At Concurring Opinions, Omer Tene, an internet privacy scholar who is hanging out at Stanford Law School for the time being, writes:

One of the most significant developments for privacy law over the past few years has been the rapid erosion of privacy in public. As recently as a decade ago, we benefitted from a fair degree of de facto privacy when walking the streets of a city or navigating a shopping mall. To be sure, we were in plain sight; someone could have seen and followed us; and we would certainly be noticed if we took off our clothes. After all, a public space was always less private than a home. Yet with the notable exception of celebrities, we would have generally benefitted from a fair degree of anonymity or obscurity. A great deal of effort, such as surveillance by a private investigator or team of FBI agents, was required to reverse that.

Now, with mobile tracking devices always on in our pockets; with GPS enabled cars; surveillance cameras linked to facial recognition technologies; smart signage (billboards that target passersby based on their gender, age, or eventually identity); and devices with embedded RFID chips – privacy in public is becoming a remnant of the past.

Location tracking is already a powerful tool in the hands of both law enforcement and private businesses, offering a wide array of localized services from restaurant recommendations to traffic reports. Ambient social location apps, such as Glancee and Banjo, are increasingly popular, creating social contexts based on users’ location and enabling users to meet and interact.

What is curious about Tene’s perspective is that he’s Israeli, a nation-state that has been under threat of terrorist annihilation from the moment of its creation. Israeli’s knew how it feels to have a bus of children blown up decades before terrorism was part of the American lexicon. Yet privacy, the bane of order and control, remains a concern for him.

As he notes, we have willingly handed the government our every move on a silver platter, from our credit cards, internet usage and cellphone data.  Every drug dealer I’ve ever known, and I’ve known a few in my time, hooked a device to his belt as soon as he could, and that device may have made his work easier, but gave his nemesis an incredibly easy tool to out his crimes.  It rarely occurred to any of them that they were handing over their privacy with a beeper, a cellphone, a smartphone, as they spent little time reflecting on the nitty-gritty of how electronic devices worked. 

Nor do most of us.  And yet, the courts, for all their technological ignorance, know enough to make clear that the third party doctrine has undermined any reasonable belief in our privacy.  Tene raises the next level of intrusion, facial recognition.

Facial recognition is becoming more prevalent. This technology too can be used by law enforcement for surveillance or by businesses to analyze certain characteristics of their customers, such as their age, gender or mood (facial detection) or downright identify them (facial recognition). One such service, which was recently tested, allows individuals to check-in to a location on Facebook through facial scanning.

Essentially, our face is becoming equivalent to a cookie, the ubiquitous online tracking device. Yet unlike cookies, faces are difficult to erase. And while cellular phones could in theory be left at home, we very rarely travel without them. How will individuals react to a world in which all traces of privacy in public are lost?

It’s an excellent question, although no one seems to give it much thought until after they’re in trouble.   Dan Solove argued that the Katz reasonable expectation of privacy test has run its course, and it was time to abandon it in favor of a new doctrine that will protect privacy going forward.  Orin Kerr disagrees, arguing that we can cruise along using the same old rules that eliminated most privacy before the tech revolution, and adopt them to lose all privacy going forward.  Even  Supreme Court Justice Sonia Sotomayor wrote that it may be time to reconsider the third party doctrine.

Are we seriously reduced to walking around the mall in masks in order to hold on to the last semblance of privacy?  We are the willing victims of technology when it comes to the ability to know all there is about us, and with every new application comes a better way to either sell us something or own our soul.  We love the shiny convenience far more than we hate the intrusion. 

There is no going back to the farm now that we’ve seen digital images of Paree. But I don’t want to walk down the street looking like a masked wrestler (no comments about this, please).  And regardless of whether I have anything to hide, privacy still matters. I don’t begrudge anyone who feels compelled to put their status on Facebook, but my status is none of your business.

So while the opportunity to protect privacy via technology is long gone, there remains a question of whether the protections offered by law will adapt to our reasonable expectation of privacy, not because the government doesn’t have the tools to know everything there is about us, but because we want and expect our privacy to be protected from the government anyway.  It’s not that Katz is dead, but rather that it’s not controlled by the marvels of technology but by the limitations under which we expect our government to function, one of which is to respect of our privacy despite its ability not to.

Or we can just walk around in masks.  Because that won’t be uncomfortable or awkward.

