While the subject of the Individual Mandate hasn’t launched a thousand posts around the criminal blawgosphere, it’s caused the murder of a million words among legal academics. No surprise, given its controversy and importance. In the aftermath, it’s also given rise to a new round of lawprof mudwrestling. 

Via Ilya Somin at Volokh Conspiracy :

Both Dave Hoffman and Orin Kerr have recently suggested that some of the liberal legal commentators who claimed that the individual mandate was a slam dunk case for the government were doing so for the purposes of “shaping the narrative” about the case, and may not have actually believed what they said. Paul Horwitz of Prawfsblawg suggests that such advocacy blogging (at least by legal academics) is unethical.

Advocacy is unethical? It might sound ridiculous to advocates, as it’s what comes naturally to us.  But it’s not merely advocacy, but advocacy unsupported by the belief that their position is legally correct rather than merely the writer’s desired outcome.

At the same time, Horwitz is right to suggest that it is wrong for an academic to publicly “assert… with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence” for the purpose of influencing public opinion. Doing so attaches the veneer of academic respectability to an opinion that isn’t actually backed by the scholar’s expert judgment.

There’s the hitch, that scholars who advocate for a position, even if it’s not really supported by their “expert judgment,” undermine the “veneer of academic respectability.”  In other words, they’re selling out their lofty position as scholar to achieve a desired end.  Kinda like being a prosecutor, I suppose.

The reason this is problematic amongst lawprofs is that their “opinions,” according to themselves, “shaped the narrative.”  After all, if a lawprof says a law is constitutional, doesn’t the Supreme Court pull out its big old rubber stamp?  While trench lawyers count votes at First Street, the justices count up the articles by lawprofs and whichever side gets the most votes wins the day.

Dave Hoffman called baloney.

One small quibble.  I hear repeatedly that debates in the blogosphere “sharpened” arguments against the mandate, and the liberal academy’s “groupthink” weakened the pro-mandate case. We may never know. But, frankly, this seems like exactly the kind of thing that conservative academics – long suffering and marginalized – would like to believe (and liberals fully believe about viewers of fox news!)  But whatever honing (or comforting) the blogosphere has done, it strikes me as highly unlikely to have influenced Justice Kennedy’s sense of his place atop history, his views about the contours of the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” and Justice Roberts’ consequent 5-4 anti-ACA or 6-3 pro-ACA opinion.  And isn’t that all that matters, in the end?

To put this more simply, no one cares what the warring tribes of scholars have to say except to the extent that someone can cite to them in support for a facile way to explain the result desired by the Court.  That they huff and puff amongst themselves is fun to watch, but the arrogance of believing that they “shape the narrative,” and the rest of the world watches and learns at their bended knee makes an outsider chuckle. 

The academics are aware that judges don’t read their brilliant law review articles, much to their chagrin. Do they seriously suspect that Justice Kennedy is lurking on Volokh Conspiracy nightly to figure out which side to vote for? 

The notion of their opinion being truly more worthwhile because of their veneer of academic respectability is one that frightens me enormously.  Imagine if this were true, and important decisions were left in the hands of a bunch of smart but  “youthful” folks who were so seriously lacking in real world experience that they couldn’t be trusted to find a courthouse, no less figure out what to do once they were inside.  They live a cloistered existence, largely talking and fighting among themselves except when the odd reporter calls for an opinion about a subject they know nothing about, yet can’t wait to offer their views.  Shaping the narrative is all the rage.

The question remains why it’s unethical for a scholar to advocate for a position she supports. On a practical level, are lawprofs not allowed to believe in a greater right and wrong, and seek to promote what they believe is right?  Even if they recognize the validity of arguments against their belief, as does pretty much any thinking person even though they lack the respectability of a scholar, does that preclude their belief that their desired position enjoys sufficient, if not greater, validity to be worthy of their support? 

