Following GW Lawprof  Jonathan Turley’s posting of his Washington Post op-ed on changing the number of Supreme Court Justices, an idea that was further discussed here, a peculiar thing happened.  Wisconsin Lawprof Ann Althouse picked up on the story and, rather than discuss its merits, bizarrely ridiculed Turley.
 

It was good enough for FDR, and it’s what the Washington Post is pushing in anticipation of the Obamacare decision. Jonathan Turley writes:

The health-care decision comes 75 years after the famous “court packing” effort of President Franklin D. Roosevelt…. Roosevelt may have had the right idea for the wrong reason.

Oh, spare me the bullshit. It’s the same reason. You don’t like the opinions. It was a bad idea then, and it’s a bad idea now.

I don’t know what put the idea of 19 into Jonathan Turley’s head. It could be something mystical and nutty. Maybe he loves Adele’s first album.

But I assume there’s nothing mystical or artistic about Turley. I think he likes the number 19 because it’s the smallest odd number that’s big enough to make individual Justices inconsequential — to dilute their power to the point where they don’t loom large as personalities and seem like mere humans.

When another law professor and blogger (Ann Althouse) joined this ill-informed and uncivil chorus, I thought I would respond. This blog has always strived to maintain a strict civility rule — distinguishing it from many other blogs by discouraging and sometimes eliminating ad hominem and personal attacks. Yet, I am still surprised by the lack of civility and responsibility by many — particularly fellow lawyers and academics — in responding to such proposals.

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I must confess that, when one of our regulars sent me this link, I was taken aback. I do not expect such ill-informed and uncivil attacks from a fellow academic. While Althouse writes a conservative blog and has been something of a lightning rod in the past, I would have thought that she would do a little research before going after another professor.

My only point is that the overall commentary following the column shows once again how we have lost the tradition of civil discourse in this country. The tendency today is to personally attack people with whom you disagree and suggest hidden agendas or conspiracies. I am always delighted to see spirited debate following a column, including those with whom I disagree. As in a classroom, I value the debate for its own sake — forcing people to consider alternative views and possibilities. The current tendency to shout down other voices with shrill or sophomoric attacks is degrading our politics and our society.

As bizarre as it was for Althouse to attack as she did, what followed at her blog was 141 comments that crystalizes a far more damning problem than vapid, tin foil hat commentary from someone who is allowed to teach students.

With a few exceptions, calling Althouse out for her wholesale attribution of baseless motive and challenging her credibility, the vast majority reflected a cult-like acceptance of her accusations, and spewed anger and hatred toward Turley and his “ilk.”  This reflects a growing danger, and one of the worst problems, facing both the blogosphere and virtual society, and happens not just at blogs like Althouse’s, but is becoming increasingly pervasive.

At Above the Law, Elie Mystal poked fun at the situation by noting:

but here on the internet we don’t have a tradition of civil discourse. We do have a tradition of ad hominem attacks, hyperbole, and pictures of cats.

And apparently Althouse is as much a cat lady as any aficionado of FunnyJunk. 

Whether they’re called tribes, fans, cheerleaders or a cult, the development of a coterie of believers who bolster the bloggers self-esteem by blind acceptance of their words, taking it from uncivil challenge to outright hatred, and often attacks in the real world, scares the daylights out of me.  This is not merely how we have the potential to make people stupider, but to cause actual harm to others by the fostering of a community of political sycophants whose disaffected online personas can create a mindless frenzy that manifests in real harm.

It seems to me that those bloggers who are receiving the adoration of their community are loving it a bit too much.  They pander to them. They feed the frenzy. At the very least, they do nothing to limit the growing fury they foster.  They love being loved too much. 

Even with Charles Carreon, whose attack on the Oatmeal merits universal condemnation, there have been allegations of people engaging in real world attacks. If true, these are where things have gotten out of hand, where appropriate challenge crosses the line of a feeding frenzy on the part of weak-minded and dangerous people who, unsatisfied with merely expressing their disapproval, feel some sick need to cause actual damage. 

Are these the tribes we’re trying to create in the blogosphere?  Is this some internet version of Lord of the Flies?  Why, when we see commenters and followers going too far, getting too crazy, expressing seething anger that goes beyond reason and seems likely to burst into real life, do we not calm things down, explain that they’ve taken an idea and gone off the deep end.

