Because the Internet Can’t Be Happy

One of the aspects of writing this blawg that I most appreciate is being challenged, taken to task, by people I respect when I’ve written something they think is wrong. It may feel nice to be surrounded by supportive readers who agree with me, but it’s like peeing on yourself in a blue serge suit. It feels warm for a bit and nobody notices what you’ve done.

Others see it differently. No fewer than three posts came to my attention yesterday that drove the point home.  At a blog called Call Me Bookish, twitted by Antonin Pribetic, a review by Kelly (who I’ve deliberately sought not to know any better than her name) tells of a friend from her tribe who took issue with her review of something involving Abraham Lincoln and vampires (which I’ve deliberately chosen not to read, both because it sounds awful and I don’t want to be prejudiced by content).  Kelly writes about her “first internet attack”:


My WIP [I believe this means “work in progress] is a work of fiction, but it’s what I imagine a young drunk driver’s life to be like in the years following a similar accident. Due to the emotional toll this takes on me, this work is far from finished. I haven’t released excerpts of it yet because I’m not ready for any sort of backlash. I’m not ready for writing that recounts such a sad time in my life to be ripped apart.

Tonight I realized that I have made the right decision, because I was hurt when a “Blogger Friend” (we’re in the same tribe on Triberr, friends on Twitter, etc.) attacked my most recent review in a blog post. This person clearly misunderstood what I was trying to communicate in this review and if he gave me 24 hours, I would have responded to his initial comment in order to explain where I was coming from. Nope. He decided to write a post that bashed both me and my words.

Final word: There’s a difference between respectfully disagreeing with what someone says and tearing their work (and them) apart. What should I do now?
We don’t get to dictate to others what they should think about us or how they should express it.  Ironically, Kelly has put herself on the pedestal of critic, but when the tables are turned, collapses in a fit of angst.  It seems that kelly was most disturbed because the “attack” came from a friend.  The aspect of friendship I most respect is honesty.  Other prefer blind support, so no one ever tells them their fly is down or their butt looks fat in that dress. 

When you put your thoughts or feelings, as the case may be, on the internet, you may be read by people who don’t love you or agree with you. You have no right to demand they do. You have no right to demand that they react in a way that pleases you. If your feelings are easily hurt, or if criticism makes you cry, then you should not take the risk. But once you’ve done so, your whining is disingenuous. You don’t have to endure criticism, but then you can’t post on the internet.

A delivery company calling itself Yodel, after having been raked over the coals under the names of Home Delivery Network and HDNL, has hired the Biglaw firm of  Weil, Gotshal & Manges to threaten to sue twitter for voluminous twits by customers about how awful its service is.




The list of tweets that Yodel provided to Twitter typically include those hitting out its failure to deliver on time, lost parcels and advice to others not to use the deliver service. Many are disparaging while others are humorous but don’t strike me as particular libellous.


Yodel appears to be using heavy handed legal tactics in an attempt to silence dozens of online critics – hardly a step that is likely to endear it to customers or a step in the right direction when it comes to customers service.



Weil, Gotshal & Manges claimed that it has been proven that the existence of these Twitter accounts “”over a substantial period of time, that the existence of these pages serves as a platform for such defamatory statements to be made against our client”.


The cottage industry of internet marketers informs businesses everywhere that they must have an internet presence to survive.  Left out of the sales pitch is how customer dissatisfaction can now be louder than business self-promotion.  “What? They never told us about that!”  This is but one example of what Ken at  Popehat calls “censorious asshats” trying to shut down unpleasant noise on the internet. There are many others, and many others pending at this very moment. 

It’s got be embarrassing for a law firm with a solid reputation like Weil, Gotshal, to make such silly and vapid claims as defamation by customer who tell the story of their nightmares with a company. It adds the additional layer of a law firm that apparently doesn’t know the definition of defamation, or one that will write anything for a buck, no matter how laughable. Either way, it diminishes the firm.  It might diminish the business as well, but it appears that the business is doing that all on its own.

Before the internet, one dissatisfied customer could yell and curse the customer service representative in a boiler room in Manilla.  Today, the dissatisfied customer locks arms with a thousand others, no longer lone voices in the woods but a choir of angels on the internet.  And neither a horribly managed company nor a law firm willing to be stupid in public can stop it.  As Babs could explain, there are few things that motivate people more than pissing them off.

And finally Donna Barstow debases the high art of political cartoons, whose beef combines the worst attributes of Kelly and Yodel.


Aside: I am well aware that there are no shortage of examples that could have been included in this post, but have chosen these three. You may think that others would have been better, but these are my choices. This is not your opportunity to denounce whoever you think should have been included, or even raised your personal target for most evil internet whiner. I’ve left out my own pet peeve, KitchenAid. If I can resist using this post for personal vendettas, so can you.

From Popehat’s survey of Barstow’s complaints:



Barstow is a blogger (sort of), an author (technically), and, to my taste, an appallingly awful political cartoonist, gripped by some terrible compulsion to explain her cartoons in a caption when she posts them. Given her level of nuance, this is roughly akin to providing a listening guide to musak.

This time, Barstow has turned her attention on a less compliant target — the denizens of the website Something Awful. To be fair to her, it’s not like she lashed out at 4chan or something, but that seems to be her pure dumb luck. Barstow’s complaint is that Something Awful forum goons posted and criticized her cartoons in a forum thread about bad cartoons. She began to lash out at Something Awful writers on Twitter.


Barstow went on to accuse Something Awful of copyright violations and “defamation,” scorning the idea that posting her comics in a thread criticizing bad comics constituted fair use.


Barstow soon found herself the target of insults, abuse, and — she claims — tweeted or emailed obscene images. That’s obnoxious, juvenile, contemptible, and utterly predictable if you launch a broadside against a site like Something Awful.


Wrapping oneself in defensive legalese, using words that sound threatening even if inapplicable, is the weapon of choice of the internet whiner.  There is such a thing as copyright violation and defamation, and it matters. It’s just not left to every unhappy camper to redefine them to serve thwart their critics.  As with Kelly, I’ve chosen not to look at Barstow’s political cartoons or the infantile reactions of her enemies. It’s best not to let the content blind one to the issue at hand, that the internet provides no one, absolutely no one, with an assurance of support and kindness. 