The suggestion that supporting and advocating for positions they support is somehow improper strikes me as a mechanism to silence the opposition, to quell disagreeable views. If a scholar advocates a position which is laughable, then let other laugh at him for it. But that others disagree with a lawprof’s argument doesn’t crack the veneer of respectability, or implicate respectability at all. We’re allowed to disagree. Even smart folks are allowed to disagree.  Even smart folks are allowed to put greater stock in a position that may not be the orthodoxy.

To the extent academics have any impact on the narrative, it seem unethical (if that word has any real implication in espousing views in which one believes) to remain silent or state a position that supports the opposite of what a scholar thinks is the best course.  Put on your big boy lawprof pants and support the view that you think is right, even if other guests at the party think otherwise.

A few years ago, I wrote that we either stand for something or stand for nothing, with an homage to the J.H. Blair coal miners of Harlan County, Kentucky.  Are lawprofs better? There’s nothing unethical about standing up for what you believe in.

While the killing of Trayvon Martin by George Zimmerman has give rise to an important conversation about race, guns and killing in America, it’s largely been theoretical. What actually happened has been a moving target, with the police being nearly useless in providing any meaningful answers due to their cursory investigation.

As the video of Zimmerman after the incident emerged, the narrative shifted away from his story of being beaten, his nose broken and his head banged against the sidewalk.  The images on the screen showed none of these injuries.  There were reasons why that might happen, though there are far better reasons why a broken nose would look like a broken nose, and why there should have been blood on his shirt.

But the  Daily News reports a story via the  Orlando Sentinel about one of the most contentious aspects of the encounter, the scream.  Did the scream come from George Zimmerman, as he claims, or Trayvon Martin, who can’t speak for himself because he’s dead?

While it would be in everyone’s best interest to keep their house clean, the protection of Section 230 of the Communications Decency Act is without question the single most important factor that allows the flow of communication on the internet.  This, apparently, is killing Connecticut’s paragon of virtue, partyless Senator Joe Lieberman.

The word just out is that Lieberman is sponsoring a bill to amend Section 230. Well, amend is too kind a word. Emasculate strikes closer to home.  The  McIntyre v. Ohio.

Regardless of how you feel about bullying, Happysphere, or any other variation of partially censorious speech, we will all fall together if Section 230 imposes liability on website owners for the comments of others. Don’t let this happen.

H/T Brian Cuban

Update:  Well, it was April 1st, you know.

Once it gets a foothold, it’s hard to stop.  First Alabama. Then Connecticut. Now Arizona. From Eugene Volokh (again). Both houses have passed  Arizona HB 2549, and it awaits signing.

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

It’s grown tedious discussing what’s wrong with such laws. Use a curse to characterize a supporter of this law on your iPhone and you’ve committed a crime?  What a bunch of assholes. Oops, guilty.

So, under the statute, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would be a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else.

I’m not big fan of using profanity in general, but only because I believe we can express ourselves without it.  Aside from that, it’s not as if I haven’t heard it, don’t occasionally use it, or start to shake when my delicate ears/eyes are assaulted. 

The question is why these laws, so obviously unconstitutional to pretty much any lawyer not blinded by the desire to shut others up, have become the unquestioned darlings of legislatures everywhere?  Most legislatures are lousy with lawyers, elected in small part because of their education and skills in handling such questions as the constitutionality of their enactments. Are these the stupidest lawyers around who have finally found a place where legal ability has no place?

What are the chances that some judge somewhere is goind to share the legal ability of his legislators and uphold a law like this?  Even if it’s eventually held unconstitutional, how many people will be prosecuted, maybe punished, for the exercise of speech?

And if this happens, how many blawgs will be banned in Arizona as continuing criminal enterprises?

Free speech is under full scale assault in the United States, and there are a great many anti-bullying lawprofs and lawyers, not to mention well-intended members of the public, who are so vociferous about bullying (whatever that is) that they will not shed a tear over speech.  Don’t think this is going to be an easy problem to fix, or that we aren’t facing a very real problem.