Where is Althouse’s responsibility to tell her tin foil hat crowd to take a deep breath and cool off?  Where is that responsibility for all bloggers who gain any following? I’ve often suggested that we have a responsibility not to abuse our trust, not to make readers stupider for having been here.  But it’s gone way beyond merely making people stupider, and is reaching the point where bloggers are fostering such bizarre anger and hatred that the likelihood of some weak=minded fool doing harm becomes almost inescapable.

My suspicion is that some bloggers love being loved.  They thrill at the adoration given their words, and refuse to do anything to quell the fervor, no matter how ridiculous or out of control it gets.  It’s not about suffering legal liability for the actions some nutjob on the internet causes, but that their basking in the limelight of fame and glory is a sick reflection of their need for validation and approval. 

As Elie says, the internet has no tradition of civil discourse. On the other hand, pandering to the ignorant and crazy to maintain their adoration and make you feel validated is pretty warped.  It was bad enough that Ann Althouse wrote two posts that cost her credibility among anyone capable of thought, but that she lit up her sycophants with hatred toward Jonathan Turley, and allowed it to fester, is sick.

In a  Washington Post op-ed, George Washington Lawprof Jonathan Turley posits a solution to the two-prong problem of the lack of public approval (and therefore trust) in the institution of the Supreme Court of the United States, and the net result of the law of the land turning on the vote of one individual, as reflected in the steady stream of 5-4 decisions. Expand the court to 19 justices.

The power of the Supreme Court will always be controversial because of the fact that the justices are the final word in legal disputes. Justice Robert Jackson wrote in 1953, “We are not final because we are infallible, but we are infallible only because we are final.” An individual’s view of the court can depend on whose ox is being gored by its decisions; a “judicial activist” is often just a jurist who doesn’t do what you want. Any Supreme Court of any size will always render unpopular decisions. It is supposed to. Federal judges are given life tenure to insulate them from public opinion, so they can protect minority interests and basic liberties.

The nine-member court is a product not of some profound debate or study, but pure happenstance. The first Supreme Court had an even more ill-conceived number of justices: six. In fact, when the court first convened in 1790 at the Royal Exchange Building in New York, only two justices were present (fortunately, it had no cases on its docket). After that time, the size of the court expanded and shrank, largely with the number of federal circuits. Since justices once “rode circuit” and sat as judges in lower courts, Congress would add a justice when it added a circuit or reduce the number with the elimination of a circuit.

Justices detested riding circuit and persuaded Congress to end the practice in 1869. The court remained at nine members despite the fact that some federal courts of appeal now have as many as 29 judges. Ever since, we have repeatedly had 5-4 split decisions, with one or two swing justices dictating the outcome of cases. With the increasing longevity of justices, such divisions have become stagnant and bitter.

While the best number is debatable, I believe that a 19-member court — roughly the average size of a circuit court — would be ideal. Just because we settled on the number 9 arbitrarily does not mean that any number is as good as any other. A court with 19 or so members have been shown to work efficiently where a larger court would likely be unwieldy. Appellate circuits are often divided between liberal and conservative judges. Yet, it is rare that one or two of those judges consistently provide the swing votes on all issues when they sit “en banc,” or as a whole. Appellate courts of this size have proved to be manageable while allowing for more diversity in their members. More important, the power of individual judges is diluted.

We treat institutions such as the Supreme Court as inviolate. However, the framers not only gave us a brilliant system of government but the ability to improve it to better meet contemporary demands.

When it’s you pressing the shutter, it’s all happy and completely innocent.  But what about when you don’t know who that guy is taking photos of your kid?  From the Guardian UK,

Requests to take pictures had to be made in writing to the headteacher, but in almost all cases were refused “due to the safeguarding of all children”. In spite of repeatedly taking the issue up with the school and governing body, these parents have been denied photographs of their children at sports days and Christmas plays – even at the PTA craft fair.

Such a blanket ban is relatively rare, but the issue of photographing children has become fraught in schools all over Britain. Ten years ago, nobody thought twice about photographing children on the football field. Now every click of the camera is overhung with a cloud of possible ill intent. Who is photographing that child and why? What will they do with the photo? The epitome of innocence – parents recording their child’s nativity play – has become subject to the strictest regulation.