By making the decision to put your thoughts, feelings and beliefs on the internet, you invite criticism.  You invite uncontrolled criticism. You invite every friend to disagree. You invite people you don’t know to call you horrible names. You invite people smarter than you and dumber than you to levy fair and unfair attacks on your character, lineage and attire.

And in contrast to the myriad voices who tell us that this is a horrible state, that it should be a crime to hurt other people’s feelings by saying mean things about them, the internet will not be stopped.  It does not forgive. It does not forget. Before you think your words need to be read by the world, consider whether you are tough enough to weather the storm. 

Every time I hit the little button that makes something appear on the internet, I authorize everyone in the world to cast stones. You do the same. Get over it.













Zombie Law Review Apocalypse (Update)

At the Atlantic, Walter Olson of  Overlawyered fame calls for the death of the law review.


 The circulation of law reviews has been plummeting for a generation; the most famous and widely circulated of them, the Harvard Law Review (HLR), has seen its subscriber base dwindle from 10,895 in 1963-64 to a mere 1,896 in 2010-11.

No law school wants to give up and go web-only because it seems unprestigious…

The wider question is whether the law review model of content–with its long lead time to publication, editing by students, and format that’s resistant to after-publication editing–yields enough scholarly gems to deserve surviving in its present form even online.


We have some inkling what John Roberts thinks of the matter. The chief justice told judges last year: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.”


Just a couple days ago, a lawprof sent me a link to her law review article, as it was on an issue about which I’ve written much and have great interest.  I read it.  Well, truthfully, I read part of it, skimmed other parts and, upon reaching the point of boredom beyond which I feared permanent brain damage, I put it down.  I don’t blame anyone, least of all the lawprof author.  It’s the nature of a law review article, to take a subject of interest and make it as tedious, drawn out and thick as possible.  Did I mention footnotes?




The decision was handed down on the 27th day of May1 rather than the anticipated date of the 29th.

1 Using the Gregorian calendar, in contrast to the pre-Julian or Roman calendar. Due Process and the Rejection of Pre-Julian Dating, Richard Head, 28 Yale L.J. 1198 (1947). Others dispute the merit of the Gregorian calendar and contend that Pre-Julian dating should be used, whether in parallel or by itself. See, e.g, United States v. Sparticus, 138 F.2d 490 (3d Cir. 1984).

For a practicing lawyer, I probably read more law review articles than most. At least parts of them. Not all of them are ridiculously irrelevant, grasping for something remotely resembling purpose in a journal of a million murdered words.  It’s awful.  It’s painful.  Not because these articles don’t occasional raise ideas or argument of merit, though it’s rare, but because even the best and most thoughtful bog down in the brutally heavy compulsion to mask worthwhile thoughts in thousand of worthless words.

And so, I disagree with Walter. The law review should not die. It’s already dead. It’s been dead for a while, and merely wanders about like zombies eating the brains of those who are caught in its clumsy clutches.




What we do know is that the page volume of law reviews has proliferated beyond reason with no corresponding rise in compelling content. Even low-ranked law schools often publish six or eight of them. There’s no secret as to why: students crave the credential of having worked on law review, while faculty crave a high likelihood of being published. Legal educator Harold Havighurst nailed it half a century ago: “Whereas most periodicals are published primarily in order that they may be read, the law reviews are published primarily in order that they may be written.”


One way or another, some scholarly apparatus will be found to publish meritorious longer articles that advance the mission of serious research into the law. But when it comes to discussion of timely controversies, slash-and-thrust debates, and other forms of writing that people actually go out of their way to read, there’s no doubt where talented legal academics are headed: to blogs and other shorter-form online publications.


There are alternatives, as Wally correctly notes.  Blawgs, such as Volokh Conspiracy, played a significant role in shaping the arguments against the individual mandate. While they may not have carried the day, their relevance can’t be denied.  And there were two significant advantages: the posts were readable and read.

It’s not that law reviews, run by students who fancy themselves so brilliant as to entitle them to pass judgment on the work of law professors, have no place in legal society. 



  1. They provide resume fodder for students who want to guarantee that they will never be expected to try a case in their careers.
  2. They provide space for people who aspire to being deemed sufficiently scholarly to commit murder of the language with impunity. 
  3. They can level a table leg.

Defenders of the faith clap their hands in glee whenever a law review article is cited in an opinion. Sadly, it doesn’t mean what they think it means.  Judges don’t cite to law reviews because they found them persuasive, or even mildly interesting.  In fact, it’s doubtful that judges cite to them at all, since it’s part of the grunt work fed to their law clerks, who just happen to be the former law review editors, on whose shoulders it falls to keep the zombies walking.

Rather, whenever judges come up with cockamamie ideas that cry out for support from any source possible, they send the grunts off to the library in the usually safe belief that somewhere, amidst the millions and millions of murdered words, will be a law review article that is so outlandish and ridiculous that it backs them up.

Will the physical books persist as long as there are trees to be cut and mother’s to buy proof of their darling’s genius?  Of course, but that doesn’t mean they’re alive.  Blawgs have already proven that ideas, if worthwhile, have an outlet for their existence, and can fulfill a function by bearing the basic virtues of brevity, readability and substantive merit.  As for law reviews, they’re just dead weight.

And if law reviews are zombies, the blue book is a vampire, existing only to suck the life out of you.

Update: I am deeply ashamed to admit this, but as Temple Lawprof  Dave Hoffman gleefully informed me, I a disgrace to trench lawyers everywhere.  There is a new law review article available on SSRN by Arizona State lawprof Adam Chodorow entitled Death and Taxes and Zombies.

The U.S. stands on the precipice of a financial disaster, and Congress has done nothing but bicker. Of course, I refer to the coming day when the undead walk the earth, feasting on the living. A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead. The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively, putting us all at risk.

Now this is scholarship.  And Hoffman is just laughing his butt off at me. I’m so ashamed.



Cato Amicus: Search Means Search

The Supreme Court will soon consider whether bringing a drug dog to the front door of a residence to create a basis to claim probable cause in order to obtain a search warrant.  The case, Florida v. Jardines, challenges the decision of a divided Florida Supreme Court’s  rejection of the authority to bring a dog to the door of a residence without cause to begin with, the act itself constituting a search.  The question is whether the Supreme will apply Illinois v. Caballes, holding that a dog sniff of a car is not a search, to a home.

