What’s My Crime?

When Harvey Silverglate, notorious civil rights lawyer, says we commit three felonies a day, only those of us who appreciate what he’s saying nod our heads.  But when that arch bastion of civil liberties, the  Wall Street Journal agrees, the message gets out.


Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby.



In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities “notified me to get a lawyer and a damn good one,” Mr. Anderson recalls.

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.



Faced with that reality, the two men, who didn’t find arrowheads that day, pleaded guilty to a misdemeanor and got a year’s probation and a $1,500 penalty each. “We kind of wonder why it got took to the level that it did,” says Mr. Anderson, 68 years old.

Wendy Olson, the U.S. Attorney for Idaho, said the men were on an archeological site that was 13,000 years old. “Folks do need to pay attention to where they are,” she said.


US Attorney Olson is so right, folks do need to pay attention to where they are.  They’re in the United States of  America, where a very hard working Congress has created so many crimes, many of which are so trivial in nature, that no one can provide an accurate count.



The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.


There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.


Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.


This won’t come as surprise to regular readers, but it raises an issue that may play a significant role going forward.  A fundamental axiom is that ignorance of the law is no excuse.  Not that every citizen is supposed to keep a set of Title 18 of the United States Code on his bookshelf (with pocket parts), as if any lawyer has read it cover to cover, but that the proliferation of criminal sanctions as the backside of regulation makes the axiom absurd. 

On the one hand, it’s the fist in the legislative scheme, that for every bit of conduct Congress would have us perform or not, the flip side is a penalty for our failure to adhere.  Without it, regulations would be toothless, and violations of regulation, intentional and malevolent, would be meaningless. 

Of course, the need for a criminal sanction rather than a civil one can’t quite be explained this way, but then what would legislators have to say when it came time for re-election?  Indeed, the WSJ articles provides a wealth of examples of facially ridiculous “crimes” that turned unsuspecting people, from lobster importer Abner Schoenwetter (sentenced to 69 months) and auto racing legend and snowmobile challenged Bobby Unser (sentenced to $75 fine), into criminals.  No doubt somebody crowed about how his legislation saved us from their heinous acts.

When it comes to financial and corporate crime, the government has undertaken to qualify the business judgment of corporate executives by the sensibilities of young lawyers and special agents who have never spent a day working in any industry whatsoever.  For such amorphous concepts as fraud, effectively defined as doing things differently than an AUSA thinks you should, even if they made money for the corporation, saved money for the clients or were consistent with centuries old business practices, the penalties are monumentally harsh following the public’s outcry after Enron.  Ever wonder why the government bought 54  $600 toilet seat shrouds?  This is what happens when slavish adherence to regulation replaces thought.  This is how the government expects us all to conduct ourselves, upon penalty of imprisonment.

That the Wall Street Journal thought to highlight this issue is the sort of thing that carries the potential of turning heads.  The glaring failure of Congress’ use of criminal sanctions to regulate conduct that otherwise bears no blameworthiness, and the fallacy that it’s needed or no one would follow the law, is well noted in the article.

But as long as people keep screaming that we need another law in order to achieve a perfect society, no matter that Casey Anthony’s acquittal isn’t a regular occurrence, we will not only continue to suffer a never-ending increase in criminalization, but watch as laws meant to solve one crisis put unintended people in prison.

So does the axiom that ignorance of the law is no excuse merit continued vitality?  What of the maxim, de minimus non curat lex?  What about the requirement that criminal laws provide fair notice of what they prescribe, when Supreme Court justices can’t agree whether certain conduct is criminal, yet its sufficient to put you or I in prison? What about the fact that there are so many federal criminal laws that nobody, nobody, knows how many?

It would be easy for a defendant to claim, “but I didn’t know,” every time some malum prohibitum regulation was violated, and this would wreak havoc with the existing approach to the government’s regulatory scheme.  Prosecutors might contend that we can trust them to exercise restraint in the prosecution of otherwise nice, law-abiding folks, but the examples in the article clearly demonstrate the contrary.

I countered Harvey’s three felonies a day with three felonies by coffee break, not as catchy a title but probably more accurate.  Maybe the answer is that our inability to know whether conduct is criminal can no longer be captured by the notion of presumptive ignorance, but rather by the need for notice? 

When we hit 5000 federal crimes, the burden should shift to the government to tell us first that we can’t do something before we become criminally liable for it.  If Congress doesn’t like this idea, there’s always an alternative: Stop creating crimes.

The Value of a Cop

Detroit Gang squad cop Nevin Hughes must have been one heck of an officer.  Not just tough, but something truly special.  After all,  Hughes had been sued eight times over his 15 year career and cost the taxpayers more than $677,000 in damages.  He had to be some sort of supercop to be worth that much.

And now it’s happening again.




This time there’s video, and so it now requires stern warning number 3:


When video surfaced last month of Detroit Gang Squad officer Nevin Hughes apparently roughing up a customer at a local gas station, Chief Ralph Godbee vowed that “alleged behavior of this nature will not be condoned or tolerated.”

Does that mean it was condoned and/or tolerated the last 8 times?  You bet, to the tune of more than a half million paid out to the public.  Aside from the pain, humiliation and injury, running into Officer Hughes was like winning the Detroit lottery, even though the price of the ticket was a bit steep.