The problem becomes more acute when children are involved in sports, as the people doing the photographing of children are not necessarily from your school, but the other as well. This not only means you don’t know who is taking pictures, but to the extent you know and trust the parents of children are “your side,” you have no particular reason to trust those you don’t know.

A secondary school teacher from Hertfordshire, who wishes to remain anonymous, says that he was only allowed to photograph his own school’s pupils at sports events, so “if there are three kids on a medal platform, you have to take your child away from the platform and photograph them separately”.

The Child Protection in Sport Unit recommends that you “avoid full-face and body shots” and that children in swimming costumes should only be shown “from waist or shoulder up”. These rules create a stilted genre of child photography, where children are pictured on their own or at designated “photo moments” at the end of the play or match, rather than in the thick of events.

As schools will often sell photos or videos to parents while denying them the opportunity to take their own, the assumption is that these new rules are intended to provide a revenue stream for schools.  After all, $15 DVDs of the class play or the 7th grade soccer match certainly seem a bit greedy.  And it’s hardly outside the realm of possibility that schools have seized upon the issue to provide a secondary benefit of making a few quid.  But it’s not just that. 

The spread of photo bans is not really a response to child abusers stalking school sports days. Instead, it reflects the contamination of everyday adult-child relations – and the new assumption, as the children’s author Philip Pullman put it, that “the default position of one human being to another is predatory rather than kindness”. Any adult looking through the viewfinder at a child is viewed as potentially sinister and in need of regulation.

The rationalization for such pervasive regulation of ordinary parental activities is do it for the children. Yet, this isn’t quite as crazy as it seems.  While this sort of regulation is absurd when it comes to “us,” it’s not nearly as absurd when it comes to “them,” the adults whose purposes are unclear.  Indeed, we may have no reason to suspect that they’re pedophiles (or anything remotely evil), but wonder whether they will inadvertently post images to the internet of our children which we would prefer not be posted.  After all, they’re our children and who knows how careful (or careless) they will be with the images.

Yet the idea of being unable to take photos of your child in her class play, or at a little league game, seems absurd.  Imagine having to bring your lawyer along to interpret the regulatory forms in triplicate needed so you can sign off before receiving your photographing permit?  Have we seriously come to this?  While the story is out of United Kingdom, there is nothing about it that doesn’t suggest it couldn’t happen here. In fact, it surprised me that it hasn’t already, and I fully expect someone to tell me that it has indeed.

In a few hours, my plan is to take a few well-conceived pictures of my son walking to receive his high school diploma. There’s a decent chance a few other kids will find their way into my pictures.  There a decent change that my son will end up in some other parent’s pictures as well.  We’ll just have to take our chances, and pray they won’t end up on some high school graduate porn website.  That’s my default, not because I trust other people implicitly but because I can’t imagine going through life any other way.

H/T Ed at Blawg Review

The saga of Brooklyn District Attorney, Charles “Joe” Hynes, and sex abuse in the “ultra orthodox” Jewish community has raised an interesting problem.  It seems no matter what his office does, it can’t win, and yet at the same time, the demand remains (as well it should) that he prosecute those who molest children.  And Hynes is taking a beating for his efforts.

Part of the problem is demonstrated by Jonathan Turley’s post, castigating Hynes for giving “preferential treatment” to Hasidic defendants by not revealing their names publicly, which follows up on an earlier post  with the same complaint.  This reflects a common mistake, where we try to understand problems derived from exceptionally peculiar cultural norms though our own experiences. Unless you were raised in Williamsburg, you’re not likely to get it.

The issue largely stems from a series of New York Times reports that were so badly off-based as to leave every reader stupider for their effort. Notably, Turley’s complaint, that Hynes is concealing the identities of child molesters, is factually wrong. The names of every defendant charged with a crime remains a matter of public record in court, a fact over which the prosecutor has no control. The complaint is that Hynes isn’t giving press conferences or sending out press releases to announce the names of those being prosecuted. This is a totally different animal.

