Some years back, a lawyer in my building became a big hero within the black community and, not surprisingly, was deluged with clients seeking his representation.  He was a pretty good lawyer, one that I admired, but he made a fatal mistake.  He took on these cases, accepted retainers and made a bundle.  He was flying high.

But one day the bill came.  When a lawyer takes on a case and gets paid up front, there’s a warm feeling. It goes away, however, when you have to do the work for which you’ve been paid.  People believe in you. People are relying on you. The initial smiles and handshakes give way to hard work.  When you’ve shaken too many hands, smiled at too many new clients and taken in a bundle, there aren’t enough hours in the day to fulfill your end of the bargain. This lawyer couldn’t do the work; there just wasn’t enough time. He was disbarred.  The mighty hero fell from grace.

At My Shingle, Carolyn Elefant asks whether a new solo, straight out of school, can establish a practice that earns him $160,000, as claimed by North Carolina criminal defense lawyer Damon Cheston.

For starters, based on my own rough calculations, and Chetson’s own discussions here, I’m fairly sure that his numbers are indeed plausible (some commenters suspected puffery). According to Chetson’s website, he charges between $2000 and $3500 for most DUIs, $1000 to $3500 for misdemeanors and felonies start at $2000 – and he says here that his website grossed him $200,000 in clients. At $2500 per case, that’s around 80 cases per year – or about seven per month. Those are completely reasonable numbers if a solo is leveraging the web.

But the big question is….can Chetson’s success be replicated by other solos?

While Carolyn is dubious that Cheston’s “success” reflects something that any new solo can accomplish, noting some structural benefits peculiar to Cheston’s situation, but in her crunching numbers, misses the fundamentals of the economics of the practice of law.

The high volume, low price route has always offered a quick way to produce revenues, and there have always been lawyers who chose that route as their business model.  This isn’t an invention of the internet, though it’s now being taught by those who are extremely dangerous to the legal profession as not merely a mainstream option, but as the cool, awesome tech savvy model for young lawyers to find wealth and success in the law.

Putting aside the critical distinction between revenues and profits, a concept that isn’t adequately recognized in Carolyn’s discussion, there is no mention of the cost to be paid by the high volume lawyer.  At some point, he actually has to do the work for which he’s been paid.  There’s the rub.  There’s the aspect universally ignored by the protagonists of internet marketing.  What about the clients?

Carolyn arrives at an average of 80 new clients a year, or 7 new clients a month, which is certainly a doable number provided the fees are below what other lawyers charge and the website reflects claims that the new lawyer, new solo, is just as competent as someone who knows what they’re doing.  Of course, this usually entails a liberal use of puffery and the omission of such unpleasant details as year of admission to the bar or length of employment in one’s last job.

So what’s not to like?

No lawyer can competently handle this sort of volume.  While some cases go quickly into the night, others don’t.  Still others require investigation, research, motions and ultimately trial.  No one can try 20 cases a year, no less 80.  And no new lawyer, straight out of law school, can try any case. 

This isn’t to say new lawyers care nothing about clients, or don’t want to be good, competent lawyers.  But it takes some time and experience to get the chops.  They may try their hardest, but it’s not that easy. They may believe their doing great, but their self-assessment can’t be trusted.  It’s not easy being a good lawyer.  It’s just not.

In response to my comment to the post, Carolyn raises an interesting point:

At the same time, there seems to be a need for low cost service. This guy is filling a void and because his marketing is cheap the volume is a bit more viable. What is the solution to clients who don’t have cash? More PD funding I imagine or taking out loans. But what if people can’t pay? Is this model lesser of 2 evils or inherently bad? I am not CDL so I can’t say. We’ve seen what happens when puffery goes too far in murder case but is example of the worst but is there middle ground?

Would it be effective if a new lawyer’s website said:

I charge lower fees than other lawyers because I don’t have the experience they have.  At the rates I charge, I can’t investigate your case and may not have the time to try it, should that be what you want.  My rates are based on the assumption that you will plead guilty, whether you are guilty or not.