Hughes is currently on restricted duty as Internal Affairs reviews accusations made last month by Harrison Township resident DeJuan Hodges-Lamar, who says the officer assaulted him at a Zoom gas station on Detroit’s east side in 2009.


The suburban college student claims he was sitting in his SUV awaiting an open pump when Hughes snatched his keys from the ignition, put him in a choke hold and — as captured by a surveillance camera — threw him to the ground.


It’s difficult not to notice that Hodges-Lamar is black, one of the foremost indicia of gang membership.  If you ask any lawyer who defends people accused of gang violence, breathing is also a primary indication of gang membership.  Wear a red shirt? Gang member. Blue shirt? Gang member. Tattoo? Major gang member.  Black of Hispanic? Do you really need to ask?

The cops who work gangs will tell you about how violent they are, and indeed, it’s true.  Some gangs are terribly violent.  Worse still, they’re often random in their violence, beating, sometimes murdering, people who no reason other than to prove their machismo and worthiness of being in the gang. 

It’s not an easy job, working the gang beat.  And to allow a gang member the courtesy of even momentary respect is to risk one’s life.  This would violate the first rule of policing.  And yet, not every young person a gang cop comes across is a gang member.  Sometimes, black and Hispanic young men are just black and Hispanic.  I know, but it’s really not a crime.

Gang cops become jaded pretty quickly.  They see gang members everywhere.  They see gang members as subhuman.  They see every young person of color as subhuman, and a potential threat.  The good ones know how to turn it down. The bad ones can’t, and treat them harshly.  The really bad ones see no problem with doing so, and become as violent, if not more, as the gang members they are there to police. 

This isn’t one of the easier jobs in law enforcement, attempting to deal with the proliferation of gang members.  But nobody promised cops that their job would be easy. And nobody said it was acceptable to assume the methods of your enemy, to pre-emptively assume all black and Hispanic youths to be criminals and violent, to physically harm them before they have a chance to harm you.

But this doesn’t seem to concern those in law enforcement charged with assuring the public that their officers aren’t worse than the criminals.  The people of Detroit have more than $677,000 reasons to believe that Chief Godbee is blowing smoke, “concerned” now only because a video has emerged that makes him and his department look bad.  That the taxpayers paid out such a huge sum meant nothing, and Nevin Hughes was sent out to the street to harm again.

And lest we believe that the eight prior cases exhausts Hughes’ potential for abuse, it wouldn’t be much of a stretch to assume that there were a couple other instances where someone was beaten but failed to sue.  Or assaulted by whose injuries weren’t sufficiently severe to capture a lawyer’s interest.  Or whose constitutional rights were violated, which didn’t sufficiently surprise the citizen to take any action in response.  Cops inclined to be violent toward people tend to do so with unfortunate regularity.  Not everyone ends up suing.

Yet Nevin Hughes remained on the force, out on the streets working the gang squad, and nobody cared.  Yup, he must have been one heck of a cop, valued more than the amount of the payments to his victims.  That or the Detroit Police Department doesn’t mind that its officers are just as bad as the gang members, and that the citizens of Detroit paid gravely for this cop, both in money and blood.

An Accuser Takes to the Airwaves

Accusers of rape, ordinarily referred to by politically correct society as victims, are usually unidentified to protect them from attack, humiliation and inspection.  But when the New York County District Attorney’s office conceded that the accuser of Dominique Strauss-Kahn was not credible, after the bizarrely harsh treatment afforded DSK by  the media and the court, no one  referred to her as victim anymore.

Nafissatou Diallo decided not to slink away.  Instead, she went on the attack.  In an unprecedented interview in Newsweek, she tells her story. she tells a graphic story of what happened in the Sofitel room.  She avoids discussion of things that don’t help her cause.  The story is unchallenged, which doesn’t make it false.  Just untested.

Via TalkLeft, the  defense responds to the three hour interview conducted in her lawyer’s office.


Ms. Diallo is the first accuser in history to conduct a media campaign to persuade a prosecutor to pursue charges against a person from whom she wants money. Her lawyers and public relations consultants have orchestrated an unprecedented number of media events and rallies to bring pressure on the prosecutors in this case after she had to admit her extraordinary efforts to mislead them. Her lawyers know that her claim for money suffers a fatal blow when the criminal charges are dismissed, as they must be.


This conduct by lawyers is unprofessional and it violates fundamental rules of professional conduct for lawyers. Its obvious purpose is to inflame public opinion against a defendant in a pending criminal case. The fact is, however, that the number of rallies, press conferences, and media events they have orchestrated is exceeded only by the number of lies and misstatements she has made to law enforcement, friends, medical professionals and reporters. It is time for this unseemly circus to stop.


It’s often said that we don’t try cases in the media.  It’s not quite true.  We try cases wherever we can aid our cause, and this putative axiom came about because we can’t control the media and don’t trust it.  Since defendants are presumed guilty, the media tends not to be kind to them, and any effort to work with the media usually comes back to bite the defense in the butt.

What makes this particularly unusual is that this isn’t happening upon the media’s initiative, but at the hand of Diallo’s lawyer, Kenneth Thompson.  As Jeralyn Merritt points out, the strategy is less than kosher.