Some people point to Bain Capital, a vulture capital firm whose model is to strip a company’s assets, leverage whatever can be leveraged, suck out the cash and leave the business to die, as proof that Mitt Romney is heartless.  As if heartlessness is a bad thing.

Another way to look at Bain is that Romney seized upon a perfectly lawful means (despite the HuffPo’s snarky  suggestion to the contrary) of putting nonproductive businesses out of their misery while making good money off it, as proof that Mitt Romney is a smart businessman. As if being a smart businessman is a good thing.

Seizing opportunity wherever it can be found is as American as apple pie.  Until recently, societal norms prevented most Americans from harming others in the process.  We chose not to hurt people for our own financial gain because it was the wrong thing to do.  Ah, the good old days, when the wrong thing to do mattered.

The  New York Times has an editorial about the SEC’s implementation of a law enacted last April that will open up vast new profitable areas for lawyers:

Just what grandpa needed. Soon retirees and other investors will be barraged with advertisements for private stock offerings — via mail, cold calling, television, radio, billboards, the Internet and so on.

Such advertising, which used to be banned under federal securities law, will make it easier for hedge funds, venture capitalists, start-ups and other nonpublic companies to find investors. It will also make it easier for hucksters and rip-off artists to lure people into unsuitable investments and outright frauds because private offerings are not subject to disclosure requirements and other investor protections that apply to publicly held companies.

Every time a legal marketing cheerleader argues that people aren’t misled by deceptive lawyer advertising, I chuckle. Because people, even lawyers, don’t fall for the Nigerian lottery scam. Same with the nice folks who contend that nanny government is inherently bad, and there is no need for rules to distinguish truth from lies to protect grandpa from his own ignorant, stupidity or greed.  Or, that the stupid deserve to be ripped off, as part of some natural order.

For those who think Bain Capital reflects Romney’s mean spirit, the SEC’s failure to include safeguards for the vulnerable, like grandpa, falls squarely on the administration of the empathetic Obama administration.  What Congress did can be explained as an effort to stimulate business, bringing capital out from under the mattress so that innovators, start-ups, new blood, will create the next miracle that will shake us from our financial doldrums.  A good thing.

At the same time, grandpa can’t even buy laundry detergent without getting scammed, so the likelihood that he has the capacity to perform due diligence, or even grasp what he’s buying, is slim to none.  Remember, that’s your inheritance he’s going to lose.  And when grandpa is eating cat food, you’re going to feel bad and send him over a pot roast once a month.

But the good news is that this offers opportunity for lawyers. Biglaw will polish up its white collar credentials by snatching up former prosecutors whose credentials impress hedgefund managers even though they’ve never defended anyone in their lives. There’s a thin line between risk and scam, and when an investment heads south, you can be sure that the losers will cry fraud.

Then there are the civil litigators trying to clawback grandpa’s pension before it all ends up on a sloop in the Grand Caymans, far from the maddening crowd.

Neither, however, add any value to society.  Whether lawyers are sucking money from the accused fraudsters, or copping a third out of whatever can be recovered for grandpa, it’s just skimming off the top of a circular money flow.  No durable good was created. No new technology was discovered. At least not by a lawyer.  We just wait for the problems to happen and swoop in to take our cut.

Granted, they will need us, and we may work hard on their behalf, and it’s better than grandpa pulling out the old Navy Colt and blowing some hedgefund manager away.  But we’re the janitors cleaning up the mess.

And if there is money to be made, there are desperate lawyers ready to make it. Websites will be changed to claim that some kid who graduated law school last week has vast experienced in such matters. And how deeply he cares, and reflected by the rave reviews on Avvo posted by his mother and two best friends.  But hey, he needs money and there’s money to be made out there, so why shouldn’t it flow to him?

It’s weird how many perceive themselves and their politics as a step below Mother Teresa, rather than just another vulture waiting for the next dead carcass in the road.  We can rationalize away doing the right thing for no better reason than it’s the right thing when it’s inconsistent with self-interest. Our team is brilliant and honest, and the other team is disingenuous and destructive.  And besides, if we don’t do it, someone else will and they will win the prize and leave us as roadkill. 

But as long as we frame our position in uplifting, positive rhetoric, it’s all good.  After all, the vulture will survive as others starve to death because there was nothing left to eat.