While the case is chock full of interesting and important 4th Amendment issues, one of the more interesting and provocative positions taken comes from Jim Harper and Ilya Shapiro, who filed an  Amicus brief on behalf of the Cato Institute.  Their argument is summed up:


This case offers the Court an opportunity to place the Fourth Amendment on solid jurisprudential footings. Current Fourth Amendment doctrine has failed to produce rules that are administrable and that protect privacy over time. In particular, this Court’s use of proxies such as having a “reasonable expectation of privacy” to locate Fourth Amendment interests has failed to produce a workable rule, and it has eroded privacy. The Caballes Court used a corollary from reasonable expectations” analysis that threatens to erode privacy protections even further. 

Reasoning backward from “expectations” requires courts to engage in impossible surmise about privacy,neglecting the Fourth Amendment’s protection of a constitutional right. This Court should return to plain meanings of Fourth Amendment terms such as “search,” and to precedents that spring from the Fourth Amendment’s terms.




A “search” occurs when government agents seek out that which is otherwise concealed from view, the opposite condition from what pertains when something is in “plain view.” People maintain “privacy” by keeping things out of others’ view, exercising control over personal information using physics and law.This Court’s cases give Fourth Amendment backing to physical and legal arrangements that control information appurtenant to persons, houses, papers, and effects. The Court in this case should make that explicit while finding that government agents’ use of a drug dog to sniff at Joelis Jardines’s front door was a Fourth Amendment search that required probable cause and a warrant.

To put it another way, the argument is to put an end to the Katz reasonable expectation of privacy that has either served well or disastrously, as the case may be.  In its place, it calls for a return to a textualist view of the Fourth Amendment, where words like “search” are given their “plain meaning.”

The immediate problem, as was earlier pointed out by  Orin Kerr in his discussion of Jardines, is that the law has long taken no issue with police using such sophisticated sense-enhancing devices as a flashlight to see what otherwise couldn’t be seen.  If something is concealed under the veil of darkness, is it a search to shine a light on it?  Using the plain meaning approach, it appears that it would be, and therefore a warrant would be required for police to use a flashlight to see what they otherwise could not see.

On the other hand, the reasonable expectation of privacy test has not only failed to maintain much privacy, but has proven particularly unworkable as applied to privacy in the digital age, where the third party doctrine renders pretty much everything outside the scope of the Fourth Amendment.  It didn’t necessarily have to go that way, but for the court’s adoption of the reasonable expectation of computer geeks who understand and appreciate that everything sent over the internet ends up on somebody’s server somewhere.  Apparently, Mom and Pop Kettle’s expectation that their emails aren’t being read in Bangalore isn’t the bar for reasonableness in Washington.

This isn’t the first call to do away with the Katz test, Lawprof  Dan Solove argued that Katz was dead, and instead favored  Fourth Amendment Pragmatism in its place.  Whether this advances the cause is hard to say, since I’ve never understood what Dan was talking about.

Putting aside the issues surrounding the incredibly flawed doggie myth per se, the question of whether walking the dog to your front door is a search presents enormously vexing problems.  There doesn’t seem to be a doctrine that applies well to the wide variety of ploys used to circumvent the warrant requirement, both in the physical world or the digital world. 

Even if we were to develop a completely separate rule for virtual application (despite those who believe that we ought to apply developed law, meaning the million exceptions that swallow the rule, to the virtual world by analogy so that the party who comes up with the cutest analogy wins the search issue), the reasonable expectation of privacy test has led us to the plethora of exceptions that have swallowed up the warrant clause. In other words, as long as the physical world exists, it has to be dealt with, and the Cato amicus argues that the time has come to give up trying to craft an extra-constitutional test and simply return to the text of the Fourth Amendment.

In a way, the Cato argument seems unbearably simplistic.  Could it really be that simple that the Constitution protects that which is “otherwise concealed from view”?  It would certainly put a crimp in law enforcement’s authority to search for evidence.  Would that be so bad?

Technology is the New Black

At the Legal Whiteboard, Indiana Lawprof Bill Henderson has apparently just discovered the Ignite concept, where a person gets six minutes and 20 slides that move forward every 20 second whether he wants them to or not. Bill thinks it’s a great idea, as do I. The worst that can happen is you lose six minutes of your life.

But the exemplar offered comes from a London’s Law Tech Boot Camp, described as


a BarCamp-style community UnConference for new media and technology enthusiasts and legal professionals including bloggers, twitters, legal-technology lawyers, social networkers, and those curious about new media and the law.

If this was nothing more than another singalong amongst the iPhones will change the world crowd, it wouldn’t be worth even six minutes. But this “UnConference” included a group of law students from MIchigan State Law, captured the interest of Henderson from Indiana Law, and included Michael Bossone. 

Who?



Michael Bossone


Special Advisor to the Dean, University of Miami School of Law


Michael Bossone is the co-creator and a founding member of LawWithoutWalls. His career has been dedicated to building and sustaining human connection and institutional culture.  It is what first drew him to LawWithoutWalls and what motivates the time, energy, and commitment he joyfully gives to this innovative project.  He is currently Special Advisor to Dean Patricia White at the University of Miami School of Law, and previously served as Assistant Dean during his nine years at the Sandra Day O’Connor College of Law at Arizona State University.


Bossone gave an Ignite presentation that Henderson (who was there) calls “awesome.”



For those of you in need of an incentive, here’s a drinking game: count the number of logical fallacies this former lawprof/current special advisor can get into six minutes.  On the other hand, for those young lawyers inclined toward confirmation bias and in need of validation, this is a wet dream. 

That the typical suspects blindly tout technology is old news, What makes this significantly more disturbing is that, coming from someone imbued with attributed credibility from the Academy, not to mention endorsed as “awesome” some another within the Academy, has the power to confirm the most ignorant, dangerous and deeply held bias of every unemployed wanker who desperately cries,


“but mommy, I know I have no job and no prospects, and can’t afford to spit no less pay for a data plan, but I neeeeeed shiny gadgets if I want to be a lawyer.  My lawprofs said so.”