First Alabama. Now Connecticut. It’s growing, like fungus. Laws arising to guarantee that no one shall utter a harsh word and hurt anyone’s feelings. Enforced with the might of the state and some quiet time in prison. Volokh provides the text : 

The Raised Bill No. 456, sec. 2 would provide, in relevant part:

(a) A person commits electronic harassment when such person, with intent to harass, annoy or alarm another person, transmits, posts, displays or disseminates, by or through an electronic communication device, radio, computer, Internet web site or similar means, to any person, a communication, image or information, which is based on the actual or perceived traits or characteristics of that person, which: …

(2) Has a substantial and detrimental effect on that person’s physical or mental health;

(3) Has the effect of substantially interfering with that person’s academic performance, employment or other community activities or responsibilities;

(4) Has the effect of substantially interfering with that person’s ability to participate in or benefit from any academic, professional or community-based services, activities or privileges; or

(5) Has the effect of causing substantial embarrassment or humiliation to that person within an academic or professional community.

According to the Courthouse News, the judgment of $2.5 million against Crystal Cox has withstood a motion for a new trial, championed by some of the bigger guns in blawgosphere,  Eugene Volokh and the Electronic Frontier Foundation . While the law in the case may be problematic, the decision itself reflects one of the most fundamental and common problems with developing law; It’s based on the outlier.

Remember when the Virginia Bar Association found that Horace Hunter’s blog  would require an advertising disclaimer?  Many shook their heads in dismay, as the free speech hero was smacked.  But then, Horace Hunter didn’t have a blog. Sure, he called it a blog. Sure, the Virginia bar called it a blog. But it was no blog, and it had nothing to do with what others in the blawgosphere did. It was nothing more than blatant advertising masquerading as a blog.

Same for Crystal Cox.  She calls herself an “investigative blogger.” If she called herself a “savior,” she would have a better chance of being Jesus. I won’t link to her because there’s nothing she’s ever written that deserves to see the light of day. She’s a blight on the internet, an affront to any person who has the slightest concern about the insanity that appears regularly in a google search.  She is not like us. 

Anyone with a keyboard and internet access can claim to be a blogger.  There is no test for character and fitness. Or sanity.

Aside from representing herself at trial, which certainly didn’t help matters, and without reference to the utterly bizarre and wholly unfounded allegations she claimed, there’s a special twist that needs to be understood.

 “[T]he uncontroverted evidence at trial was that after receiving a demand to stop posting what plaintiffs believed to be false and defamatory materials on several websites, including allegations that Padrick had committed tax fraud, defendant offered ‘PR,’ ‘search engine management,’ and online reputation repair services to Obsidian Finance, for a price of $2,500 per month,” Hernandez wrote.

“The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee. This feature, along with the absence of other media features, led me to conclude that defendant was not media.”

The judge clarified his position on the media status of bloggers, which was an issue that made this case a cause célèbre among some free-speech advocates.

“In my discussion, I did not state that a person who ‘blogs’ could never be considered ‘media.’ I also did not state that to be considered ‘media,’ one had to possess all or most of the characteristics I recited,” Hernandez wrote.

The judge said he focused on lack of evidence that would establish Cox as a member of the media.

New York criminal defense lawyer Nathan(s) Burney has a  lengthy and thoughtful post about a rarely discussed problem with the legal system and its various participants. The gist is that our system is conceived based on an assumption that the key players, from defendant to juror, prosecutor to cop, are rational actors, but they’re not.

[Nobel Prize winning economist Danny Kahneman’s] Prospect Theory shows that people aren’t rational. They’re more risk-averse than they ought to be, when choosing between things posed as “gains.” When options are presented as “losses,” people are prone to take more risks.  A year added to a sentence is significantly more valuable to a client than a year whittled off, though they both consist objectively of the same 365 days.

This has HUGE implications for criminal law, beyond the tactics and strategy of a particular case. Our entire jurisprudence is built on the presumption that people, in general, are rational actors.

In the course of explaining how this impacts the critical players in the system, criminal defense lawyers were somehow left out of the mix. Are we the only rational people in the mix? Come on. In a perfect world, we’re detached and unbiased, capable of making unemotional assessments of both the case, our client and our adversaries. And ourselves. But then, in a perfect world, everyone else is a rational actor too, so there’s no basis to reserve to ourselves such a lofty place.