Then, the DA has set up a hotline, Kol Tzedek (Voice of Justice), to encourage victims to come forward.  The media has gone nuts because Hynes hasn’t immediately turned over the names of cases that came into his office over the hotline because both the media and other victims demand to know.  It’s understandable that the public wants to know the identities of those accused of rape and molestation within their community, albeit that these are accused and still presumed innocent, but it comes at a price that significantly undermines the ability to prosecute.

There are, despite refusal to acknowledge, some unique problems dealing with this community.

1. The victims often go to their rabbi rather than the district attorney because they eschew the secular legal system.  The rabbis do not want victims to use the secular legal system and use their influence to persuade victims to allow them to deal with it.

2. There is a belief within the community that it is a sin to reveal a crime about a fellow member of the community to someone outside the community. In other words, they don’t rat on each other.

3. If someone in the community goes to secular authorities, and the community learns of it, there is overwhelming pressure to put a stop to it, whether by persuading them not to cooperate or testify, or if they’re not to be persuaded, by destroying them within the community. For example, in the case of a young woman who alleged she was forced to engage in oral sex by a rabbi, a bribe of $500,00 was offered, and then a threat of withholding kosher certification of her boyfriend’s restaurant.

4. Even after a victim has reported a crime, they commonly refuse to testify as they will not “go public” with their accusation and bear the consequences within the community, leaving the prosecutors dangling in the wind without any witness for trial. But this doesn’t mean they don’t want their molester to walk, and they rage against Hynes’ office for their failure to prosecute or the plea deals cut.

It took over 17 minutes to flip through all 6713 channels on my cable box, ending in utter frustration. Not a single television show, not even on cable, about the pentathlon. Where were the crowds, the fans, the sponsors, financing pentathletes so they could train for the upcoming Olympics?  How are young pentathletes supposed to develop their skills in five events so they can compete with the Ruskies, who we all know are professional pentathletes, spending every waking second preparing.  How could this be?

The harsh reality is that aside from a few sports that sufficiently interest viewers so that sponsors are willing to put up big money to get their name plastered somewhere on the participants bodies, most Olympic sports are, in the truest sense, amateur, meaning that there isn’t a buck to be made anywhere for playing.  To the players, it’s love of the sport, with maybe a bit of a quest for glory. 

It doesn’t start when they announce the next quadrennial location, but many years earlier as young men and women decide to dedicate themselves to achieve competence, and later excellence.  There are costs associated throughout, but the families carry them as there is no other way to do it.  From equipment, to training, to the car rides and missed dinners, it’s a commitment. To do something well enough to make an Olympic team is an accomplishment far beyond most of our wildest imagination.

Shockingly, this doesn’t turn into magnificent glory.  Name the guy who took the silver in luge?  Too tough?  Fair enough, what about the the gal who won biathlon in Albertville in ’92?  No? And to add insult to injury, there were no million dollar endorsement deals coming her way either.

It’s fair to question whether any of this matters. After all, if you’re not interested in a sport, who cares if it exists?  But if you don’t begrudge a sport being in the Olympics even if it’s not of interest to you, then it follows that you wouldn’t begrudge the United States Olympic Committee doing what it must to raise the funds to maintain amateur sports that do not raise sufficient revenue to sustain itself for the Olympics.

Unless you happen to give a damn about one of these sports, it’s likely that you haven’t given much thought to the fact that the USOC has been fighting a battle to finance non-revenue producing Olympic sports by, among other things, selling its only quantifiable asset, it’s brand, to corporate sponsors.  Without this, the US Olympic team would be comprised of a handful of common spectator sports and little else. It costs money to field an Olympic team. A lot of money. Did you realize this? Do you care?

In an effort to protect its brand against poachers, the USOC has taken an aggressive stance toward others using either any of its Olympic trademarks. Not surprisingly, this has made some enemies with otherwise nice folks who meant no harm.  The latest involved going to war with knitters.

Via Ken at Popehat :

They told me about a cease-and-desist letter the USOC sent to Ravelry, a site for knitting and crocheting enthusiasts. The USOC confronted Ravelry over a planned event called the Ravelympics, a communal knitting competition and event scheduled to coincide with the London Summer Olympics.