In a public reprimand, the  Virginia state bar smacks a lawyer for the internet advertising and marketing of his virtual law practice.  Bob Ambrogi, no enemy of marketing he, provides a shorthand list of the evils:

• Represented his firm as a practice of multiple lawyers in multiple cities throughout the United States, when in actuality his firm consisted of just him, “with his so-called associates being independent contractor attorneys paid on a commission basis.” His marketing described the practice as a “national law firm” with offices in Virginia, Maryland, Massachusetts and India.
  
• Represented each of the attorneys in his firm as focusing primarily in one area of law, when in fact each of the attorneys handled several areas of practice. “Each attorney in our law firm primarily focuses his or her practice in only one area of law,” the website said. “Our … lawyers … don’t attempt to dabble in unrelated areas of law.”
  
• Represented that his firm had at least six offices within Virginia, when in fact he had a single office, with the other five addresses being unstaffed spaces, some in executive office suites shared with other entities on as as-needed reservation basis.

But I hope the bar’s leniency doesn’t lead other lawyers to jump on the bandwagon of obfuscation. “Virtual” should not mean presenting yourself as something other than what you are. Above all else, lawyers have a duty of honesty. Their marketing should conform to that.

But “misleading” is one thing and “giving them more info than they need to know” is another. Where do we draw the line in notifying the public about our business decisions and the business structures of our law firms?  How do we measure the potential harm to a public that is empowered to search online for alternative sources for legal assistance? [For the record, I am not disagreeing with the Virginia decision referenced above. I am merely posing a general question about the nuances of the term “misleading” in MR 7.1.]

For the record, I do not have a single problem with anything about the way that the Virginia case was handled. I found that attorney’s practices in advertising to be objectionable and they should have been reprimanded. 

No, I don’t believe lawyers should mislead clients about what services they can and cannot provide. My questions in the post were just that – me thinking out loud about where the nuances might be. Some of these are issues that came from my work advising the ethics subcommittee here in NC where a lawyer asked if he could put Regus office addresses in his advertising.

During that process the question came up about whether the lawyer then needed to put on his website all of the details about that office location, such as the fact that several businesses at those offices shared the same receptionist or that his mail was forwarded to his permanent office address. If it’s important to the prospective client that the lawyer actually has a physical permanent office and reputation in a specific city, then do they have other ways of finding this out before retaining the lawyer or does the lawyer’s website need to go into the exact details of their presence in each location?

So, what I was wondering in my post was where the line is drawn in advertising and what the harm to a prospective client is if they don’t know all the details, such as if you use a virtual receptionist versus a person sitting a few feet away from you. I was just posing questions to think about – not trying to start anything controversial. I was going beyond the specific Virginia case and thinking about other examples where it might not be as clear how much information in the advertising the lawyer needs to include. 

It’s easy to be disgusted by the crime for which Todd Broxmeyer was convicted. A former high school field hockey coach, Broxmeyer was convicted of attempting to persuade a 17 year old female student to “sext” him pictures and possession of the image.  He had been convicted of a number of other counts, but they were dismissed in a prior appeal because the evidence was legally insufficient to support the conviction. 

Still, the two counts are enough, even if 17 is the age of consent in New York.  After all, he was her coach. 

But when he stood for sentence the second time, he was sentenced for everything, every wrong he did, every disgusting allegation, even those for which his convictions were reversed as insufficient. Everything. 

Welcome to relevant conduct, a trick under the United States Sentencing Guidelines that bootstraps one conviction, no matter what it’s for, into a funnel where every wrong claimed goes into the hole and comes out as a sentence of monumental proportions.  So what if it’s ridiculously disproportionate to the crime of conviction, as long as the relevant conduct, all the bad stuff he wasn’t convicted of, supports it.

By 2-1, the 2d Circuit was cool with a life sentence (reduced to the statutory max of 30 years) for one count of attempted sexting and one count of possession of the image.  Judge Reena Raggi, writing for the majority, then went on to provide the details of every alleged, disgusting, unproven, unconvicted wrong.  Just so the reader of the decision would be as repulsed by the defendant as she was, which was extremely persuasive but for one shortcoming: He hadn’t been convicted of any of it.