The only excuse I can fathom for this kind of behavior is if the accuser’s lawyer knows something we don’t know: that DA [Cyrus] Vance has already decided to drop the charges against Dominique Strauss-Kahn. Otherwise, this interview violates every ethical rule in the book. As the Supreme Court said in Shephard v. Maxwell:



Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.


….Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. Even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other device, these measures entail serious costs to the system.


If Vance doesn’t join in a defense motion to prevent this accuser from publicly claiming DSK is guilty and publicizing her version of the details of the encounter, I hope the judge steps in on his own. “As the Supreme Court has said, legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” (Bridges v. California, 314 U.S. 252, 271)(1941).


Whether the motive is to prejudice the jury pool, influence public pressure to compel Cy to prosecute, rehabilitate Diallo’s reputation in the hope of a settlement or money judgment or keep the attention alive isn’t as clear to me, but the issue of the perverse relationship between lawyers and the press remains.

Certainly the media won’t shoulder any blame for using whatever fodder it’s offered.  Isn’t that the point of a free press, to disseminate whatever news people find interesting?  It’s not the media’s job to concern itself with the accuracy or truthfulness of what a person says. That they say it is enough to publish it.  It’s wrong but true. The media enables the sickness, and they know it, but they have airtime to fill and eyeballs to capture, and they will do whatever they have to do.

It comes down to the lawyers, then, to conduct themselves properly, to neither use nor be used by the media to undermine the integrity of the legal system, regardless of motive.  Unfortunately, lawyers suck at it.  We weren’t very good about it before, and we’re becoming increasingly bad at it.  Like the idiots who engage in conduct likely to kill them, videotaping it for upload to Youtube in the hope of it going viral and turning them into overnight stars, lawyers desperate for attention ignore all ethical precepts in the hope of getting on air.

This disease has reached epidemic proportions. 

There’s been much talk of legal ethics lately, with lawyers playing the media for their own benefit.  What’s become painfully clear is that lawyers don’t care, and the public doesn’t know. 

It used to be enough for a lawyer to have a full calendar and be respected by his peers.  The silent telephone was a problem, as lawyers turned to increasingly less savory ways to get business and fill up those empty daytime hours.  The respect of their peers was replaced by the adoration of media prominence.  See how many lawyers twit about their television appearances or speaking engagements to let others know of their importance.  It offers no insight as to their competence, but fame has become the most important metric.

As the response issues by Bill Taylor and Ben Brafman says, “it’s time for this unseemly circus to stop.”  It’s up to us lawyers.  Can we resist the lure of potential celebrity?  Or are ethics some archaic nicety to be enjoyed only by those who have already made it, and to be ignored by those who desperately need their 15 minutes of fame?

The Death of Bad Lawyer

He appeared in the blawgosphere suddenly, and made almost an immediate impact.  He wrote without fear because he was free, and those of us who read his words knew they were honest.  He was free because he was soon to go to jail.  He was a lawyer, but not for long.  He blew it.

There was nothing to stop him from telling his story, one that might serve to let other lawyers know that they could face the same fate.  He spelled it out without trying to color it to minimize his wrong. 


My professional conduct deviated from the standards of the ethical attorney in the maintenance of my IOLTA account;  and, in the reporting of income and payment of taxes.  I rationalized that I would be able to “catch-up and negotiate.”  This was delusional on my part.  I thought to myself that I was not stealing from my clients, I was just taking from my allocated attorney fees.  While technically true, the rules mean something—if in fact, I could not pay may bills, keep the phones turned on and pay the secretary without cheating then I really had no business holding myself out as being fit to practice law. 

As the secrets of my incapacity compounded I was sicker, and less able to practice.  After 15 years of sobriety I relapsed, seriously oblivious to the connections between my unethical and illegal conduct and sobriety.  I thought my relapse related to my father’s dying—I recognize now that my father’s dying and the crisis in my family was just an excuse to medicate my more profound disorganization and emotional disorders. I was sick.

In the very beginning, he was angry and cynical, still defensive about the system he was facing.  In time, denial was replaced with remorse.  He knew all along that he had no one to blame but himself, but the need for misery to have company is strong.  As he came to grips with reality, it didn’t change the stupidity, hypocrisy and deception around him, but didn’t justify his own failings. 

Then one day, it was time.  He said his good-byes and voluntarily surrendered. And the blog known as Bad Lawyer fell silent.

After serving his sentence, Bad Lawyer came back to tell about it, the inside story of life in the belly of the beast, and the outside story of the craziness of the law and its players from someone who knew and understood it, and had nothing to constrain him from telling it like it is.  It was good to have BL back, and since he had plenty of time on his hands after his release, he wrote up a storm.

I was fortunate to learn who Bad Lawyer is in real life, and he was kind enough to send me stories and commentary fairly regularly.  What he did wrong was neither particularly heinous or unusual, and it never played a role in my feelings about him.  He did his time and it was over.  He gave me the perspective of a man who had lived through the things that we, lawyers, only see from the safety of our side of the desk. 

I’ve known many lawyers who screwed up.  I will be the first to tell them they were wrong.  I will be the first to welcome them back. I believe in redemption.  I do not think that those of us who have never endured prosecution or serious challenge are so perfect that we can’t forgive and embrace the sinners.  We all know in our hearts that we could be better.  Only fools kid themselves.