Nathan(s) has done an excellent job of discussing how the Prospect Theory affects the decision-making of defendants, jurors, prosecutors and police, and I urge you to read his post. There’s no purpose in my repeating it here, so this post will be limited to the player left out, the criminal defense lawyer.  In his example of a defendant failing to rationally assess risk, Nathan(s) states:

Your client’s looking at 10 years after trial, but you figure a 70% chance of acquittal? Rationally, going to trial is the equivalent of taking 3 years. If the offer is 7, the rational decision is to go to trial. But your client doesn’t see it that way. His starting reference point is that 7-year offer. He just sees those extra 3 years if he loses at trial, and they far outweigh the 4 years he objectively saves by going to trial — and they even outweigh the 7 years he saves if, as is probable, he wins.

My very first client asked me the question that’s been repeated thousands of times since: what are my odds of winning? Nathan(s) example uses a 70% chance of acquittal. In almost 30 years, I’ve never been able to answer the question that well.  Back then, I used to say, “I’m not Jimmy the Greek; I don’t do odds.” While experience has allowed me to make gross assessments, such as “excellent” or “not a chance,” to suggest that we possess the ability to put such a fine point on the percentage is, in my experience, ludicrous.

There are so many variables that go into the ultimate result that are unknown at the time a decision on whether to take a plea has to be made that it can often be a blind guess. Whether the evidence will play out as the prosecutor suggests; whether the jury will be swayed by emotion, anger, hatred, bias, sympathy, empathy, and the rest of the panoply of feelings that trump facts in almost every trial.  We usually don’t have a firm knowledge of the prosecution’s evidence, though few realize how little we have to work with until they find themselves in the defendant’s chair.

And then there’s our own internal issue, the belief that we, gladiators, hired guns, fighters for freedom, can pull it off. Criminal defense lawyers tend to believe in themselves and their abilities to make magic happen as an occupational necessity. It’s impossible to stare down the government if you don’t. At the same time, this belief can easily skew our vision of the defendant’s chances at trial. We wrap ourselves in our cloak of invincibility and believe we can do anything.  We find out when the verdict comes in how right, or wrong, we are.

On the other hand, it is often in the financial self-interest of the criminal defense lawyer to advise the defendant to cop a plea.  You’ve been paid, and should the defendant take the offer, the case is over. No more work to do. As I’ve explained more times than I care to remember, when defendants complain afterward that their lawyer was never willing to take the case to trial, when they retained a guy with a fee that was a fraction of what other lawyers, the ones who would be just as happy to take a case as not, charged, did they not realize that the lawyer never intended to try the case? Do the math, guys. At least this lawyer’s fee was rational, albeit utterly deceptive, unethical and irresponsible.

To the extent that criminal defense lawyers have the capacity to make a neutral and detached assessment, that comes with experience combined with competence. After years of working in the well, the criminal defense lawyer has a basis upon which to provide some insight to predict the outcome.  The rookie, on the other hand, has nothing. Without sufficient trial experience, it’s impossible to assess the likelihood of a positive outcome. It’s pure bluff and swagger, with absolutely no foundation.

A smart young lawyer will run it past a more experienced lawyer, but the prediction still has to be tempered by the lawyer’s trial skills, a serious unknown. Whether the rookie will tell his client that he really doesn’t have a clue because he lacks the experience to offer anything remotely resembling a valid assessment is another ethical question.  Self-assessment is notoriously unreliable.

As Nathan(s) asserts, we have constructed a system that assumes all the actors are rational, when the reality is that all the players suffer from some degree of color blindness.  There are better and worse, and that goes for everyone involved. But the criminal defense lawyer is no more immune from irrationality than anyone else in the game, and the realization of this deficit is critical to overcoming our bias and providing the most meaningful advice and counsel to our clients as possible.

While I hesitate to admit it, I occasionally read the Size Matters column at  Above the Law by the pseudonymous Valerie Katz.  That she uses an alias is completely understandable, given her role of representing the small law version of an intellectual void and the disturbing picture beside her name.  But this one struck me as worthy of further discussion.