But as Judge Raggi notes,

The broad range of information that the district court was here entitled to consider in imposing sentence might usefully be thought to fall into three sets, each larger than the one before: (1) evidence establishing Broxmeyer’s guilt for the crimes of conviction, (2) evidence supporting particular Sentencing Guidelines enhancements, and (3) evidence properly informing the court’s exercise of its ultimate sentencing discretion under 18 U.S.C. § 3553(a). While the second set defeats Broxmeyer’s claim that procedural error in the application of the Guidelines renders his sentence unreasonable, it is the third, largest set that compels rejection of the claim that his sentence is substantively unreasonable.

As expressly noted, each “set” of “information” was larger than the one before it, the first one being the evidence of the crime for which he was convicted. It only gets worse from there.
 
In dissent, Chief Judge Dennis Hurley would remand for the defendant to be sentenced to the statutory minimum of 15 years.  This is important: the lowest sentence he could get is 15 years. Fifteen. That’s a long time. A very, very long time. It’s not like he could get a quick and easy ten, or even a slap of five, but fifteen years. 

Broxmeyer’s attempt consisted of inducing a 17-year old to take a lewd photo of herself. Under New York law, a 17-year old (such as the victim, K.T.) is of the age of consent. See N.Y. Penal Law § 130.05(3)(a); see also id. §§ 130.25, 130.40. She and Broxmeyer could do with each other whatever consenting adults may do behind closed doors in New York. True, the federal statute treats a 17-year old as a minor, 18 U.S.C. § 2256(1), so that a lewd photograph of her must be classified as child pornography. But surely it is an arresting irony that the only thing forbidden between Broxmeyer and K.T. was photography.

Yes, under federal law, sometimes photography is a crime, even when actually doing what the photography suggests would be perfectly lawful. Go figure.

And the sentence was stiffened by reason of “distribution” because after she took the picture of herself, she transmitted it to Broxmeyer. In short, the offense of conviction for which he was sentenced to thirty years imprisonment consisted in whole of sexting.

But then, Judge Hurley was only thinking about the crime of conviction, rather than all the unconvicted bad things that fall under the relevant conduct rubric. What about the children?

I start there because a reader of the majority opinion may find it hard to keep in mind what Broxmeyer was convicted of, and what he was sentenced for…

My objection is this: the offense of federal conviction has become just a peg on which to hang a comprehensive moral accounting. But in imposing a sentence that can be upheld as reasonable, a court should not lose sight of the offense of conviction.

And therein lies the problem with relevant conduct. When the crime of conviction becomes nothing more than a peg on which to hang every wrong, real or imagined, for which a defendant wasn’t convicted, and to then sentence him for his “comprehensive moral accounting,” we’ve utterly reduced the notion of conviction to a farce, and excuse to pay a defendant back for everything we hate about him, convicted or not.  And here, the crime of conviction itself is, frankly, puny compared to the relevant conduct. 

And after the relevant conduct enhancements that guys with a grid decided would make federal sentencing truly fair and standardized, Judge Hurley sums up the results:

That calculation–if not actually procedural error–is sound only as a matter of arithmetic and accounting. But it proves too much: something needs to be re-thought when in a case like this, the Guidelines calculation yields a life sentence. That is the sentence imposed on Jeffrey Dahmer, who killed people, and ate them. 

As disgusting as one might find a high school field hockey coach’s conduct here, and indeed it was disgusting, he’s no Jeffrey Dahmer.  Except under the federal Sentencing Guidelines by reliance on relevant conduct.  And as Judge Raggi correctly holds, this is exactly what the law allows, no matter how unreasonable it may be.

From St. Paul:

Someone on  Reddit who says he’s a cop explains:

The 10th Circuit’s decision in  United States v. Turrietta announces that another of the formalities upon which the solemnity of a jury trial is based is a meaningless joke.  Remember when swearing in the jury was a critical stage of the proceedings?  Yes, the good old days.

It seems that the district court judge forgot to swear in the jury.  That can happen, despite the fact that the judge has a courtroom deputy whose job it is to make sure all the “i”s are dotted and “t”s are crossed, in case the judge forgets.  But the defense lawyer, Chuck Knoblauch realized it.  And sat mute.

After the jury found the defendant guilty. Knoblauch stood up. From the WSJ Law Blog :

After the jury returned the verdict, Mr. Turrietta’s lawyer played his card. The judge had forgotten to swear in the jury, an oversight the lawyer, Charles E. Knoblauch, kept to himself for strategic reasons. Mr. Knoblauch asked the court to set aside the verdict, arguing that the absence of the oath deprived Mr. Turrietta of his Sixth Amendment right to trial by jury.