After Bad Lawyers release, he remained one of my favorite blawgers.  Not only did he find interesting stories and issues to address, but he did so in a way that few in the blawgosphere do.  The social media thought leaders keep telling people to engage “authentically.”  No one was more authentic than Bad Lawyer. 

Having been around the blawgosphere for a while now, I’ve come to view it as largely destructive.  Too many lawyers spreading too much misinformation sprinkled with self-aggrandizing pap.  Some are too cynical.  Some aren’t cynical enough.  Some reveal that they’re not particularly bright, and most demonstrate a scary lack of grasp of the law.  There’s an awful lot of that, and the public’s ignorance of the law is furthered by lawyers’ ignorance of the law.

Very few have the guts to say things that are real for fear of offending someone, whether potential clients, their brethren or the powerful.  When they do, it’s the “approved” enemies, the ones who are universally despised on this side of the table.  Bad Lawyer was astute in his observations and owed no one allegiance.  He wasn’t fishing for clients or trying to make himself look more palatable.  There was no need for him to market himself, and no one’s feelings to be spared.  And yet he was mostly temperate in his commentary, unlike the lawyers with wild agendas molded from bizarre political beliefs.

Bad Lawyer announced the other day that he is done.  This time, it’s not because he was surrendering to serve his sentence, but because the time has come to bury Bad Lawyer. 

I liked “blawging” because it offered me a soapbox to try to be socially relevant despite my situation.  You should never doubt that the stories I posted about “bad” lawyers, judges, doctors, drivers, parents, idiots, and morons–these stories, were always about ME.  Likewise, I posted the occasional story about admirable persons in and out of the law, these were stories also about me, as well.  Or rather, I should say the stories were about–who I aspire to be by the grace of God. 

I have some other things, other projects, and a life with my family to live.  I’m now letting go of the “past” absolutely. 

It’s time for Bad Lawyer to die.  It’s time for the man behind Bad Lawyer to live again.

I hope that he will come back to the blawgosphere, though I don’t suspect he will do so for a while. If he does, it should be under a new name and without reference to his former life.  Maybe he will even write under his real name. If he does, his secret is safe and no mention will ever be made that he was once Bad Lawyer.

For the multitude of lawyers who have come to the blawgosphere to claim their fame and glory, the young ones who think their naive thoughts are worthy of recognition, the old lawyers who think their experienced thoughts can be spun into new clients, the amorphous lawyers who have bought into the idea that this is what lawyers should be doing even though they have nothing to say and offer muddled views of the law because they don’t care enough to write something thoughtful, or aren’t good enough to do so, learn from Bad Lawyer.

There aren’t many in the blawgosphere who provide real lessons in what it means to be a lawyer.  Bad Lawyer was one, and one of the best.  And now, Bad Lawyer is dead. Good-bye, Bad Lawyer.  Thank you.

The Fabulous Eve of Destruction

At 12:01 a.m., gay marriage became legal in New York. That’s it, the ballgame is over.  Whether you think it’s the most wonderful thing or the end of civilization no longer matters.  Marriage ceremonies began almost immediately, and from the clips shown this morning, they were most endearing.

The bible says homosexuality is an abomination?  So don’t let your inner gay come out.  That’s your call.  Nobody will force you to engage in gay love.  Can’t stand the sight of a couple of dudes kissing?  Shut your eyes.  They won’t mind. In fact, they won’t care at all, because they’re busy doing something else.

Notably, New York is the sixth state to legalize gay marriage, and the largest (because who really cares if gays get married in Vermont anyway).  Whether it’s the full faith and credit clause or the hard, cold reality that they live among us and they’re not going away, gay marriage is going to find its way into your neighborhood.  Whether two guys or gals, whether old or young, whether well dressed or looking kinda scruffy, they’re there.  Or at least they’re coming.  And they’re never going away.

If it’s the eve of destruction, then we’re doomed.  But it’s a fait accompli and anyone who takes issue with it better find a way to deal with it.  Stop acting like some schoolboy in fear of his sexuality and come to grips with the fact that there are a bunch of people who prefer to hold hands with people of the same gender.  Legal discrimination against homosexuality is now behind us, and it’s time for attitudes to keep up.

They’re queer.  They’re here.  They’re married.

Can The Internet Survive Another “Thing”?

When I saw that Kevin O’Keefe posted his first impressions of Google+ (or G+, as the cool kids call it) at Real Lawyer Have Blogs, I feared that I would be left behind as an early adopter and my Klout score would diminish, meaning that they would no longer send me stale, but free, snack foods.  The thought was oppressive.

Aside from it being the newest (and hence coolest) thing, Kevin wrote:


  • Google Plus generates lots of interaction and discussion, more so than possibly Twitter and Facebook. Look at this blog post of mine. Two comments on my blog. 10 comments on Google Plus. You want to be part of a dialogue with influencers and amplifiers, better still if it was your original insight  (blog post) that initiated this dialogue. Not only doesn’t it matter if the dialogue is some place other than your blog comments (Twitter, LinkedIn, Facebook, now Google Plus), but it’s better if the dialogue is someplace other than your blog. More people see the dialogue and have the opportunity to join in. Plus you are seen as someone who ‘comes out’ and joins the discussion, not someone who says, “Look at me and my blog, come here as I measure my success and worth by traffic to my blog and, in turn, my website.”