After a critical opening paragraph about the efficacy of eating chocolate to get “skinnier,” she writes:

Continuing in that vein, I found an article that confirms my long-held views on how to succeed as a small-firm lawyer: take frequent breaks, go on vacation, nap, and wear sweatpants. Don’t believe me? Check this out….

According to Tony Schwartz in his article The Magic of Doing One Thing at a Time, multitasking is a productivity killer. Schwartz argues that mutitasking is the reason that 25-50% of the work force is burned out. Multitasking splits one’s attention such that one never completely focuses on one task, and spends a longer time to complete various tasks. Worse yet, multitasking “relentlessly burn[s] down your available reservoir of energy over the course of every day, so you have less available with every passing hour.”

Initially, Katz misapprehends the gist of the article from Harvard Business Review.  Not only does it not promote the wearing of sweatpants (is this a woman fantasy, as I’m unaware of any men who dream of the day they can come to work in sweatpants), but the focus is on multitasking, and the damage it does to one’s health and productivity.

Why is it that between 25% and 50% of people report feeling overwhelmed or burned out at work?

It’s not just the number of hours we’re working, but also the fact that we spend too many continuous hours juggling too many things at the same time.

What we’ve lost, above all, are stopping points, finish lines and boundaries. Technology has blurred them beyond recognition. Wherever we go, our work follows us, on our digital devices, ever insistent and intrusive. It’s like an itch we can’t resist scratching, even though scratching invariably makes it worse.

Schwartz goes on to list a number of activities which, he asserts without much explanation, are common.

Tell the truth: Do you answer email during conference calls (and sometimes even during calls with one other person)? Do you bring your laptop to meetings and then pretend you’re taking notes while you surf the net? Do you eat lunch at your desk? Do you make calls while you’re driving, and even send the occasional text, even though you know you shouldn’t?

I don’t, except for eat lunch at my desk and play Spider Solitaire when I’m bored on a phone call, but your mileage may differ. From this Schwartz goes on the list a number of things that can be done to cure the resultant burn out.

How about this? Just stop doing it. 

Schwartz accepts as a given that we are utterly incapable of living the hard-pressed multitasking life, playing with toys because we have them and can’t possibly take our eyes off the screen, even as we sit in the presence of another living person for the ostensible purpose of having a conversation.  Rather than blame the iToy, he urges employers to give their people breaks and vacations.

That people need time away from work, both to recharge as well as rest their synapses, it’s not because they can’t be expected to divert their eyes from their iPad.  With careful planning, one can structure ones work so that there is time to get away. This is a good thing, even a necessary thing.  But not because we’re too weak to control our love of shiny things.

What’s worse is that Schwartz neglects to mention that multitasking is nasty lie we tell ourselves, that we can do seven things at once and that somehow makes us “special.”  Here’s the harsh reality for those of you who put multitasking on your resume as if it’s a positive: It means you do  seven things poorly rather than one thing well. You think differently? Unless you’re superman, you’re fooling yourself.

Initially suspecting that multitaskers possessed some rare and enviable qualities that helped them process simultaneous channels of information, Professor Nass had been “in awe of them,” he said, acknowledging that he himself is “dreadful” at multitasking. “I was sure they had some secret ability. But it turns out that high multitaskers are suckers for irrelevancy.”

Hard work requires focus.  It requires thought.  When the golden ring is completing a bunch of tasks rather than completing tasks well, what you get is tasks finished poorly.  That may be good enough in some other occupation, but it’s not acceptable for a lawyer.

Ironically, Schwartz concedes this to be true:

I know this from my own experience. I get two to three times as much writing accomplished when I focus without interruption for a designated period of time and then take a real break, away from my desk. The best way for an organization to fuel higher productivity and more innovative thinking is to strongly encourage finite periods of absorbed focus, as well as shorter periods of real renewal.