Not a chance, the court responded, and the 10th Circuit affirmed.  Knoblauch was forthright on appeal about his strategy, holding the ace in his pocket in case his client needed it later.  The circuit was, well, appreciative of his honesty here.

¹ To his everlasting credit, Knoblauch has admitted his knowledge and strategy.

Aside from this, the court never really warmed to the defense strategy.  Shockingly, courts tend not to like it when the defense plays games, particularly “gotcha” with the judge.

A verdict delivered by an unsworn jury may present an issue of constitutional dimension, as Turrietta contends. But a compelling threshold issue prevents us from resolving that issue. By lying behind the log, Knoblauch failed to preserve the issue he wants us to decide. Quietly harboring an objection until it cannot be addressed effectively is the functional equivalent of making no objection—at the very least, a forfeiture.

Preservation, the last refuge of scoundrels, would have been just the smack the court sought to deliver to Knoblauch for his gamesmanship.  But it didn’t stop there.

Even assuming the failure to administer the oath was constitutional error, the error was neither so clear that the district judge can be faulted for refusing to act when it was belatedly called to his attention, nor so grave that failure to correct it on appeal would threaten the integrity of judicial proceedings or result in a miscarriage of justice….

If anything would imperil the integrity of the judicial proceedings, it would be a decision rewarding Knoblauch for holding his objection in his back pocket hoping it might ultimately work in his client’s favor.

While it’s hardly surprising that the court reacted poorly to the defense tactic, the court goes on to suggest that the swearing of the jury doesn’t really “imperil the integrity” of the jury verdict.  Seriously?  In a system that relies on such legal fictions as the infallibility of the jury, and that the jury always adheres scrupulously to the legal instructions of the judge, relying on the solemnity of the proceedings and, yes indeed, the oath to which the jurors swear, we now learn that it was all just some archaic goofy show we put on for the sake of judicial theater?

But then Judge Terrence O’Brien does yeoman effort to dig the 10th Circuit out of the hole he’s just dug:

Surely there are cases where the benefit of the sworn jury will be heightened by the complexity of the law or the indeterminacy of the evidence. But if ever there were an occasion where our system could countenance conviction by an unsworn jury, where the ‘countervailing factors’ eclipse any potential unfairness flowing from the trial error, this is it.

So swearing in a jury might matter, but only in cases where the defendant wasn’t so darn obviously guilty that bothering with a trial was a waste of time to begin with?  You know, real cases. Serious cases. Cases where the judges actually think there is some chance the defendant isn’t guilty, guilty, guilty?

It’s completely understandable, from the judges’ perspective, that they’re both annoyed with Knoblauch for screwing with one of their own and making the trial judge look foolish.  It’s understandable that all the platitudes in all the law books in all the land aren’t sufficient to compel the judges to reward the defense for having out-gamed the court and the prosecution.  And it’s understandable that the judges really don’t believe that swearing the jury is anything more than a formality, to be used when it serves to explain why they can’t possibly let an innocent man walk free and undermine the finality of the verdict or question whether the jury decided the case in absolute adherence with the judge’s charge.

What is not understandable, however, is how, in the process of trying to explain the unexplainable, they have managed to reduce the swearing of the jury to a farce, unless of course they consider the trial unworthy of all those constitutional things they’re supposed to include.

In his WSJ Law Blog post, Joe Palazzolo closes with this:

LBers, if you caught the judge’s error, would you play it to your client’s advantage?

The  reaction of LBers (yes, he really calls his readers that) was, shall we say, unsurprising:

Tech Law wrote :

Lawyers are officers of the Court, and our obligation is to defend both the system of justice, as well as our clients. What the lawyer did was wrong.

Anonymous wrote :

Tech Law: Right on.

While it was surely ineffective, given the decision at the circuit, was it wrong?

Among the folks who have hitched their wagon to the cottage industry of persuading lawyers that anything new and shiny is good,  Jordan Furlong is considered one of the brightest.  While most aim low, appealing to the emotion and desperation of those for whom thinking is viewed as a symptom of a terminal disease (it makes their head hurt), Jordan presented well-reasoned, well-supported arguments for change.

It looks like the well has run dry.

In a post whose title is itself an ad hominem, The confidence of the Dinosaurs, the emptiness of the argument for mindless change is revealed.