It’s certainly true that lawyers are slow to adopt new technologies.  “What are we do damn afraid of?”  A facile question from someone whose strawman argument will not suffer from a response.  We’re afraid of destroying lives. We’re afraid of finding out we chose Beta instead of VHS, We’re afraid of the third party doctrine that allows the government to access confidences through its required backdoors or the simple good of some kid who forget to lock up at night.  We’re afraid of violating the trust of our clients that we won’t lose focus whenever something shiny captures our attention.

We are indeed slow to jump onto whatever the latest and greatest new thing may be. “Afraid to try. Afraid to take a chance. Afraid to fail?”

We are free to fail, and fail miserably, when it’s only our own butt on the line. Lawyers have the same right as anyone else to makes lousy choices, provided we alone suffer the consequences.  But when our choices mean someone else suffers, then we do not have the right to take a chance.


“We’re satisfied being dinosaurs in the digital age, technological neanderthals, Fred Flinstones in a world of Elroy Jetsons.” 


If we “push the button, click on the link,” and get a virus, or delete the brief, or miss the critical decision, the court may not find our allusions to cartoon characters as captivating as Bossone does. Indeed, most judges will hold us to a somewhat higher standard than either Fred Flintstone or Elroy Jetson (oddly the young son, rather than George Jetson, Elroy’s father).

The dichotomy, of course, is nonsense. It’s not technology or quills. Even old guys like me (as is readily apparent as you’re reading this on a computer screen) have embraced much of technology, after determining that it’s beneficial, that it doesn’t put clients at risk, that it’s cost-effective and that we won’t have to explain to a human being a year from now that we’re terribly sorry that they will be spending the next decade in prison because we thought our emails were secure and our cellphone conversations couldn’t be readily intercepted by anyone with a national security letter (or maybe just a scared employee of a cell service).

But us dinosaurs don’t particularly care what special advisors to the dean think.  We view empty rhetoric and laugh. We know that correlation doesn’t prove causation.  We aren’t inclined to stand on line to be the first with the newest, coolest shiny gadget, and so we aren’t seeking validation of our bias.  Crap like this doesn’t play well to lawyers who have been around long enough to see new ideas come and go, to see the latest and greatest today become the massive failures of yesterday.

Law students and young lawyers, on the other hand, are susceptible to such ploys.  They don’t believe things can fail because they’ve never experienced failures. They don’t believe things can fail because they don’t want to believe.  Isn’t that right, Siri?

To some lawprofs, this is the nexus of law and fashion design, where they pronounce that hemlines will be above the knees this year, and that technology is the new black.  And the young lawyers believe them, running out to the glass caves with their heads in the clouds. 

“A more profound impact.”  Maybe, but the adoration of change bears no inherent connection to improvement.  What distinguishes lawyers is the ability to resist fashion trends and focus instead on those things that we know will benefit our clients without risking their lives.

“It was bullshit in ’96 and it’s bullshit now.”  If this is the argument in favor teaching law students and young lawyers to ignore reason, throw caution to the wind and just push any button in front of them, then we have a looming disaster on our hands.  “With lawyers, why is it always too slowly.”  Because we have the capacity to think and the responsibility to put our clients first.  This, apparently, is where lawyers differ from lawprofs.


 

Independence Day 2012, A Stroll

Though curation isn’t my thing, as I prefer the “value added” path of commentary and view it as a bit of a facile way to generate readers without much effort, my own stroll around the blawgosphere this morning leaves me with little to add to some of the more interesting things others have to offer.  So rather than waste the space (and your time) with my thoughts, I bring those of others.

At Radley Balko’s Agitator, where Radley has turned over the keys to some very interesting folks while he recovers from the hair transplants,  In a story by  Ken White (who has been quite prolific and compelling lately) of his youth, remembers the day he was taken by a judge to the Veterans of Foreign Wars to fulfill part of a promise made decades earlier, upon which our Congress reneged after America enjoyed the benefit of a group of men who risked, and some lost, their lives in World War II.



There, in a dark and baroque room, we found eight elderly men. They were too infirm to stand. Three were on stretchers, several were in wheelchairs, two had oxygen tanks. One had an empty sleeve where his right arm had been. A few relatives, beaming, stood near each man. One by one, Judge Lew administered the naturalization oath to them — closely, sometimes touching their hands, speaking loudly so they could hear him, like a priest administering extreme unction. They smiled, grasped his hand, spoke the oath as loudly as they could with evident pride. Some wept. I may have as well. One said, not with anger but with the tone of a dream finally realized, “We’ve waited so long for this.”


And oh, how they had waited. These men, born Filipinos, answered America’s call in World War II and fought for us. President Franklin D. Roosevelt asked the men of the Philippines to fight, promising them United States citizenship and veterans benefits in return. 200,000 fought. Tens of thousands died. They weathered the brutal conditions under Japanese occupation, fought a valiant guerrilla war, and in some cases survived the Bataan death march.

They could have been angry, filled with frustration and hatred toward a nation that was happy to take their lives but refused to honor their promises. Instead, they thrilled at the fulfillment of a dream to become an American, even if only for their few remaining years.

The sentimentality of the story strikes home, that these men, that their families, finally received what they had been promised so many years before.  But the deeper meaning of the story, how they were not filled with hatred toward a country that failed them, and instead, in the final years of their lives, appreciated becoming Americans.  While some spew hatred toward America and pray for the day the revolution begins, these men, burned far more than most of us, wanted only to be able to die as Americans. 

Another guest at Case de Balko is Maggie McNeill, who brings the rather curious perspective of a retired call girl and madam to the mix.  Maggie offers her  homage to our Founding Fathers via the journey of Gene Roddenberry’s U.S.S. Enterprise.


In the deeply-flawed episode “The Omega Glory”, descendants of early Earth colonists (or else the inhabitants of an impossibly-parallel world) fought a bacteriological war between Americans and Chinese which ended in both nations being hurled back into barbarism; the Yangs (Yankees) still have an American flag and a copy of the Constitution, but have forgotten the real meaning of the artifacts.  They revere the flag as a totem and recite the “holy words” by rote; today’s epigram is the Yang leader’s rendition of the beginning of the Preamble to the Constitution (“We the People, in order to form a more perfect union…”) altered by centuries of repetition without meaning.

Naturally, Capt. Kirk sets them straight, because who doesn’t want the future of our beloved Constitution in lesser hands.  Maggie then contrasts Star Trek’s Yangs with our own.