Yet, nowhere does he state the obvious, that clutching the iPad, iPhone, iToy all day long in your grubby little hand will not only burn you out, but prevent you from focusing on a single task and performing it well. Here’s a concept: When some extraneous junk causes you to have problems, rid yourself of the extraneous junk. Compensating for it elsewhere is only as necessary as the junk itself. You need air and food. You do not need 24/7 access to email and Facebook. Problem solved.

As for whether you wear sweatpants while working hard, that’s up to the person signing your paycheck, but adds nothing to the mix that I can see.

The point is that while breaks and vacations are needed from time to time to recharge ourselves, when you are busy at work, be busy at work.  Do not twit, text, surf or pretend you’re Pavlov’s dog whenever you hear the sound of a digital chime.  You can’t do it, no matter how much you want to believe otherwise.

Via Sentencing Law & Policy, a  Denver Post article raises a difficult and troubling question: What to do with a life who kills in prison?  The article asks a somewhat different question reflected in the title, when lifers kill in prison, is it a waste to prosecute them?

The good people of Nassau County, New York, thought they were electing a district attorney when they cast their vote for Kathleen Rice. Later today, they will learn otherwise.  As for the rest of the nation, they will learn that they got no vote in the matter, but still feel the great might that Rice will hold over their children’s future. You see, Kathleen Rice has positioned herself as our National Testing Czar.

Via Newsday :

The Nassau County district attorney and two of the nation’s largest standardized testing companies will announce Tuesday that they have agreed upon security reforms in college admissions tests, a spokesman said Monday.

Kathleen Rice will appear at a news conference at 10 a.m. with officials from ACT and College Board, which creates and runs the SATs, her spokesman John Byrne said.

When you want everyone to pay attention, you hold a press conference to announce a press conference, thus assuring that no one misses the critical event.  The opportunity grew out of the SAT testing scandal, first revealed by the Superintendent of the Great Neck North school district.  Rice seized the opportunity to prosecute both the test taker, the guy who was paid to slip in the door as if he was the student, but the students in whose name the test was taken.  They must be prosecuted, Rice announced. Whether she pounded the podium is unknown, but I prefer to think she did.

A number of sound reasons were offered to justify prosecution, turning more students into criminals. There were also solid reasons not to prosecute.  One reason to prosecute went unmentioned: it provided a fabulous opportunity for a local district attorney to get her name in the media as savior of the integrity of high school testing.  It also provided an opportunity to leap to the larger stage, a national stage, as the Nation’s Savior.

Later today, Kathleen Rice will announce changes in the security of the SAT and ACT tests to prevent cheating.  Who isn’t against cheating? Cheating is bad, we all agree.  Stopping cheating is good.

What connection Rice has with the handling of the SAT and ACT isn’t exactly clear. The College Board isn’t a party to the prosecutions, and Rice has no hold over them. Yet somehow, they have been persuaded to negotiate with her about how their security will be structured.  I have no clue what they will announce later today, and for all I know, it will be a perfectly reasonable plan.

But who is Kathleen Rice to dictate how a nationwide test be administered?

The parents of high school students in Palo Alto didn’t get a say in Rice’s assumption of authority to dictate the security measures that may be imposed on their children.  There are no doubt security experts, people trained in such matters and who have given substantial thought to not only the best methods, but the unintended consequences of the various alternatives. Kathleen Rice is not one of them.

It’s unclear what the new security methods will be, or what burdens they will place on parents and students. It’s unclear whether they will be effective, or just give the appearance of efficacy until some bright person figures out how to circumvent them.  Or maybe they will be exactly what is needed. Who knows?

What is known is that nobody elected Nassau County District Attorney Kathleen Rice to be the nation’s hall monitor.  And yet it appears that her assumption of the authority will happen without so much as a raised eyebrow. 

Consider your own local prosecutor, and what national authority you would want on her plate. It’s pretty darn cool to bootstrap a minor local elected position into a national platform, with the klieg lights shining their warmth down and a round of appearances on all the morning talk shows.  What prosecutor wouldn’t enjoy a little extra attention?  Even though the job of Testing Czar has been taken, there is still plenty of opportunity to seize control of a nation.  All one needs to do is find the right opportunity and run with it.