The issue was not merely that the USOC was demanding that Ravelry cease and desist using the term ‘Ravelympics” and remove the Olympic five-ringed symbol from all projects. The issue was that the USOC (which in its wisdom had tasked a law clerk to write a threatening letter to an organization with two million members) displayed such Olympian hubris about the whole thing:

The athletes of Team USA have usually spent the better part of their entire lives training for the opportunity to compete at the Olympic Games and represent their country in a sport that means everything to them. For many, the Olympics represent the pinnacle of their sporting career. Over more than a century, the Olympic Games have brought athletes around the world together to compete in an event that has come to mean much more than just a competition between the world’s best athletes. The Olympic Games represent ideals that go beyond sport to encompass culture and education, tolerance and respect, world peace and harmony.

The USOC is responsible for preserving the Olympic Movement and its ideals within the United States. Part of that responsibility is to ensure that Olympic trademarks, imagery and terminology are protected and given the appropriate respect. We believe using the name “Ravelympics” for a competition that involves an afghan marathon, scarf hockey and sweater triathlon, among others, tends to denigrate the true nature of the Olympic Games. In a sense, it is disrespectful to our country’s finest athletes and fails to recognize or appreciate their hard work.

Now, I don’t know whether the USOC’s law clerk came up with that language himself, or whether the USOC’s word processor has a macro entitled DOUCHIFY. But that’s some seriously DSM-IV-level narcissism there, not to mention catastrophic lack of social skills. I can’t blame the law clerk — it’s the USOC’s fault for failure to supervise him. Law clerks don’t have the sense God gave a handful of gravel. Adults are supposed to take them by the hand and make sure they doesn’t send letters like that. Protip, USOC: if your cease-and-desist-letter methodology resembles that of Girls Gone Wild jailbird Joe Francis, you may want to rethink it.

The language of this letter is atrocious.  There is absolutely no reason nor justification to demean knitting by writing it “denigrates” the Olympics.  As much as some people care about amateur sports, people care about knitting. And they are just as entitled to be treated respectfully.  Ken is absolutely right to call it narcissistic, just as he’s right to note that it’s not some kid-intern’s fault for cranking out a form letter, but the responsibility of grown-ups at the USOC to make sure it’s touch is appropriate and respectful, just as it hopes its sports and athletes are treated by others.

But the post doesn’t stop at criticizing the USOC for its terribly poor choice of language, or even its arrogance.  Rather, the attack goes to the heart of the USOCs efforts to raise money through the sale of its brand, as if this was part of a cabal of greed, sucking money from corporate sponsors so fat men could eat bon bons while runners sweat.  Not surprisingly, the comments generated from this post include some of the typical mindless vitriol of the regulars, coupled with knitters attacking athletics with the same disdain that the USOC showed Ravelry. 

Most knitters who came to let Ken know how much they adored him for being their hero were far more thoughtful, noting their offense at the language, while recognizing that the USOCs intentions weren’t evil.

This efforts follows on the heels of a series of posts, ranging from the support of Aaron Walker, the Oatmeal to Regretsy.  I’ve been pretty effusive in praising Ken’s steadfast support of free speech, even in the face of some daunting foes.  But even so, a concern existed that the both the credibility Ken built, as well as the appreciation, even adoration, of those who enjoyed his free legal support, can become too powerful a club.  Handling such adoration with circumspection is a difficult thing.

Sometimes, there is a clear demarcation of good and bad, right and wrong. Sometimes, it’s a matter of gradation, and we need to limit our focus, and control those inclined toward scorched earth from overstepping the wrong and wiping out everything in sight.  Fostering mindless anger and hatred isn’t a solution.

The grace and propriety of most of the knitters was exceptionally impressive. Their tone toward the USOC was, frankly, better than the USOC deserved, given it’s heavy-handed and offensive attack on the knitters.  

Though not a knitter, I can well appreciate their love of knitting (and crocheting) and the utter reasonableness of their expectation of being treated with respect.  Maybe the nice folks in the house next door to me knit, and there isn’t a reason in the world to suggest that their choice of activity isn’t artistic and worthy of appreciation.  Then again, maybe the people down the block are athletes with Olympic aspirations, and the attacks on the USOC could cost them the funding to go to London this summer.

Neither knitters nor athletes deserve to be attacked.  When wielding the club, we need to give a great deal of thought as to who gets hit.  And we similarly need to be vigilant to use the power with care and circumspection.  Defending the knitters from attack is a fine cause.  But must it come at the expense of the pentathletes?  Who will save them?