The situation presents a useful (if exaggerated) metaphor of modern America; though we have not descended to the barbarism of the Yangs, our law and traditions have drifted ever further from their philosophical and constitutional moorings.  The Founding Fathers would not recognize the current legal code of this country, grounded as it is in religion and other dangerous superstitions and “-isms” inimical to the Enlightenment philosophy and thousand-year-old English common law tradition in which it was originally based.

This idealized vision of what “has become” of America is sadly common and pervasive. Our nation wasn’t quite the utopia many believe from their reading of the Constitution and the platitudes engraved on federal building lintels.  Slavery was embraced, and blacks were only three fifths of a person for the convenience of those seeking power.  Neither women nor the poor were considered more than chattel.  Freedom of religion was sanctified, provided it stayed within Christian norms, and laws reflected a deeply embedded Puritan ethic.  Many crimes were punished by death, and due process was decidedly haphazard as “justice” was meted out swiftly and, most of the time, carelessly.

Our Founding Fathers ran the gamut from dry good merchants to vast land owners, whose economic interests compelled them to pay poor street toughs like Crispus Attucks to do their dirty work.  They were smart enough to couch their rhetoric in liberty and freedom, because they foresaw that “a decent return on equity” wouldn’t fit on license plates. And yet they created a document that remains the most remarkable in the history of the world.

The pendulum has swung between law and order many times since then. The message has soured, such as Lincoln’s suspension of habeas corpus during the Civil War, or the internment of Japanese-Americans during World War II. We’ve suffered Dred Scott, Plessy v. Ferguson and Korematsu.  The USA Patriot Act, secret FISA warrants and rendition.  And yet we’ve enjoyed Miranda and Gideon, even Brady if you have a good sense of humor.

No, it wasn’t always wonderful.  We do not live in a paradise lost, but in a work in progress. The message isn’t that our Forefathers created Nirvana, but gave us the chance to turn a vast nation into one. The struggle to fulfill our promise never ends, and there will never be a time when our vigilance is no longer needed. But as Ken’s finally-minted Americans understood, it is worth fighting for America to fulfill its promise.

And finally, my good buddy  Dan Hull offers a thousand words with one picture.



Happy Fourth of July. 




An Honorable Title

You don’t have to go to school for it. There are no tests I’m aware of. In fact, you don’t have to be paid,as if there was anyone to pay you if you did.  The title is Professional Agitator.  As my young friends like to say, that’s badass.  And the title has been bestowed by no less consequential an entity than the 30th Precinct of the New York City Police Department on Matthew Swaye and Christina Gonzalez.

How does one achieve such high honor?  From DNAInfo :



HARLEM — The NYPD has created a “wanted” poster for a Harlem couple who film cops conducting stop-and-frisks and post the videos on YouTube — branding them “professional agitators” who portray cops in a bad light and listing their home address, DNAinfo.com New York has learned.


The flyer featured side-by-side mugshots of Matthew Swaye, 35, and his partner Christina Gonzalez, 25, and warned officers to be on guard against them. 

“Be aware that above subjects are known professional agitators,” read the flyer, which bears the NYPD shield and a seal of the NYPD‘s Intelligence Division. It also gave the home address of the couple.


“Above subjects MO is that they video tape officers performing routine stops and post on YouTube,” the sign said. “Subjects purpose is to portray officers in a negative way and too [sic] deter officers from conducting there [sic] responsibilities.”


The flyer also listed the name and cellphone number of a Sgt. Nicholson in the 30th Precinct, and implored cops to “not feed into above subjects propaganda.” 

This Harlem couple, angered and disgusted by New York police department’s stop and frisk policy as are so many others (Mayor Bloomberg, excepted), have been taping the cops tossing their targets and putting it on Youtube for all to see.  One might suppose a cop would relish the opportunity to have his fine police work captured on video and displayed for all to see. Don’t they love the TV show COPS!?  They’re always happy to pose for the camera when they get a new medal pinned to their chest. 

Yet the “wanted poster” for Swaye and Gonzalez didn’t mention that the police wanted to throw them a party and thank them for their kind attention.  Instead, it suggested they might be bank robbers or rapists; or worse still, “professional agitators.”

Ironically, the police claim is that these “subjects’ purpose” (don’t you love police jargon) “is to portray officers in a negative way.”  No connection is made to the fact that they can only videotape officers doing what they do.  If that turns out to portray the cops in a negative light, don’t blame the camera. Don’t blame the people holding the camera.  Or does a cop do no wrong if there’s no pictures?

That the wanted poster was openly displayed at the Dirty 30 for all who came to a public hearing was curious. Was its purpose to intimidate Swaye and Gonzalez?  Was if to shame them by making them appear to be criminals?  Or was it to warn cops not to engage in unlawful and abusive conduct if the duo was around?

Ken from  Popehat and the  Agitator, and possibly more by the time you read this post, ponders its meaning:



I think Jacob Sullum is right in his post about this incident when he writes that the poster can be taken in two ways: the style and publication of the couples’ home address suggests intimidation, while some of the language suggests a warning to police to leave them alone rather than approach them in a manner that will look bad on video. But whatever the intended message, the unintended message about law enforcement’s entitled attitudes is clear. First, in the face of steadily advancing legal norms protecting citizens’ rights to record cops in the course of their duties, cops continue to do everything they can to portray such recording as dangerous, intrusive, inappropriate, and a signifier of bad citizenship. Second, cops view concern about constitutional rights as a signifier of bad intent and suspect behavior. Only an agitator would want to document, and challenge, the widespread temporary detention of young men of color in New York City.

No doubt his critique is accurate, addressing as it does the motivations of our public servants, New York’s Finest, to do their job without the burden of public scrutiny or accountability.  But then, if it serves to make cops think twice about their actions, about whether somebody out there with a ubiquitous video camera is capturing (something they only wish they could do) their sausage-making for the rest of us to see, then the purpose is served.

Whether the police moderate their conduct, adhere to the law and respect the rights of citizens, because they chose to or because they fear public exposure, anything that raised fear of embarrassment and, in the rarest of circumstances, possible discipline is a great thing.  Those inclined toward misconduct and abuse aren’t likely to change their view because they’ve watched too many reruns of the Andy Griffith show*, but for their own self-interest.  Anything that makes their perspective more enlightened makes people safer and their rights more secure.