The plea offers made to my clients aren’t as good as those offered to other lawyers’ clients because the prosecutors know I can’t try cases and have no choice but to take whatever they offer.  I won’t be able to spend time discussing your case with you because I have too many clients to deal with. I won’t be able to explain why your defense will be inadequate because it would embarrass me to admit that I’m just a warm body standing next to you in court, trying to do my best with my very limited knowledge, experience and time.

But then, I charge less than other lawyers.  If that’s what you’re looking for, then I’m your man.

Is this the lesser of two evils?  No.  This isn’t lawyering.  Lawyers have a duty to provide zealous representation to their clients, not to charge less and provide less.  But the fact is that no new lawyer’s website says this.  As we all know, the words “experienced and passionate” or “tough and aggressive” appear instead. 

We also know these things aren’t true, and so clients who pay low fees are deceived into believing they are paying less but receiving the same quality of representation they would get from a lawyer who is competent and capable of representing them properly.  We also know that it’s unethical to deceive clients, and this lack of truth isn’t dissipated by the cheers of internet marketing sycophants.

So can a new lawyer, a new solo, bring in revenues of $160,000 a year?  Sure.  Maybe even more.  The question is whether they can afford the cost of doing so.  Collecting money is easy. Representing clients is hard.  There can be no discussion that doesn’t include both sides of the equation.

Nothing to do with gay marriage, which was approved by the New York State Legislature in an inexplicable act of sanity and is  now the law in the State of New York.  Twelve inches is the length to which the police in Rochester went to prove conclusively that they cannot be trusted with the authority vested in them.

Emily Goode stood on her front lawn and videotaped an car stop in front of her home.   The video has since become well know, reflecting police over reaction, impropriety and just plain absurdity as an officer explained that he felt threatened by her being “behind him” on her property filming the incident.  The upshot was the driver stopped was let go, while Goode was arrested for obstruction of justice.

What is most disturbing is that the officer is clearly manufacturing a reason to stop her from videotaping and arresting her. They clearly can see that she is not armed and she responds clearly to their statements, including saying that she will step back a foot as demanded by the officers. From the fact of it, it appears an abusive arrest and another case of punishing citizens for filming police — which is not a crime.

After the woman correctly states that she has a right to videotape the arrest. The officer then thinks about it and says “I don’t feel safe with you standing behind me, so I’m going to ask you to go into your house.” The police officer is identified on some sites as Officer Mario Masic.

There seems little point in arguing the merit of laws which, at least arguably, preclude citizens from filming police in the public performance of their “duty” when the reality hits home that this has nothing to do with law, but with police not wanting anyone documenting them.  It gets in the way of their telling a good story.  And so a teary Emily ended up the one taken away in cuffs from her own front lawn.

A public meeting was  held of IndyMedia to discuss the Goode arrest, and the Rochester cops, not satisfied with P.O. Masic’s arrest, decided to show up and as the entertainment. 

The video below is from a Rochester, New York, neighborhood meeting in support of Emily Good, the woman arrested for videotaping a traffic stop from her front yard. So Rochester police sent four squad cars to ticket the cars of meeting attendees who parked more than 12 inches from the curb. Yes, they even brought a ruler.

That’s some staggering vindictiveness, officers.

Staggering?  It seems more along the lines of pathological pettiness to me, the sort of stuff that sufficiently annoys people while alerting others that these are men who can only dream of twelve inches.  No one will hurt, but plenty will have the opportunity to see that our boys in blue are, indeed, just boys.  Boys with guns and power beyond their ability to exercise it with the necessary discretion.

 

One of the ongoing themes of police misconduct is that people will ignore it, excuse it, rationalize it, until it either affects them or becomes so painfully clear that it can no longer be pushed aside.  The original video, aside from Emily Goode’s unfortunately emotional reaction to the abuse of authority by Masic, provides a very clear image of how the cops just make up whatever suits their whims.  The only rule that matters is what they, in their fertile imagination, say.

But that the Rochester police chose to double down by twelve inches takes a fragrantly bad act by Masic and spreads it around, smearing a force, in way that no commentator’s words ever could.  The claim that they received citizen complaints about people parking more than 12 inches from the curb is laughable.