You want to be a star.  Admit it, you do.  Heck, if Kim Kardashian can turn herself into a household name and make millions, why not you?  You’re every bit as untalented, but at least you’ve got an expensive education. Shouldn’t that be worth something?

Well, have I got great news for you! Using the Joe Amendola method, you too can be a television star just like Joe!  You can hold press conferences and where a hundred microphones hang on your every word.  You can have former 15-minute-of-fame lawyers like  Mark Geragos doing play-by-plays all about you.   Jeffrey Toobin will fawn over your daring dos, making very serious faces as if it’s all about him.

Nancy Grace will hate you and snarl every time your name is mentioned.

It doesn’t get any better than this.  And all you have to do is watch this video of Joe Amendola’s press conference following the conviction of Jerry Sandusky and answer the following question: How many ways has Amendola undermined his client in order to pretend he’s a star?



CLE credits are not available for this course.  However, every successful graduate will get a chance to be a regular on Piers Morgan Tonight, a chance to  guest host on HLN and a signed copy of  Brian Tannebaum’s How To Be Famous Without Anyone Noticing You Suck, coming soon from ABA Press.

At My Shingle, Carolyn Elefant gives the ABA 20/20 Commission a piece of her mind about their completely ignoring her comments in the consideration of changes to accommodate the Brave New World of jurisdiction under Model Rule 5.5 dealing with the Unauthorized Practice of Law.

So imagine my dismay when I saw that the Committee’s most recent release entitled Issues Paper Concerning Model Rule of Professional  Conduct 5.5 and the Limits on Virtual Presence in a Jurisdiction  seeking comment on an appropriate standard for determining whether a lawyer’s out of state presence in another jurisdiction is so “systematic and continuous” as to justify licensing.  As I’ll discuss, the Committee completely disregarded the very reasonable approach that I proposed   here  which (1) would have ensured that lawyers with a physical presence and virtual presence are treated on equal footing for purposes of UPL and (2) reflects a bright-line, easy test rather than another loosey-goosey, ambiguous balancing test.

While Carolyn uses the example of a lawyer, whose office is near a state border, doing wills for people from the adjacent state. she notes that the concern arose from the birth of virtual law offices, lawyers who are everywhere and nowhere, and for whom jurisdiction and admission are quaint concepts.

For those unaware (and who believe that any issue that doesn’t smack them square in the chops doesn’t exist and isn’t worth their concern), technology has caused two monumental changes that either have or will affect most lawyers and clients in a decidedly problematic way.  First, young lawyers do not perceive a justification for the current concept that admission in a particular state should limit their ability to practice wherever they please.  Not only do they argue that admission should be national, but they largely ignore Rule 5.5 issues because they believe it’s wrong and, well, they shouldn’t have to comply. 

The second problem is that in the process of pursuing life, liberty and happiness, they are up late at night writing things on the internet that is not merely designed to poach clients by promises of cut rate pricing and easy-peasy accommodation, but substantially misinforms clients of their rights and responsibilities under the law.  In part, it’s because they’re young and clueless. In part, it’s because their advice might work in Nebraska, but it’s being read by clients in Louisiana.  And since they eschew the limits of jurisdiction, they make no bones about being national in their advice, even though they’re just plain wrong.

The crux of Carolyn’s complaint is that the 20/20 Commission’s focus is on dealing with the blight of lawyers who disrespect jurisdiction, and thus boldly ignore proscriptions on unauthorized practice.  The ABA’s newfound love of tech, in its effort to be cool, relevant and keep at least 27 members going into the next decade,

But what bugged me when I filed my original comments on Model Rule 5.5 was the proposal to make exceptions to the systematic and continuous rule for virtual practice but not for brick-and-mortar practitioners.   Under both the current and proposed Model Rule 5.5., Annie Attorney, also a Massachusetts-only lawyer, is barred from opening a branch office in Concord, NH and meeting with clients three days a week even if she limits her practice to Massachusetts-only matters (that’s because an office is presumptively considered a “systematic and continuous presence.”  So why should Laura Lawyer be given a pass and allowed to represent New Hampshire clients on Massachusetts issues if she serves clients online from her basement in her Boston apartment?  The answer:  she shouldn’t.