It may not be sufficient to end police abuse and misconduct, but every human being who survives a stroll down St. Nicholas Avenue unharmed is a victory.  And so, awarding the title of professional agitators to Matthew Swaye and Christina Gonzalez is quite an honor.  They deserve it.

* As both an homage to Andy Griffith on his passing, and a reminder of a better times, enjoy this video.



And don’t blame Opie. He was just reading his lines.


The Carreon Gambit

If you’re not a fan of FunnyJunk, the Oatmeal or the First Amendment, you may not have noticed the soap opera developing around the indefatigable ego of Charles Carreon, whose journey began with a threatening letter on behalf of FunnyJunk who was miffed that content from Oatmeal was funnier than anything it could produce.  From there, it got stupider.  Popehat, Lowering the Bar, even Masnick, the Constitution’s fair-weather friend at Techdirt, have been chronicling Carreon’s every burp.

While the original beef between the humor websites catering to precocious twelve-year-olds has fallen by the wayside, Carreon has focused on his own dignity, determined to prove that he can take on the sniggling masses who mistakenly think they can cow him with their ridicule.  He will not be cowed.  It’s not that Carreon is a slacker or a scammer. Indeed, he has history on the side of good. From Paul Alan Levy at Public Citizen :


Recently, Public Citizen was aligned with a lawyer named Charles Carreon, filing an amicus brief in support of his argument against allowing a publisher to pursue a a copyright-infringement lawsuit against his wife’s Oregon company in federal court in New York.  The former colleague who wrote this amicus brief argued the personal jurisdiction issue orally, so well that Carreon did not feel the need to come argue himself (a good thing too – his appellate brief was terrible).   And it has seemed to me that some of the online criticism directed his way for having sent a demand letter for a client, complaining that a blogger had defamed the client, had become a bit excessive.  I had turned down requests that I represent some of the defendants in Carreon’s earlier litigation, because, although it was apparent that he was litigating strange claims to punish his critics, the theories in the case either were not interesting enough to make a good vehicle for impact litigation, or would have had to be advanced on behalf of entities that could easily afford to hire their own lawyers. 

If there was any doubt before, it’s now gone with his latest foray into unearthing the nefarious joker who started a parody website using his copyrighted name.  This compelled Levy to jump into the fray against his former ally.


Most immediately, we have agreed to represent the anonymous author of a blog at www.charles-carreon.com that satirizes Carreon mercilessly by speaking in his voice and imitating the rather pompous and over-the-top language that Carreon himself uses.  Carreon claimed that the domain name infringes the registered copyright in his name, and constitutes cybersquatting, and threatened to add  our client as an additional defendant in the peculiar lawsuit that he has filed against Matt Inman and others over Inman’s satirical charity-fundraising campaign.  
And so the jousting begins.  After Carreon threatened Register.com to compel them to identify the owner of the parody domain, Paul took charge on behalf of the parodist, explaining why Carreon was wrong.  Carreon responded:



As far as when and where I will sue your client, be certain that it will occur if your client does not cede the domain, and advise her of ten things:

1. That there is essentially no statute of limitations on this claim, and the prima facie laches defense [ed. note: that’s an equitable defense that asserts “you waited too long to file this.”] would not kick in for at least three years.

2. That venue in this action can be validly laid in at least three places, maybe four, if she doesn’t live in Arizona, Florida, or California.

3. That I am capable of employing counsel to handle my claim against her, who will incur attorneys fees and seek recovery of the same. I filed pro se against Inman simply for the sake of convenience and the need for speed, and not from a lack of resources.

4. That the law in this area cannot be predicted with certainty, will evolve substantially over the next three years, during which I will be using digital forensics to establish actual trademark damages in addition to seeking the maximum cybersquatting penalty of $100,000.

5. That a judgment that recites that the domain was obtained by fraud upon the registrar, in the form of a misrepresentation that she did not know of my trademark on the name, might well be non-dischargeable in bankruptcy.

6. That a judgment can be renewed indefinitely until collected, and that California judgments accrue 10% interest, which can compounded once ever ten years by capitalizing the accumulated interest.

7. That you cannot guarantee that Public Citizen will provide her with free legal services on June 1, 2015, when I may very well send the process server ’round to her door.

8. That I have the known capacity to litigate appeals for years (check my Westlaw profile, and of course, the drawn out history of Penguin v. American Buddha, now in its third year, having passed through the Second Circuit and the NYCA, and still hung up in personal jurisdiction in the SDNY).

9. That the litigation, being of first impression in virtually every Circuit, grounded in a federal question, involving a registered trademark, and dispositive of many open issues in the field of Internet commerce and speech, might very well continue for a decade.

10. That Public Citizen might well be unable and/or unwilling to provide her with representation until the resolution of such an extended course of litigation.

While Carreon may be nuts, he’s not insane.  Within the demands is a certain truth, that an obsessed person, willing to commit the entirety of their existence to a cause that will invariably exceed the interest of normal and otherwise engage people, has a very good chance of succeeding.  Not because they’re right, but by attrition.

And so rather than wait for Carreon to act, after Public Citizen has moved on to more pressing causes, and thereby ceding control, Paul took the initiative to file a  declaratory judgment action in California federal court on behalf of the anonymous parodist against Carreon.  While this most assuredly won’t be the end of the soap opera, as Charles Carreon’s history of doubling down has become the thing of memes, at least his own strategy of use of legal process to vindicate himself has now turned on him.

But what’s notable, though largely unmentioned, in this melodrama is that all of the various targets of Charles Carreon have relied upon, and received, the largesse of others. From pro bono counsel, the Electronic Frontier Foundation, the Popehat signal and now Public Citizen, the objects of Carreon’s obsession have been defended. 

At the same time, the peanut gallery watching the soap opera unfold is busy doing its hooting and hollering about what a jerk Carreon is and how he’s going to get beaten to a pulp.  If only it was that easy. Whether he’s right or wrong, the system doesn’t quite follow the snark of the internet when determining an outcome.  Judges don’t count how many times commenters call someone an asshat when deciding who will prevail. You would think people would realize this by now.