    • Then again, one man’s positive is another’s problem.  Being, at this stage, a fairly old school blawger and occasional twitterer, I’m at my limit of internet distractions.  I have a Facebook and LinkedIn account, but I never use them. When I write a blawg post, I hope that anyone having anything to add to the conversation will use the post’s comment section. 

    When twitter took hold, people would twit about my posts, meaning that they were both lost to posterity and separated from the post itself.  Someone reading the post might never see the comments, and the conversation was happening in different rooms among different people, never the twain to meet.  I hated it.

    Rather than bridge the gap, the internet keeps building new rooms with different people and different conversations.  For those people who want to spend every waking hour moving from room to room in search of something to prevent them from ever having face to face contact with real people again, this is good. 

    But consider this unintended point by Ex-Google employee Kirrily “Skud” Robert in reaction to the  Google+ mass deletion of accounts of those it deemed weren’t using “real names” as the deal required:


    The former Google employee that originally applauded Google Plus’ statements about real names had their account suspended. Kirrily “Skud” Robert writes in I’ve Been Suspended From Google+ :

    So today, I got off a plane this afternoon to find a pile of tweets, emails, and blog comments asking whether it was true that my Google+ account had been suspended. When I managed to get some wifi and check, it turned out that it had been.


    The part that caught my eyes was the “pile of tweets, emails and blog comments.”  He didn’t even mention Facebook.  And now we need another place to check as we get off a plane?  Seriously?

    There’s a great Toyota commercial about us old folks being anti-social that, aside from being hilarious, makes one heck of a point.



    How many twitter followers do you have?  How many people are in your “circle” on Google+?  How many ever get out of the house and hang out in a place that doesn’t have wifi?

    Whether Google+ is great, cool, whatever, isn’t the point, and as far as I can tell, won’t be the point.  The point is whether it’s going to replace twitter, or blogs, or Facebook, or whatever will be the new, shiny thing tomorrow, because it’s fine to spend a few minutes on social media, but this isn’t your life.  At least, not your real life.

    One of my continuing themes at SJ is that we are producing more lawyers than society can absorb.  And now we’re producing more social media forums than society can absorb, unless we’re prepare to forsake any IRL transactions and spend our days (and likely our nights) sitting in front of a computer screen “authentically engaging” with everyone else who has no life.  Is this really progress?

    So how is Google+?  Beats me. I’m on it and the first flurry of circle requests has slowed to a trickle, which either means that the early adopters have blown their wad or that new people on G+ have wised up and decided they don’t need the like of me in a circle.  I can’t say.  I can say, however, that it’s a bit confusing to me, bordering on pointless, and I’ve yet to make any use of the special features it tells me it offers.

    Bruce Carton invited me to “huddle” the other day via his mobile phone.  I had no clue how to “huddle” back; even if I did, I had no idea what I was supposed to do in a “huddle.”  I’ve tried to invite people to Google+, but it doesn’t seem to let me.  That may not be a reflection of the program, but me.  Somebody at Google may be saying, “don’t let that Greenfield guy invite people; he’ll increase the age of the room by at least a decade.”  I can appreciate that.

    Still, if Kevin is saying this is another great tool for lawyers, and it may be true from the tool perspective, I respond that we are awash in tools, but do lawyers really want to spend their day trolling social media forums in search of something or someone of interest?

    I don’t.  If it was up to me, one place would work just find.  Two is a bit of an annoyance, Four is too many, and I’m not going to do it.  Maybe you want to spend your day cruising from one to another in the hope that all your networking on the internet will do something for you that looking in a client’s or friend’s eye won’t, but like the old folks in the Toyota add, I have other things to do.

    And if you have something to say about this post (or any other post of mine) and decide to post it on twitter or Google+, why?

    Book Review: Nothing to Hide By Dan Solove

    Most of the books I review come to me via a publicist who asks whether I would be interested in reading and reviewing them.  Most of the time, I’m not.  But when Dan Solove, of Concurring Opinions, announced this his new book was out, Nothing to Hide, The False Tradeoff between Privacy and Security, I reached out for a review copy.

    Dan’s last book, The Future of Reputation, was foundational, schooling its readers on the dangers of putting every burp and smirk online, or worse still, having someone else do so.  It’s likely the only book by a lawprof I will ever make my children read.  With that high bar in mind, I dove into Nothing to Hide, the subject being almost as dear to me as it is to Dan. 

    The book is constructed in three parts, the first addressing the “myths” of the argument that invariably permeate discussion.  The most famous of these, that if a person has “nothing to hide,” then he won’t mind the police rummaging through his things, inspecting his internet usage or credit card receipts.  Dan takes apart the myths in a detailed, scholarly way, bit by bit. 

    While offering some snappy comebacks to the cop on the street’s question (culled from the comment section of CoOp), none of which is likely to impress the opposite sex at parties, he ultimately hits a deeper concept, that privacy isn’t limited to concealing some wrongdoing from the government, and our understanding of privacy is askew by this limitation. 

    Within this discussion, Dan use a few examples of how information in the wrong hands can produce erroneous and troubling conclusions.  Whether the examples apply to any individual, even the ones who spout “my life is an open book,” the Kafkaesque examples of The Trial kicks in:

    The harms are bureaucratic ones — indifference, error, abuse, frustration, and lack of transparency and accountability.