The best part of the video is when the officer pulls out his 12 inch ruler.  Order is restored to Rochester, and a good laugh was had by all.  You see, the entertainment that day was clowns.

In another 5-4 decision, though borne of strange bedfellows, the Supreme Court has reversed in  Bullcoming v. New Mexico and held that the lab report of the defendant’s blood alcohol content was testimonial, and therefore requiring an actual, living, witness with knowledge of its creating to take the stand before the report could be admitted.  And so the Melendez-Diaz line of confrontation clause decisions isn’t dead yet.

The four justice dissent, however, raises collateral issues that reflect the court’s adoration of anything that bears the scent of science.

In these circumstances, requiring the State to call the technician who filled out a form and recorded the results of a test is a hollow formality. The defense remains free to challenge any and all forensic evidence. It may call and examine the technician who performed a test. And it may call other expert witnesses to explain that tests are not always reliable or that the technician might have made a mistake. The jury can then decide whether to credit the test, as it did here. The States, furthermore, can assess the progress of scientific testing and enact or adopt statutes and rules to ensure that only reliable evidence is admitted. Rejecting these commonsense arguments and the concept that reliability is a legitimate concern, the Court today takes a different course. It once more assumes for itself a central role in mandating detailed evidentiary rules, thereby extending and confirming Melendez-Diaz’s “vast potential to disrupt criminal procedures.”

The reality, as if brutally well-known by anyone who has confronted a basic and widely accepted scientific test in court, is that its essentially impossible to dispute it.  Collateral attacks aren’t permitted, a point that eludes normal, thoughtful people but remains the rule nonetheless.  Direct attacks are essentially impossible, as the truth is that even the live witness, the technician or chemist who performed the test, has no memory of any particular one, doing hundreds that all look alike.  And if they did it wrong, fudged the results or even lied about the tests in their entirety, it’s not like they’re going to admit it.

The majority upholds the confrontation clause as a matter of constitutional principle, despite the inconvenience it causes in convicting a defendant.  The Constitution says that a defendant is entitled to confront a witness against him, and so it must be.

The dissent sees it as a waste of time and resources, one less technician running tests to be used to prosecute criminals and one more witness on the stand who will recite the liturgy of courtroom conviction science.  Do we really need to waste a state employee’s time this way?

Is the dissent aware of police crime labs whose output is so tainted and unreliable as to require the shuttering of the lab?  Let’s assume they are.  Are they aware of  the report of the National Academy of Science?  Probably.  So why are they fighting the confrontation of scientific evidence, knowing that it’s sacred reliability is hardly a given?

The failing of science in the courtroom is a hugely troubling problem.  It’s unlikely that the dissent is endorsing bad, unreliable evidence.  It’s not the love of junk science.  Rather, it’s the recognition that this scientific evidence has become the foundation of much of criminal law, the conclusive method of obtaining convictions for generations.  To think anything less of it is to acknowledge that the system has been convicting people, locking them away, for decades without valid proof.  It is an admission of abject failure.

In a sense, the dissent makes an excellent point when it speaks to the formalistic approach taken by the majority, giving the appearance of fairness by virtue of confrontation when the fact remains that, aside from the outlier case where the tech completely blows his testimony and gets caught red handed falsifying the test, the testimony is so utterly routine and banal as to be hardly worth the time to listen to it. 

If the cross-examination of the testing technician, or perhaps his supervisor if it turns out over time that a few steps away from the machine is close enough for testimony, accomplishes nothing, then what the heck are we doing it for?

There are two reasons.  First, because there are those outlier cases where a technician’s testimony goes south, and somehow he admits under oath that knows nothing about how to handle, calibrate, work the magical box.  Every once in a while, a witness from the lab tells the truth.  It may not offer much systemic comfort, but it means an awful lot to the guy in the dock at that moment.  The Constitution protects his rights, not just those of some amorphous majority of defendants.