While good people have stood up against Carreon up to now, the flaw is readily apparent. What of the next target of Charles Carreon?  What of the next Charles Carreon? Can we rely on their always being someone willing to fight the dragon free of charge?  While the lawyers on board for this fight are getting tons of love from the gallery, the watchers will soon move on to the next internet meme while the lawyers will be left to fight for years without compensation.  Not nearly as much fun as it seems.  And when they love and interest dissipates, and the fighting grows tedious and sucks up time from more remunerative ventures, will Charles Carreon be the only one left standing?

This is why we need a national anti-SLAPP law, because you can trust people to be there if there is something to be gained at the end of the rainbow.  Charles Carreon knows it doesn’t exist now, and that he only has to win one of his many battles to be vindicated, and that a win by attrition is still a win.  It’s a gambit, but it has a decent chance of succeeding.  And it shouldn’t.





Wifely Duties

While the prosecutor’s duty to disclose Brady material is affirmative, there’s a backdoor in the case of failure where a defendant knew or should have known the existence of impeachment evidence.  It’s a foolish rule, relieving the prosecutor of the consequence of failure by subsequent speculation about what the defendant might have known.  But then, Brady has always been one of the cruelest jokes.

It had to be weird for Jeffrey Dean Ford to sit in the defendant’s chair and listen to the testimony of Constance Goins about his robbing banks.  After all, Goins was the sister of Ford’s wife, and his wife was living with her mother and Goins while Ford dined on the state’s dime.  He knew Goins was no angel, having a multitude of criminal problems of her own, yet somehow free to sleep in her own bed.  But there his lawyer was given no evidence to use at trial to show that Goins’ testimony was a quid pro quo.

Sure, there was speculation. There’s always speculation about a snitch getting a deal, testifying in exchange for lenient treatment. It’s the nature of the snitch.  But proving it, confronting the witness on the stand with the fact that a promise was made, a deal cut, is another matter. The hope of leniency for “truthful testimony” always emits an unpleasant odor.  Finding the rot that gives off the scent to show the jury is the key. 

Ford’s lawyer eventually obtained Goins’ files, well after Ford’s conviction, and went about the task of exhausting remedies before he made his way to federal court. After all, the smoking gun of Goins’ deal was not only true, but denied the defense at trial. Another Brady failure. Ho hum.  But as he approached the federal courthouse, the door slammed shut.  From the 9th Circuit’s opinion in Ford v. Gonzalez :


Petitioner-Appellant Jeffrey Dean Ford (Ford), a California state prisoner, appeals from the district court’s dismissal as untimely of three claims in his petition for a writ of habeas corpus, under 28 U.S.C. § 2254. Ford argues that his claims are timely because the prosecutor withheld evidence that Constance Goins (Goins), a witness for the prosecution at his trial, received lenient treatment in her own criminal cases in return for testifying against him. We hold that Ford is not entitled to delayed commencement of the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §§ 2241 et seq., because the factual predicate of his claims could have been discovered had he exercised due diligence at his trial.

Of course, in our nation’s zeal to stop terrorism, it was crucial to limit habeas relief to a year so the terrorists don’t win. 

The majority opinion by Judge Milan Smith doesn’t question whether the prosecution completely and totally failed in its affirmative obligation to turn over Brady as to Goins.  Rather, they ignore the prosecution’s burden and focus instead on Ford.


Based on the testimony offered at Ford’s trial, Ford had reason to suspect that Goins may have sought and received some benefits for assisting law enforcement. At the very least, Ford and his trial counsel were aware that, despite being found in possession of drugs by a police detective, Goins was not arrested. In fact, his trial counsel remarked at trial that he wanted to argue to the jury that Goins “did what she did because she was expecting a deal from the DA’s office,” but declined to press this argument. Thus, Ford’s trial counsel was clearly aware of the possibility of a deal. Regardless of whether this knowledge is attributed to Ford, it illustrates that the testimony at trial gave ample reason for a reasonable person in Ford’s position to investigate further whether Goins sought and received benefits in return for assisting law enforcement.

This is a really cool trick, since every time a witness with some sort of criminal issues testifies for the prosecution, everyone who isn’t on a jury knows they’ve got some personal benefit in mind. The problem is overcoming the pat arguments used to convince the jury that they’re telling the truth, and without actual proof of the deal, the defense is usually precluded from anything more than noting the unpleasant smell in the courtroom. It’s just business as usual.

But then Judge Smith throws a knife into Ford’s heart.

Beyond the testimony at trial, the unique living arrangements and active assistance of Beverly Ford, his wife, also gave Ford access to information about whether Goins had received a deal. Beverly Ford, Goins’s sister, lived in the same house as Goins and their mother. As the magistrate judge found, “it is more than arguable that Beverly Ford was present and aware of Goins’ various criminal cases and their dispositions” after Ford’s arrest. During and after the trial, Beverly Ford pressured Goins to help Ford, and took an active interest in Ford’s case. The magistrate judge did not speculate as to what specific information Beverly Ford was privy to or what information she relayed to Ford. Beverly Ford’s assistance was an additional resource a reasonable person in Ford’s circumstances could have used to discover the factual predicate of his claims at the time of his trial.

Prosecutor’s duty to turn over impeachment evidence? Pshaw. It’s all Beverly’s fault.  After all, she was living in the same house as Goins, and she should have certainly figured it out.  No doubt the trial judge would have found defense counsel’s argument overwhelming if he said, “but your Honor, the defendant’s wife says so, and what more proof would you need?”

Or as Judge John Noonan dissent notes in his opening paragraph:



The majority forbids a federal court from hearing Ford’s habeas petition on the merits, not because the government in Ford’s case did not violate Brady, but because Ford, a prisoner at the time, should have, with due diligence and the help of his wife Beverly, been able to discover the government’s breach of Brady. The majority excuses the government’s lapse while it imposes a new requirement on the spouse of a defendant.

Add that to the list of vows to be taken at the wedding, and pray it’s taken to heart more than the obligation of a prosecutor to turn over Brady evidence.  Better still, is the failure grounds for divorce, because the failure of a prosecutor to turn over Brady isn’t grounds for much of anything.












 


Part of the Problem

While there isn’t a criminal defense lawyer who doesn’t bemoan the fact that defendants, by and large, ignore what we consider monumentally sound advice, every once in a while the other side accuses us of something that warms the cockles of our hearts.  This is such a time :


The state Attorney’s Office said that DUI defense attorneys are part of the problem. Many advise against taking breath tests so someone can avoid giving up evidence used against them. Eyewitness News checked online and found several websites that spell out what to do and not do if you’re stopped.

