted, but it’s fundamentally wrong from a legal perspective, and there is simply no viable argument to support it.  That’s where the line gets drawn.

Yet Radin wrote a book. Sullivan wrote about the book. And somewhere, sometime, someone may stumble across what they wrote and challenge it from centerfield at a Yankee game.  And they will never make it to the seventh inning stretch.  Small print may suck, but legally, its fine print unless the law otherwise prohibits it.  You are not entitled to feel otherwise.

H/T Ken at Popehat

At Volokh Conspiracy, Orin Kerr raises a troubling 4-3 ruling out of North Carolina, State v. Helen, that held the Fourth Amendment allows a search and seizure based upon a “reasonable” mistake of law.  The facts, as Orin rightly notes, are about as good for the prosecution as they get.

An officer spotted a car with a broken rear right brake light. The officer pulled over the car, and the traffic stop eventually led to the discovery of drugs in the car. The defendant was convicted, and on appeal persuaded the North Carolina Court of Appeals to adopt a rather surprising interpretation of the traffic laws. According to a long statutory analysis from the North Carolina Court of Appeals, interpreting several archaic sections of the traffic code, it was actually legal to have one broken brake light as long as the other brake light functioned properly.

A divided North Carolina Supreme Court ruled that the stop was constitutionally reasonable. The officer had a reasonable belief as to what the traffic laws meant, the majority reasoned, and he acted reasonably. Because the Fourth Amendment requires reasonableness, this is all the Fourth Amendment requires and the resulting stop was constitutional.

The dissent agrees that the officer acted reasonably in a generic sense, but it argues that we would not want to systemically allow stops of people who are not breaking the law at all based on erroneous officer understandings of what the law is. The dissent also points out that this is like an exclusionary rule case in disguise: The majority’s reasoning is akin to saying that there is a good faith exception at the remedies stage, the kind of thinking that should not infuse the court’s reasoning at the initial stage of whether a constitutional violation occurred.

[A]s a Criminal Law professor, I can’t help but approach the question by reference to the doctrine of mistake of law in criminal law. When a citizen makes a reasonable mistake of law as to what is criminal, the general rule is that ignorance of the law is no excuse. If a citizen reads the law and perfectly reasonably thinks his conduct is lawful, only to have a court take a surprising reading of the criminal law and say he is guilty, the courts say “enjoy your time in prison, Mr. Marrero.”

Math. The bane of lawyers, unless it’s a number divisible by three. Malcolm Gladwell famously postulated in his book  Outliers that it takes 10,000 hours to achieve expertise. That’s a very long time to a young person. 

In contrast, Tim Ferris shows how one can create the appearance of expertise in a mere four weeks, and thereafter enjoy the four hour work week.

• Join 2 or 3 related trade organizations
  
• Read 3 top selling books on your topic
  
• Give one free 3 hour seminar at the closest well-known university
  
• Give 2 free seminars at branches of two well-known big companies such as AT&T or IBM
  
• Offer to write 1 or 2 articles for trade organizations
  
• Join a service that journalists use to find experts to quote for articles

Nevertheless, Rachel became a “4 hour expert” in starting virtual law offices by generating publicity for herself, and then using that publicity to manufacture expertise in starting VLOs. Now she sells the same “4 Hour” model to other people, which you can do with just about any area of law. But is the 4 Hour method really worth anything to a law practice in the long run…?

Jordan’s envy grew out of an online article by  Rachel Rodgers in Forbes.  He found it astounding that a legitimate media outlet like Forbes would publish something so utterly vapid and worthless.  There was a sense of blame directed at Rodgers, but it was misguided.  Don’t blame Rachel Rodgers for effectively executing a scheme to circumvent competence. 

Sure, she can be blamed, as a new lawyer, for ignoring the ethical implications of her proposition, but then, young lawyers of the view that the internet is an ethics free zone, or that ethics are archaic, or perhaps ethics are a weapon used by old lawyers to keep young lawyers in their place, her philosophical distaste for ethics can explain it away.

It would be far more worthwhile to ponder the question of why any legitimate source of information would be party to a scheme like this.  After all Tim Ferris’ bullet points can’t be accomplished without the complicity of others who, by inviting, allowing or acquiescing in the scheme, make it work. 

One can’t give a seminar, free or otherwise, at a well-known university unless the university allows it.  The kicker is that it’s free, and free is always a tempting price.  At the same time, universities tend to have a relationship to knowledge and education, some even scholarship, and one would expect the university not to allow someone to speak on campus who lacks the ability to make people smarter.  In fact, one would expect a university to say “absolutely not” to someone who is so lacking in substance as to have the potential to make people stupider. 

And yet, having kept an eye on people who speak at universities, including their law school, I find that isn’t the case.

Then there are the “well-known big companies such as AT&T or IBM.”  One would expect that they would be a bit more critical of the competence of those allowed to give seminars.  But again, my eagle eye has taken note of some well-known law firms who have welcomed self-proclaimed social media experts with open arms. 

Trade organizations are always looking for free articles for their publications, depending as they do on the kindness of strangers and, since their members are busy working, often lacking sufficient fodder to fill their next issue.  And when it comes to journalists, they couldn’t care less who they get a quote from, as long as it’s pithy and brief.  It’s just the lunch meat in their journalistic sandwich.

What all this relates to is credibility.  There are three types: attained, ascribed and attributed.  One attains credibility by one’s efforts and deeds, which is the sort of expertise Gladwell writes about.  This is credibility that is earned through hard work and accomplishment.  

Attributed credibility is the sort that someone else gives you, such as when a reporter tells a story in which you are described as an expert.  Whether or not you are, in fact, an expert is of no moment; the mere fact that someone calls you an expert means that whatever you have to say is experty.

Ascribed credibility is the cred one gives oneself. It is by far the weakest of the three kinds of credibility, and thoughtful people realize that it’s just as likely to be a product of delusion or deceit as a reflection of merit.  Tim Ferris recognized this, which is why his scheme relies on attributed credibility from otherwise credible institutions.

Is it fair of Jordan to question Rodgers’ effective use of this scheme to manufacture credibility?  Of course it is. The scheme diminishes the value of effort, of achievement, of the attainment of expertise, by substituting the feigned appearance for the substance of expertise.

But the scheme cannot work without two things happening. First, sources perceived as credible allow the incredible to bask in their reflected credibility.  And second, the rest of us fail to subject claims of credibility to the barest scrutiny.  They allow it. We accept it. 

While this not only fails to establish young lawyers and adherents of the number 4 as credible in fact, but impugns them for having seized upon a scheme that is deceptive at its core, there remain many who can’t be bothered giving any of this enough thought to question it.  And for those who recognize the fallacy of manufactured credibility, but refuse to speak out against it, they too are party to the scheme.

On the other hand, achieving real expertise is not only hard, but takes a very long time. Far too long for those who demand your immediate adoration.  Just do the math.