    For anyone who’s enjoyed the government’s facile conclusion, built on a handful of misinterpreted cues, that you’re up to no good (or engaging in a criminal conspiracy, as the case may be), you can appreciate Dan’s point.  If not, your day will come.

    This first section of Nothing to Hide, dealing with the sexier issues surrounding the arguments for the government’s usurpation of privacy rights, covers the points well, both on a surface level and below.  While it’s a bit on the wordy side, no doubt in the interest of thoroughness and precision, and lack the pizzazz of cool stories of internet intrigue that made Reputation so fascinating, it makes excellent points.  If the points were delivered with great punch, perhaps more provocative language (of the sort most academics eschew), it would be more effective for the ordinary person, who might cruise past the punchline without realizing it.

    The second section provides something of a history of the Fourth Amendment and its application.  From a lawyers’ perspective, it’s well-trodden turf, although most criminal defense lawyers will take issue with Dan’s understanding.  While I’m not nearly as cynical about the courts’ handling of search and seizure as some, I’m nearly off the charts from Dan, who reposes great trust in the good will and intentions of judges who manufactured exception after exception. 

    To a large extent, the purpose of this section is to explain the failure of Katz v. United States, which created the reasonable expectation of privacy test, to serve as a viable basis to protect our privacy rights.  While Dan clearly contends that it hasn’t worked out well, and has undermined the right to privacy, he blames the test rather than the judges who worked overtime circumventing the test.  While he may be right that Katz has overstayed its welcome, or should never have been invited at all, it’s difficult to place all the blame on Katz while ignoring the role of the courts in assuring that there would always be an exception to rule.

    While the first two sections make for interesting reads, it quickly becomes clear that the third section, where Dan sets out the way he sees privacy rights should be protected going forward, is the point of the book.  From the title, I didn’t see this coming.  When it did, it struck me that I’d been tricked into reading  Dan’s theory of  Fourth Amendment Pragmatism that had been debated before, even here.

    Settling in, this was an opportunity to get a better grasp of Dan’s argument, which up to then had eluded me.  To sum it up in a sentence, Dan contends that we would do well to throw away Katz’s “reasonable expectation of privacy” test in favor of a “problems of reasonable significance” test.  I read carefully.  I still don’t get it.

    On the one hand, it strikes me that Dan sees this as an opportunity revisit the whole of privacy protection without the baggage developed around Katz over the decades, and allow courts to develop robust protection of our privacy rights.  On the other hand, why Dan believes courts will be any more likely to protect rather than circumvent rights under his test remains unclear.  This likely stems from Dan’s faith in judges’ desire to protect and defend the Constitution, in contrast to my belief, for example, that judges want to make sure the bad guy goes to prison.

    This last section of the book might have offered a very provocative and interesting view of what the future might look like if we were able to move beyond failed Fourth Amendment jurisprudence, riddled with exceptions and misdirected in focus.  But it’s unlikely that any non-lawyer reader will have a firm understanding of what Dan’s got in mind.  Maybe lawyer readers who are smarter than this curmudgeon will get it.  If so, maybe you can explain it to me using small words, as I still can’t figure out why Dan argues that this will pan out better than Katz.

    Nothing to Hide has plenty of meat for those of us interested in the issue of privacy rights and how they’ve been undermined and abused for the benefit of the government.  If you’ve got a yearning for a deeper understanding of the issues, the problems and the law, it’s a worthy effort.  Make no mistake that it’s light reading, or speckled with anecdotes that will make your hair stand on end. 

    It’s a scholarly work, stretched out to book length and makes its points with subtlety and nuance, maybe more softly than most lawyers would like or appreciate.  Still, if you have a sincere interest in one of the most important subjects of our day, particularly as the TSA scopes and gropes in the interest of protecting us from whatever and new technology virtually assures that no aspect of our lives will be secure from government databases and inspection, this is a book you want to read.

    To Prosecute, To Promote

    No one can seriously doubt that a parent’s unintended act, a mistake by all accounts, that results in the tragic death of his child is far greater punishment than any prison cell.  So this story from  St. Louis Today questions why prosecutors add “insult to injury.”

    In 2007, his 3-year-old son, Joshua, found a loaded pistol left in a nightstand and shot himself in the chest.

    Lesnick, a former federal police officer and licensed firearms instructor, pleaded no contest to charges of child endangerment and served a year’s probation. So did his wife, who was at their Wisconsin home when Joshua found the gun.

    That was the penalty meted out by the criminal justice system. But Lesnick said it doesn’t come close to matching his real punishment.

    “I have to look at my son’s killer in the mirror every day,” he said. “I am 100 percent responsible for my son’s death. That’s a heavy, heavy burden.”

    Of course Lesnick should have known better.  He was careless, no, reckless, in leaving his gun within reach of his son.  And he will be punished for it every day of his life.  What does prosecution add to the mix?  Piling on?  Society’s need to make someone pay whenever a child is killed?

    This story came to light from a post by Doug Berman at Sentencing Law & Policy.

    Ever the utilitarian thinker, my instinct in these sorts of cases is to bring a criminal charge in order to help “spread the word” as Lesnick puts it.  Absent proof of any malice, I would not expect a parent or guardian to get a severe sentence for this kind of accidental crime, and yet the very decision to prosecute will help raise awareness about the risk of these sorts of tragedies.  I certainly understand a retribributivist instinct that the parents in these of cases have “already been punished enough,” but that notion only leads me to want to ensure the criminal sanction is not too severe after we get the utilitarian benefits of going forward with an initial prosecution.