It’s not that lawyers promote criminal or dangerous conduct.  I don’t. No one I know does. And yet, we’re part of the problem.  It looks like we’re doing something right.

The problem is that motorists stopped for drunk driving are refusing breathalyzer tests.  Everybody knows those tests, where you blow into a little black box which magically tells you how drunk you are using an algorithm that’s never been revealed so that it can be independently tested and verified, and with more false positive flaws than you count with your pants on.


It is also very frustrating for law enforcement. The word is out in Florida that if you’re suspected of driving drunk you should not submit to a breath test.

“I think in county court, DUI is probably 40 percent of the docket,” said Perlman.

However, at least four out of 10 in Florida refuse a breath test, making prosecution more difficult.

For those of you inclined toward a motto to display on your business card, this might give you  pause for thought: Making prosecution more difficult since 1982. 

On the other hand, it’s curious that the story is reported from the perspective of the police and prosecution, as if there is some obligation on the part of folks to cooperate, if not facilitate, in their own conviction.  Is that the perspective of Florida’s WFTV 9 in its fair reporting?


Drawing blood when someone refuses a breath test has been done in Florida by Brevard and Hillsborough counties. However, after gaining a conviction, Brevard County saw it overturned.

“I would love to see the law changed because I’m frustrated as a prosecutor with the limitations of proving a drug or chemical substance case,” said Perlman.

Unless the state Supreme Court rules differently, blood draws will only be allowed when someone’s hurt, or a suspect is stopped for at least a third time.

“I definitely would support it, yes I would,” said beachgoer Jessie Gainey.

“I think it would be fine,” said Victoria Mauro. “It’s the law to not drink and drive so I don’t see why not, why it would be wrong.”

“I think it’s against your rights, more than a breathalyzer,” said Ted Kryla.

See?  There’s the other side!  You can’t get much fairer than that.  And so, as Americans look forward to celebrating the upcoming 4th of July week by chugging down a six pack or two, there are three things to think about. 

First, don’t drive drunk. It stupid and dangerous to you and everybody else. No, your having a good time isn’t worth my child being killed. Just don’t do it.

Second, if you’re stopped by police, do not consent to a breathalyzer test. Do not confess when asked whether you’ve been drinking. And try not to drool.

Third, be thankful in those states where police don’t have the authority to lay you across the hood of their cruiser on the side of the road and stick needles into your veins.  For anyone who thinks this is a fine idea, pray no cop thinks you’re driving drunk.

This message is brought to you by a proud part of the problem.

Submission to the Shield: Digustingly Real

There is a host of things ordinary people do for no better reason than someone requests it. Do you give your social security number to the physician because his medical history form has a space for it?  Why? Will that help her diagnose your illness?  The reason it’s on there is for the benefit of the collection agency in case you don’t pay your medical bills, and yet nearly everyone provides it without blinking. 

When a police officer tells you to jump, most people ask how high. They may not like it, but they will do what they’re told lest the interaction is raised to the next level.  It’s the motivation that gives rise to false confessions. It’s how they get you to consent to a search, even when you know you’ve got two bricks of cocaine in the trunk. It’s amazingly powerful stuff.

And the cops know how powerful submission to the shield can be, which is how a disgusting pig can do something like this. Via the Miami Herald :

[T]he girl was sitting in the back of a car with a 19-year-old friend parked in the back lot of a business plaza in Miramar after school on Jan. 18, when a man approached the car and looked at them through the window.

He asked them to roll down the window.

Because he was in a dark-blue uniform and wearing a gold badge, the teens thought he was a police officer and complied.

The girl was 15 years old.



But the man told the girl he “needed to check.”

The girl asked “Check what?”

“I need to see inside,” he responded.

That’s when he ordered her to take off her pants and underwear so he could look for bruising or other evidence of sexual activity.

In fear, the affidavit said, she complied.

It’s almost impossible to imagine what thoughts raced through a young woman’s mind as a cop ordered her to remove her clothing.  But as mind-boggling as that was, it got worse.




The girl told police she thought it “was the right thing to do” because he was an officer.


He told police he heard the man tell the girl “I need you to spread your legs wider so I can see.”

The officer then used a flashlight to “inspect” her and told her to pull down her blouse so he could check for bruising, according to the police report.

Then he returned the driver’s license to the boy and told them “Go home.”


While this could have been done by a vicious pedophile masquerading as a police officer, it wasn’t.  After sifting through pictures of police officers, she identified the man who ordered her to spread her legs wider.



The man she identified: Miramar police Capt. Juan De Los Rios, 46.

On Friday, De Los Rios was charged with two counts of lewd or lascivious conduct on an underage girl, according to the arrest affidavit. He was booked into Broward County Jail and held on $30,000 bail.

If convicted, De Los Rios could face up to 15 years in prison and up to a $10,000 fine.


Miramar police Capt. Juan De Los Rios was on the job for 18 years.  It appears that he has transgressed even the thin blue line this time, and he was suspended without pay.  The case seems to be taken seriously, though I wouldn’t anticipate $30,000 bail had it not been a cop who gave the order to a 15-year-old to spread her legs wider.

Yet why, why would a young woman disrobe and allow an unknown man to view her vagina with a flashlight upon command?  


The girl told police she thought it “was the right thing to do” because he was an officer.

Much as readers here, as lawyers, will find that statement utterly naive and shocking, it reflects the breadth of faith in police.  No matter how many videos appear showing the police beating someone to death for being non-compliant, we still teach our children that they can trust the police, that the police are their friends. 

And even the videos push people to do as they’re told, fearing that failure to do what the office says might leave one dead on the street, whether a statistic or the target of some vague yet vicious justification.  “She took an aggressive stance and made furtive gestures as I ordered her to spread her legs apart.”

People find it unfathomable that others do as a police officer commands, thinking they would never do something as “wrong” as consent to a search without basis, confess to a crime they didn’t commit, or strip naked and spread one’s legs so the officer can “inspect” her vagina.  The power of the shield is amazing, and compulsion to submit to that power is undeniable.  And still people don’t believe it, just as they can’t bring themselves to believe that any cop could engage in conduct this demented and disgusting.