The second reason is that lines must be drawn when it comes to confrontation, as is expressly protected by the Sixth Amendment.  As the rules of evidence demonstrated over the years, when step by step testimonial evidence was taken off the list requiring a live witness because courts found it needlessly inconvenient and sufficiently reliable through rhetorical argument to just get it in and done, it was all too easy to go with the flow when it came to the admission of evidence.  Evidence grows increasingly routine as it’s admitted in case after case, until we forget all the reasons why it may be less than accurate, or maybe even deliberately false.  It’s probably fine.  It’s probably valid.  And that’s good enough not to be bothered challenging it anymore.

This cannot happen, and the majority, by drawing a somewhat bright line despite the very practical arguments of the dissent, seeks to hold the line.

It’s really all too easy to go with the probabilities, that trials will take the common path, that the evidence upon which the prosecution relies will be admitted, suffice to provide conclusive scientific proof that the defendant is guilty, and the jury will convict.  There are times in every trial lawyer’s life that he wonders, “why do I bother?”  The answer, of course, is clear.  We have no choice to do otherwise.

The dissent owns the practical side of the argument, and in the vast majority of cases will be proven correct that this is just another waste of time in the name of formalism.  But without a doctrinaire belief that there must be lines drawn that preserve the minimal, often futile, safeguards like the Confrontation Clause, we might as well just ship defendants straight from arrest to prison, as there will be nothing to stand in the way of conviction.  And this bizarre amalgamation of Supreme Court justices that comprise the majority say they aren’t going to let that happen. So the confrontation clause lives for another day, and the science of conviction will cost the state the live testimony of an actual witness.

It may not be much, but it’s better than nothing.

Apparently, the genre of lawyer shows on television is not yet dead, as TNT has Mark Paul Gosselaar, formerly of David Feige’s Lowering the Bar, in a title role in Franklin & Bash.  Don’t ask me what I think of the show, as I haven’t seen it, but given the influence pop culture has on public perception of reality, it was worth a quick look.

Gosselaar, who played a public defender with a heart of gold on his last gig, was interviewed about his new role, and offered this insight :

Q) You’ve played lawyers in the past, but I wondered what, if anything, you did to prepare for this role?

A) I got a tan. That’s basically it. You know, I mean, I – you know, I’d had my legal fill when I did Raising the Bar. Thankfully, you know, I was able to go with David Feige, who was the creator of that show, and my character was loosely based on him. You know, I went with him and was an intern at the Bronx Defenders for about a week and sort of got my legal, you know, insight during that week, and for the last two seasons. So no, there wasn’t much that I had to question. But if I did have a question, one of our producers and writers, one of our head writers, Bill Chais we as defense attorney and a lot of the stories that we deal with on the show are from his background. So, if we ever have questions we have people that we can go to, and that’s always important. And well, I think we’re pretty true to – I mean obviously it’s television, you take some liberties, but I think we’re pretty true to staying true to the sort of legal, call it, the legal frame.

I hope James “Whitey” Bulger calls me.  Now that the feds have nabbed him, he’s in play, and I want him.  So what if he’s in LA, soon to be returned to Boston, and I’m not. I still want him. 

Bulger is wanted in connection with 19 murders. He went on the lam after he was tipped off in 1994 that he was about to be indicted for his alleged role in the killings. Now 81, Bulger was the inspiration for a character in the movie “The Departed,” which starred Jack Nicholson and Matt Damon. (It doesn’t take a leap of imagination to posit that a second movie involving Bulger could be in the offing.)

Other than Dillinger and the Dapper Don, Whitey is the embodiment of the outlaw.  On the run for almost two decades, when his bud’s inside the FBI tipped him off (payback, you know), and now closing in on the bitter edge of middle age, Whitey is the stuff of movies.  So what if he was a brutal killer.  He has that romantic crime boss thing going.  It would be a shame to waste it.

Whitey knows he’s never coming out alive.  There’s no point in parsing the details of the case, hoping for some boneheaded mistake that will free the former number 2 on the FBI’s most wanted (and most embarrassing) list.  Nobody is letting Whitey have half a chance.  And nobody knows this better than Whitey.  You don’t stay on the lam for that long without being a smart guy.

So this is prime for Plan B (no, not that Plan B, but my Plan .  His days running, killing, drug dealing, hanging with his woman, done.  At 81, he would be lucky to make it to trial intact, as things go wrong at that age when you spend time in the hole.