You’ve seen the same signs I have. The volume of pro se litigation continues to set new records every year, most notably in family law. Do-it-yourself websites for contracts, wills and divorces keep flourishing, with non-lawyer providers like LegalZoom and Rocket Lawyer boasting millions of customers and millions of dollars in venture capital investment. Foreign professionals and sophisticated software are surging onto lawyers’ traditional business turf. These trends and others show every indication of continuing throughout this coming decade.

The overall legal market, despite what you might conclude from all that data, is actually strong and growing.

The set up of the first paragraph is no stretch, but a fair description of what any lawyer who pays attention to such things will invariably see.  But the first sentence of the next paragraph is the pay off, the salvation after the recitation of hopelessness.  What’s the basis for this assertion that flies in the face of every known fact?

Jordan says so. That’s it. Nothing more. Jordan sneaks in the line and prays that no one notices that there is absolutely no foundation for it.  Here’s the balance of the second paragraph:

But as Toby Brown has noted, it’s growing with only minimal involvement by or financial gain for lawyers. Market growth is passing us by. Law firms of every size and description, in every jurisdiction, are experiencing flat or declining revenue or profit. This is mainly because lawyers and law firms have proven to be less accessible, more expensive, and less responsive than clients are increasingly willing or able to tolerate, and because those clients are now test-driving alternative options for legal services.

The assumption is that no one will bother to read what “Toby Brown has noted,” which is that the cottage industry leeching off the law is growing.  So a $100 billion industry has shrunken in half, and start-up ancillary services have gone from zero to paying their bills in 90 days.  Strong and growing?  It makes my head hurt.

Jordan asks why lawyers are stuck doing what we’ve always done (which I guess would be practicing law) while the people who set up vendor booths at conferences, usually unemployed young lawyers, have seen their salaries climb from nonexistent to poverty level.  Why aren’t lawyer jumping on board, he asks?

The only reason I can think of to explain this is the serene confidence of incumbency. Lawyers still own this market, and we’ve owned it for longer than anyone can remember, a happy fact that we ascribe to our natural superiority. We feel a deep and untroubled assurance of our continued dominance over legal services.

Well, this is a bad time to be an incumbent in the legal marketplace.

I can think of a different reason.  Because we’re lawyers, who have sworn an oath to zealously represent our clients within our ethical constraints and the bounds of the law.  Because we don’t have the option of playing the game like laundry detergent, offering “new and improved” services while delivering deception.  Because the moment we stop conducting ourselves as lawyers, we become laundry detergent sellers.

Jordan’s point, aside from making it abundantly clear that lawyers who persist in such old-school beliefs as competence and ethics is a dinosaur, is that the environment is changing.

What will you do when that environment changes?

• If your entire business model is premised on pricing your services and paying your lawyers according to time spent on tasks, what do you do when clients stop dealing in that currency and demand a new one?


• If your sole stock in trade is students who spend three years receiving basic law primers, what do you when both your inventory and its purchasers require a radically different product?


• If your core purpose is to resolve private disputes, what do you do when new providers deliver the same outcomes much faster and much more cheaply than you could hope to manage?

Questions are easy.  The problem is finding solutions that not only address problems, but do so within the context of what lawyers do.  The adage is that people want cheap, fast and good, but they can only have two.  Jordan presents the strawman view that the legal profession must meet the desires of our clientele or…what? They will go pro se?  That will save them money, but the outcome is usually disaster. Potential law students will become dental hygienists instead?  This might be a good thing for all involved, though there will still be a few who take to the law, as long as Harvard Law School has seats available.

Clients want good legal services for a lower price?  This isn’t an environmental change. This has always been the case.  Does any lawyer know a client who begged him to charge more?

Jordan devolves to the straight dinosaur analogy, even mentioning the Mesozoic Era (I told you he was the smartest of his ilk), so we get the image of pending death in our heads, and then asks:

What do you suppose is going to happen next in the law?

Since he asked, here’s what I suppose: there will be a core group of new lawyers who are dedicated to the zealous representation of their clients; who put competence, honesty and integrity above deceptive marketing and “low, low prices.”  There will be new lawyers who don’t hand out flyers in front of the courthouse offering $20 wills and $100 DUI defense (Special today, will and defense, $110!!!), 

The economy sucks, and the people in need of legal services either can’t afford them at all, or want as much value as they can get.  They won’t be helped by lawyers walking the boulevard in hotpants. They won’t be helped by lawyers who forsake what makes us lawyers. 