    Of the legitimate bases for sentencing, “spreading the word” comes closest to general deterrence, though it doesn’t fit very well.  General deterrence is the notion that by letting others know of the punishment for engaging in particular conduct, the price that will be paid, they will decide not to do so.  But we’re not talking about intentional conduct here, a volitional choice.

    We’re taking about carelessness, even if so bad as to rise to recklessness.  It the absence of thought, or care, not an affirmative decision based on an assessment of penalty.  If that was the case, certainly the death of a beloved child would far exceed any threat of other punishment as a reason to be more careful.

    Rather, it’s the spread of information that tragedies do occur when carelessness happens, the purpose of which is to remind others to be careful.  One would suspect that people who possess guns in houses with children would already be acutely aware of the risks, but then this issue extends beyond the facts of the case of Michael Lesnick.

    The bigger question is whether prosecution should be used as a “utilitarian” method to serve purposes unrelated to individual wrongs.  I think not.  More importantly, I think this present an extraordinarily dangerous abuse of the criminal justice system to vindicate interests that really have nothing to do with the defendant or the conduct, but rather “use” the defendant for unrelated and completely improper purposes.

    As is pointed out in a comment to Doug’s post, the fact of the tragedy happening will likely be report by the media anyway (it being incapable of passing up a story about a dead child), and the purpose of “spreading the word” is served without prosecution.

    Conceding this, Doug argues that criminal prosecutions will cause the media to harp on the story, thus spreading the word farther, longer and louder.  This is probably accurate as well.  But it doesn’t bear at all on the issue of whether “spreading the word” is a legitimate reason to prosecute at all.

    Radley Balko posted about Raquel Nelson on Huff Po, who was prosecuted and convicted for jaywalking with her children, one of whom was killed when struck by a car.

    Nelson buried and grieved for her son. But on May 14, the Atlanta Journal-Constitution ran a long story under the headline, “Jaywalkers take deadly risks.” The article mentioned Nelson and her son, pointing out that she hadn’t been charged with any crime. Three days later, the Georgia Solicitor General’s office charged Nelson with the three misdemeanors.

    Nelson was convicted last week, and she’ll be sentenced on July 26.

    Is this the sort of prosecution that we should desire, encourage, so that mothers become aware that jaywalking can be dangerous?  It’s certainly something that anyone crossing a street should consider, especially with children in tow.

    But Raquel Nelson lost her 4-year-old son.  Was society’s need to hear the story sufficient to justify putting this grieving mother through a prosecution?  Was her walking across the street with her kids, despite the absence of a marked cross-walk, really so blameworthy that this had to follow?

    Foremost in the decision to wield that incredibly blunt instrument, to prosecute, is the purpose served for the individual.  If there is either too little blameworthy conduct, or too little purpose served by obtaining a conviction, then no one should wield the bludgeon just because it’s there and they can.  And no one should ever do so to serve some disconnected societal purpose for which the criminal law was never intended.

    It seems these days that there’s an interest group dedicated to eradicating any and every threat of harm that could befall a child.  To those who believe that their concern demands action, the idea that someone must be punished is an article of faith, and the idea that the world must know of the horror is overwhelmingly obvious and necessary.  Criminal law will then become the captive of the latest craze or concern, a handy weapon to combat every potential fear and threat at the expense of some poor, grieving parent.

    Are we ready to sacrifice the individual, already suffering far more than any punishment the system could impose for the terrible offense of making a mistake, for the good of “spreading the word” and maybe saving another child?  That’s not the way the system is supposed to operate, but it seems to be the trend we’re facing.

    Just pray you never make a mistake.

    Avvo’s Turn for the Worst

    When Avvo first came on the scene, its claim was to assist the consumers of legal services by providing ratings for lawyers, thus aiding intelligent decision-making and enlightening the legal consumer community.  The beef, at the time, was whether their rating system was valid.

    As often happens with start-up high tech companies, there’s been a quiet shift in the business model.  The key to internet businesses that don’t sell a product is advertising, and the key to advertising is eyeballs.  It wasn’t too long before Avvo went into the free lawyer answer business to draw in people who wanted answers to their quasi-legal questions, but were too cheap to pay for a lawyer. 

    It didn’t seem to matter that the answers were crap (as were the questions), as this was just a side-line, a come-on.  Avvo was a lawyer (and later doctor) rating service.  That was its claim to fame, its raison d’être.  More importantly, that was Avvo rationale for gaining access to lists of lawyers nationwide, and to overcome the issues concerning its rating service being used by lawyers to tout themselves.

    When Avvo brought on its new VP of Marketing, Leigh McMillan, it gave me a reason to take a stroll over to Avvo and see what was happening.

    SEATTLE, WA – July 21, 2011 – Avvo (www.avvo.com) the largest legal- and health-related Q&A website, where consumers get their questions answered by a community of rated lawyers and doctors,  welcomes Leigh McMillan as the company’s first Vice President of Marketing. McMillan will oversee Avvo’s marketing and business unit management, reporting to founder and CEO Mark Britton.