Note: Despite Carolyn’s implications to the contrary, I do not believe she means to suggest that only women lawyers are unethical or engage in criminal conduct.

To the extent that there’s something amiss when the model rules contemplate a carve-out for virtual lawyers that would give them an advantage over brick-and-mortar lawyers, Carolyn’s argument is well taken. The same rationale applies to all lawyers, and the absence of an office doesn’t make you competent to practice in jurisdictions where you aren’t admitted.

But these efforts at “solving” the problem is to facilitate a downward trend, watering down the proscription for the benefit of lawyers at the expense of clients.  The argument boils down to “if a virtual lawyer can provide incompetent legal services outside her jurisdiction, why can’t I?”

Sure, there are practice areas where jurisdictional competence doesn’t apply. Transaction work, regulatory practice, even federal trial practice to some extent. But there are similarly practice areas where jurisdiction is critically important, as state law and practice varies markedly. Yes, a competent lawyer can usually figure out how to work another state’s law with some research and a few phone calls, but they don’t have the answers at their fingertips and may not realize that a distinction exists requiring them to find out what they don’t know.

As long as states get to pass their own laws, and their courts get to regulate their own practice, jurisdiction counts. The virtual lawyer’s argument that they can handle anything (at half the price) may play to the crowd, but we know it’s not true. 

In the age of the internet, we are all each other’s next door neighbor, like it or not. As far as clients are concerned, they can just as easily email the lawyer across town as across the country.  When I get an email from someone in Des Moines, I explain that I am not admitted to practice there, don’t know the law and can’t give them an answer to their question.  Frankly, it would be awfully easy to do a telephone consultation for a “reasonable” internet fee, making a quick buck at the expense of their lives. I could, but I can’t because it would violate my ethical proscription, and more importantly, my rule of not making anyone stupider.

But then, my practice isn’t based on ignoring jurisdiction, making the internet love me in the hope that Ma and Pa Kettle have a valid credit card and having no concern whatsoever for making sure my advice is sound.  It appears that the ABA doesn’t share my view, and that we may soon have virtual ethics to go along with virtual lawyers.  And as Carolyn properly argues, once the proscription against unauthorized practice falls online, it’s only fair that all lawyers get to be similarly incompetent. 

Howdy neighbor. 

Via CNN, Louisiana has enacted a new law requiring convicted sex offenders and child molesters to wear the scarlet letter:

A new Louisiana law requires sex offenders and child predators to state their criminal status on their Facebook or other social networking page, with the law’s author saying the bill is the first of its kind in the nation.

State Rep. Jeff Thompson, a Republican from Bossier City, Louisiana, says his new law, effective August 1, will stand up to constitutional challenge because it expands sex offender registration requirements, common in many states, to include a disclosure on the convicted criminal’s social networking sites as well.

The law states that sex offenders and child predators “shall include in his profile for the networking website an indication that he is a sex offender or child predator and shall include notice of the crime for which he was convicted, the jurisdiction of conviction, a description of his physical characteristics… and his residential address.”

The majority decision out of the 9th Circuit in  U.S. v. Wing is, I am terribly sorry to say, sound and not terribly exciting. It seems that Michelle Wing, during the time lag between having had her supervised release violated and returning to prison to serve the term imposed, went on a bit of a crime spree passing bad checks. 

She then went to prison and was restored to supervised release. The question was whether she could be violated as well for her crime spree.  The Court held she couldn’t, as it happened during that quirky period where the court’s supervisory control had concluded under her prior stint under supervisory release but before the next one commenced. 

In this matter of first impression, we conclude that a district court lacks jurisdiction under 18 U.S.C. § 3583(e)(3) to revoke a term of supervised release based on newly discovered violations of a previously revoked term of supervised release.

Lest anyone forget, nothing precluded Wing from being prosecuted for the crimes themselves, so it’s not like Wing was getting away with anything.  It merely meant that the court couldn’t summarily punish her for violation of supervised release.  It happens.