So Jordan calls lawyers who believe in being honest and competent, and zealously representing their clients dinosaurs. At least dinosaurs don’t wear hotpants, and have the capacity to use logic to realize that just because something is new and shiny doesn’t make it better or mean it works.

The contest may not be all that great, but the book is.  I was sent a copy of Steven Stark’s “Writing to Win,” and from  everything I hear, it’s a terrific book on legal writing, and one that every new lawyer should read.

So rather than stick it on a shelf, why not have a contest and share with a reader?  And, just to sweeten the pot, I’ll include a check in the amount of $3.45, rounding out the total value of the prize to a huge $15!!!

How can you win this incredible prize?  In a comment below, complete this phrase:

The law doesn’t suck; it’s just . . .

Have fun.  And if nobody responds or if the responses are just awful, I’m sending the book to Brian Tannebaum, even though there are no pages to color.  Could you live with yourself if that happened?  I don’t think so.

*Chances of winning this prize are 1 in 24,394,874.238.12.

** The contest will end whenever I decide it will end.

*** There is absolutely nothing fair about this contest.

**** Employees of Simple Justice New York LLC and any and all parent, subsidiary, related and affiliated companies, and their respective officers, directors, employees and agents and their dependents and immediate families to the third degree of consanquinity, as well as employees of contest Sponsors and vendors, are not eligible to win. Winner must be a United States citizen or know someone who is a United States citizen, over the age of 12 years by December 31, 2026 and sentient.

Originally posted 8/26/2012 9:16 AM


UPDATE:  And the winner is…Brian Tamanaha, with the utterly brilliant response:

The law doesn’t suck; it’s just misunderstood.

It’s a trick question, but one that really isn’t terribly hard to answer:

Mount Airy, NC prides itself on being the hometown of Andy Griffith and the model used for the small town of Mayberry in the Andy Griffith Show. This morning the local paper posted this report of a traffic accident that totaled a brand new police cruiser. The driver that collided with the cruiser was doing the posted speed limit and won’t be charged with any violations.

The report leaves out one important detail. See if you can figure out what it is before looking at the answer. Hint: Take a look at Google Street view of the intersection.

Mouse over for answer

The greatest danger to police officers on the job isn’t being shot by a criminal but dying in a car accident, so I was interested to see a  report from KXAN-TV declaring that “nine Austin police officers have been suspended for causing traffic accidents in 2012.” Most recently, “An Austin police officer has been suspended for running a red light and causing a crash with another vehicle. It is the fourth time in the last year that an Austin police officer has run a red light and caused a crash.”

KHOU-Houston recently reminded us that “Two years ago, an officer in Austin rammed into a motorcyclist in broad daylight. Later he admitted to being distracted,” and supplied video of the incident. The officer was typing notes into his on-board laptop when slamming into the cyclist. After that episode, The city changed its policy to require officers using in-car computers to “pull over, complete what they need to do and then proceed,” Assistant Chief Sean Mannix has told the press. The Tarrant County Sheriff has enacted a blanket policy against the practice, while the Plano Police Department requires officers to pull over if “extended use” of the in-car computer is expected. But most Texas agencies have left the practice utterly unregulated.

At Volokh Conspiracy, Orin Kerr discusses why he, apparently alone, submitted an amicus curiae brief in a Fifth Circuit appeal of a magistrate judge’s denial of an order permitted the government to obtain historical cell site data.  He describes the underlying issue:

In this case, the United States applied for a court order under the Stored Communications Act to compel cell phone providers to disclose location information about particular phones suspected in criminal investigations. The magistrate judge denied the applications on the ground that he expected that the orders would be executed in ways that will violate the Fourth Amendment.

Some readers might wonder why I filed an amicus brief in this case. After all, relatively few people care about ripeness. The doctrine comes off as a technicality. And filing a brief on one’s own is pretty unusual. But I filed the brief because the stakes of the question strike me as enormous. In my view, the ripeness of the constitutional question is far more important than whether the Fourth Amendment is held to apply to cell-site records under some assumed set of facts. The reason is that Congress has created a statutory system of electronic surveillance law in the last 25 years that requires many statutory court orders at nearly every stage of every case. As I explained in a recent post :

One of the major differences between traditional criminal investigations and network surveillance investigations is that network investigations generally require lots of lawyers and lots of court orders. In traditional criminal investigations, lawyers and judges play a relatively minor role. The cops run the show, and lawyers and judges mostly get involved only if a warrant is obtained. The police might watch a suspect, stop and detain him, frisk him for weapons, and make an arrest all without lawyers or judges. Review of the legality of the investigation is ex post: The defendant moves to suppress the evidence and argues that the past conduct was unconstitutional.