    Whoa.  When did Avvo go from being a lawyer rating service to “the largest legal-related Q&A website?”  Not that Avvo Answers isn’t a part of the whole, or that Avvo’s not the largest (I couldn’t say, but wouldn’t be at all surprised that Avvo is the largest), but when did its focus shift from lawyer ratings, the justification for its existence, to a dubious (the words “utterly worthless” may be overstating the problem, though not by much) scheme to make the world more legally ignorant than when it began?

    When Avvo opened its doors, I had a  long talk with one of its co-founders, Paul Bloom, who has since moved on to other ventures.  Since then, I spent time with CEO Mark Britton, where we argued over various foodstuffs the merits of Avvo ratings and its value to consumers.  I like Mark and Paul, and all the other Avvo guys as well, despite whatever misgivings I have about the service.  But at no time did I think of Avvo’s hallmark as being other than its lawyer ratings.  It appears that I’ve missed the shift.

    So is Avvo a lawyer rating service that has its unbearably bad Avvo Answers as a loss-leader?  From the press release, no.  It’s not a matter of the tail wagging the dog, but that the tail is the dog.  Avvo’s primary function is to promote stupid answers to stupid questions.

    In another press release, Avvo talks about its “weed-like growth.”  Weed-like indeed.  The internet has inundated society with monumentally poor legal thought and advice, leaving the public worse for having made the effort.  Avvo has chosen to dedicate itself to the creep of ignorance rather than to contribute to a better, more accurate, understanding of the law.

    To the extent that Avvo’s claim to legitimacy relied upon the merit of its lawyer ratings, it’s given that away.  Avvo could have been part of the solution.  Instead, it’s taken the worst element of its business model and elevated it to its primary function.  No wonder Avvo’s growing like a weed.  Too bad it didn’t choose to bloom like a flower.

    A Split of Authority

    In furtherance of its expose of law schools, the New York Times’  Room for Debate offers a diversity of views on the question, The Case Against Law School, Should the standard three years of law school, followed by the bar exam, be the only path to a legal career?

    The cast of characters:



    Debaters



    Yes, that’s our  David Lat in there, looking like he’s about to do his haftorah.

    I would like to tell you how fascinating the debate is.  I really would, but I can’t.  It’s the same old argument, with lawprofs certain of their merit of their paychecks, while anyone not looking to publish in law reviews believing that law schools are (1) a massive waste of money, (2) ineffective at training students to become lawyers, and (3) uncontrollable. 

    Bryan Garner, the editor in chief of Black’s Law Dictionary, says this:



    Reforming legal education – an urgent societal need – is a glacial process. And the glacier has been flowing the wrong way. Entrenched pedagogical mediocrity infects even the best law schools, and almost all the schools simply mimic the anemic methods of the schools just above them in the rankings. But the key to better health has little to do with changing the time requirement: three years is about right.




    The problem is not that students are spending too much time in law school. It’s that they are not mastering essential skills.

    The biggest failure at most law schools is the dearth of seriously good skills courses, especially training in legal writing. Law schools generally reward scholarship, not teaching excellence, and there is a built-in bias against one-on-one teacher-student time. Too often the only feedback a student gets from a professor is a single letter grade after the final exam. Now add this: of all law-school courses, legal writing is both the single most time-intensive subject and the least respected.


    If Bryan, something of a hybrid between the scholar and lawyer, says law schools fail, that’s an indictment.

    Lat, on the other hand,  opines that the answer is to get out of Dodge and bring back apprenticeships:



    The core of the legal curriculum is covered in the first year of law school. One could easily imagine law school, in terms of formal classroom instruction, lasting two years instead of three and costing two-thirds as much.


    After two years, graduates could start working as apprentices for practicing lawyers and being paid, albeit modestly, perhaps like paralegals or medical residents. The bar exam could be administered at the end of an apprenticeship, or in multiple parts at different points in the process, like the medical board exam. Successful completion of an apprenticeship and passage of the bar exam would qualify an individual as a lawyer.


    Of course, the question remains whether under an apprenticeship regime, Lat would have ever become a lawyer, since obsessions with the undergarments of Article III judges doesn’t fit well with most practice niches.  On the other hand, given Lat’s enormous popularity (not to mention credibility, as the Times ask him to debate and didn’t even give me a jingle), maybe far more people are fascinated by judicial hotties than I am.

    On the flip side, consider the position taken by Linda Greene, the Evjue-Bascom Professor of Law at the University of Wisconsin, Madison.



    My own decision to attend law school was based in part upon my perception, still shared by those who rush our doors, that a legal education provides an unparalleled opportunity to understand the intersection of private and public power, to explore the rationale for the organization of human society and to participate more knowledgeably and effectively in every aspect of human endeavor. A fine legal education provides an opportunity both to grasp the current arrangement of our legal order and to understand laws’ limitations and shortcomings.


    That education also deals with the relationship between law and society as well as the manner in which law is both used and transformed in action. Whether the questions involve constitutional protection for undocumented children or cloning or climate measures or the parameters of humanitarian intervention or the ownership of the resources beyond our gravitational field, the best in legal education prepares its graduates to participate in the discourse and arrangements necessary to such complex concerns. It is true that the cost of this quality education, all in, may exceed $200,000. The value of a new generation of law graduates prepared to take on these challenges: Priceless.


    Now doesn’t that sound wonderful?  If only it meant you could actually practice law for your $200,000.