And so Judge Richard Tallman blew a clot in dissent:

Our story begins in a courtroom. The camera zooms in on the defendant’s table, where a young woman wipes away her tears. The somnolent voice of the narrator, Rod Serling, intones:

Imagine it is June 6, 2008. The location, Missoula, Montana. This is Michelle Wing, a convicted felon who’s in trouble once again. She’s been lying to her probation officer. Routine lies the judge will punish in a routine manner: by revoking supervised release and sending her back to jail for a few short months.

What the judge doesn’t realize, however, is that his act is not merely one of revocation, but of liberation.

Wing will now begin an iniquitous journey through space and time. Her companion on this journey will be fraud. Her route, embezzlement. That’s a signpost up ahead; her next stop: The Twilight Zone.

As the narration fades and Wing leaves the courtroom, the camera follows her. Mystified by her good fortune but happy to exploit it, Wing takes full advantage of the benevolent parameters of this unique parallel dimension. In the three weeks between July 3 and July 23, 2008, alone, she executes eight fraudulent financial transactions totaling $240,000. She spends $600 on toys at Toys “R” Us. She pays a $900 dental bill with a forged check. And, for good measure, she outfits her many fraudulently purchased cars with fraudulently purchased wheels and tires.

The camera soon returns to the courtroom, where Wing’s parole officer is seen pleading with the Montana district judge. The officer tells of Wing’s two-month crime spree. He asks the judge to revoke her supervised release. But the judge —who had thought Wing was still under his supervision—can only stand by helplessly. He cannot punish crimes executed outside his rational world of crime and punishment. He has no jurisdiction over . . . The Twilight Zone.

Perhaps we all have our own vision of the legal Twilight Zone, though I wouldn’t recommend that any criminal defense lawyer share his vision in his next brief by following in the path of Judge Tallman. 

The crux of the dissent’s issue is that one avenue of punishment is foreclosed to the court. Outrageous! Imagine a judge powerless to punish, and forced (how humiliating) to leave it to another judge to do the fun stuff.  Of course, the other judge would also be required to have the prosecution prove guilt first, but then he would be free to sentence at his leisure. 

Word out of the 9th Circuit is to keep a close eye on future decisions, where Judge Tallman will be channeling Love Boat for the majority in affirming an substantially over-guidelines sentence under “the bad guy deserves it” doctrine.

News of  Alec Baldwin’s paparazzi issues gave me pause: No one who hasn’t experienced the joy of the paparazzi can appreciate what this is all about.  Until you’ve actually been there, you can’t believe it.

Consider:

Photographers standing with their back to the courthouse door, making it impossible for you to reach the handle, open the door and enter, without pushing them out of the way. And they won’t move, but just keep snapping pictures. And they won’t be pushed gently, but will stand their ground.

Photographers screaming curses, calling a person vile names, calling a person’s wife and children vile names, all to get a reaction so that they can photograph their target with an unattractive look on their face.

Photographers putting their cameras within inches of a person’s face and standing their ground, such that any attempt by the person to move forward will result in their face striking the camera.

Photographers creating a phalanx into which a person walks to get to the place he needs to be, which then closes in around him and stops, making it impossible for the person to move, whether forward or even backward. They will not move, and leave the person no choice but to stand there or push his way through.

Photographers jumping on the hoods of cars and photographing through the windshield, such that any movement by the car could throw the photographer off the hood and to his death.

This is what it means to deal with the paparazzi.  Forget politeness. Forget civility. This is utter insanity by design.  It’s a manufactured untenable situation from which no one can escape unscathed.

One of the most striking examples is the video of Bernie Madoff trying to enter his building.



Notice the photographer push Madoff back?  Remarkably, Bernie kept his cool and didn’t react as most of us would, shove for shove.  What allows a photographer to behave this way?  The media’s thirst for images, and the uglier the better.  No doubt the photographer who pushed Madoff hoped he would react poorly, whether by making an angry face, saying something or, in the best of all possible worlds, physically responding.  He didn’t, but this bit of video was replayed in almost every report on Madoff.

And every time I watched it, I was disgusted by the photographers’ conduct. No matter what Madoff did, or what you think of him, this was wrong.

Meet the paparazzi.  And the photographer who says he was “attacked” by Baldwin is considering filing charges?  Poor baby.  It would be a terrible shame if a member of the paparazzi got a boo boo because their target didn’t play dead.