In other words, the argument is that the only question for the magistrate to consider is whether the showing in support of the order (which is not a search warrant, but merely a statutorily required order) is sufficient, and if so, then it should be ordered. What the magistrate has no business doing is predicting facts that will render the government’s actions violative of the Fourth Amendment.

In other words, if the showing is made, the order issues and any potential Fourth Amendment violation is only ripe for review after the fact. 

Orin makes a  persuasive argument that the powers of an Article III judge, limited to determining a case or controversy, do not permit him to anticipate a Fourth Amendment violation and refuse to act to prevent it.

Article III’s limitations on federal court jurisdiction are just as much a part of the Constitution as the Fourth Amendment.  Your argument seems to be that following the spirit of one part of the Constitution requires violating another part of the Constitution — that is, ensuring the enforcement of the Fourth Amendment requires ignoring ripeness and the case or controversy requirements.  There’s a lot of precedent that disagrees with that view, such as City of Los Angeles v. Lyons (1985), Warshak v. United States (6th Cir. 2008) (en banc), which impose ripeness and case-or-controversy limitations on the resolution of Fourth Amendment claims.

Not being particularly slavish to precedent, there is a point to be made that this conflict between different parts of the Constitution amounts to a political choice of which you prefer, which matters more.  That some court cared less about preventing unconstitutional search and seizure than limiting its jurisdiction only means that courts are forever constrained by some old judicial choice if one is slavish about adhering to precedent, right or wrong. Others will argue that bad precedent begs to be reversed. 

While I find Orin’s argument well founded, I (not surprisingly) disagree with his premise.  Once the jurisdiction of the court is invoked for the purpose of obtaining an order (or a warrant, recognizing that the two are different and require differing levels of support), the neutral magistrate becomes the gatekeeper of his order.  The judge didn’t ask that the government bring the case before him, but once there, it demands attention.

The rejection of the government’s application in In Re Applications of the United States for Historical Cell-Site Data, the matter before the magistrate judge in this case, was based on the judge’s view that the order could not be executed in a manner consistent with the Fourth Amendment.  The government, naturally, argues that the order will be executed in a manner consistent with the Fourth Amendment. The judge believes otherwise.

As Orin argues, the judge can’t be 100% certain that a violation of the Fourth Amendment will occur, since it hasn’t happened yet.  Who is he, then, to predict the future and anticipate a violation?  More importantly, even if the judge is correct, so what? By this analysis, the courts aren’t in the business of stopping the government from violating the Constitution, but rather deciding whether they did after the fact and then smacking the government for doing so.

To use an imperfect analogy, picture an agent, executing an arrest warrant, pointing his gun at the head of an unarmed, docile, suspect 50 feet away.  There is maybe a 20% chance the agent’s bullet will find its target, but if it does, it will embed itself right behind the suspects left eyeball.  Does the judge close his eyes tight and mutter to himself this is none of his business until after the body lay still and cold?

Having brought the case before the court, asking the judge to invoke his discretion to determine whether the showing meets the threshold for approval, the government presents all issues implied in the execution of the order.  The same discretion exercised in deciding that the showing is adequate remains in force in deciding that the execution of the order for which it’s seeking approval will impinge on any other aspect of law.

There is no mandate that the judge turn off his discretion when it comes to aspects the government prefers he not consider.  The case or controversy was brought before him, not just the tiniest piece the government would have him decide, precluding him from its consideration in the fuller context.

In other words, you can’t ask the magistrate to exercise discretion and approve an order, but to otherwise ignore the same sound discretion when reasonably believing that the execution of the order will violate the Constitution.  When the government invokes the court’s discretion, it invokes all of it, not just the pieces it wants.  And to expect a judge to approve an order which he reasonably believes to violate the Constitution is to ask the judiciary to become complicit in the reasonably anticipated wrong. 

The courts should not knowingly do wrong. The courts should not become complicit in a reasonably foreseeable wrong. They are the gatekeepers, and have the inherent power to be confident that what they are approving isn’t a violation of the Constitution.