The only thing left is his legacy.  Forget Jack Nicholson, and that creepy expression that makes you mutter “redrum.”  I’m thinking someone young and virile, charming and romantic.  Trying to pretend it didn’t happen would only diminish the brand, when the time is ripe for broaden the smile, admit it all and be proud of being the last mobster.

Whitey needs a lawyer, but more than a lawyer, he needs an agent, a publicist and a dental hygienist.  A beautiful smile works wonders.

But not even a beautiful smile is going get Whitey off.  His legacy is all he has left.  He might as well put all his effort into the best movie possible.

Call me, Whitey.  I know the perfect hygienist to give you the brightest smile.

As  Brian Tannebaum twitted it with his typical aplomb, it seemed only right to take a look.  Another  cheerleading post designed to capture the fascination of the unemployed young lawyers who have little to do but seek comfort wherever they could find it. 

But a part of the story caught my eye, about a former Cardozo grad who, according to the story, made good.

For Rachel Rodgers, 29, technology is also central to her business model.

The 2009 Cardozo School of Law graduate spent a year clerking for a judge and then decided to start her own firm while working a part-time job at a law firm. She was laid off after they ran out of work for her to do, but her unemployment gave her the push she needed to dedicate more time and effort to building her practice.

By working from her home in Phoenix, Ariz., and using her website as her storefront, she manages to keep overhead costs less than $500 a month. Her virtual office allows clients to log into her website and, like a bank’s secure online system, send information back and forth between her clients.

Rodgers credits her success to the confidence she gained from the clerkship and to Solo Practice University, a subscription-based website founded in 2009 that offers video, written and audio tutorials for prospective or current solo practitioners.

Prior to forming her law practice, Rachel had various professional experiences in both the private law and public law sectors, where she handled corporate, criminal, family, real estate and small business matters. Rachel has developed expertise in various areas of alternative dispute resolution including negotiation, mediation and arbitration. Rachel has held judicial clerkships with both New York and New Jersey judges and has worked for federal district court handling cases referred to mediation in the alternative dispute resolution office. Prior to law school, Rachel worked for non-profits in New York, at a premier lobbying firm in Washington, D.C. and on Capitol Hill in the Senate office of Hillary Rodham Clinton.

That’s an awful lot of accomplishment for someone who graduated law school in 2009. Maybe even too much.  But what about the person?

Rachel comes from a family of entrepreneurs which is why she is passionate about helping people start and grow their own businesses. Due to growing up in the melting pot of New York City, Rachel enjoys learning about other parts of the world. She has traveled to Barbados, Ecuador, France, Hong Kong, Nigeria, Thailand and the United Kingdom to do volunteer work, to study and, yes, sometimes to just be a tourist. Rachel enjoys hanging out in bookstores, blogging (check out her blog  here), cooking, drinking East African coffee and watching the Jets play.

Aside from her misguided enjoyment of the Jets, she sounds like a lovely young lady. But does that qualify her to guide lawyers to success?  Apparently so.

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I am contacted every week by law students and lawyers who are struggling due to a tough job market and are wondering how they’ll pay off their loans, practice the type of law they always hoped to and have the type of lifestyle they always wanted. I have spent the last two years researching, planning and then building my own unique law practice and have been able to bring it to a place of profitability while also meeting my lifestyle needs. I believe that you can do the same.

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You can build the law practice of your dreams and I can help! I provide consulting sessions for lawyer-entrepreneurs wanting to set up their own innovative, tech-savvy law practices. For many lawyers (especially recent law grads), entrepreneurship is the only way that they will be able to practice law and do so in a way that fits their lifestyle and philosophy. I understand this dilemma as I am also a recent law grad. I will help you develop a strategy and actionable plan to get your solo practice off the ground.

It may be pocket change to you, but it’s enough to keep a poor man in jail.  Bail is one of those dirty little secrets of the system, especially on the lowest end of the spectrum for trivial offenses.  A disheveled guy walks up to the table, his rap sheet with a few prior trivial charges and a kid prosecutor arguing that nothing short of $10,000 will secure his appearance in court.

There is no family in the courtroom.  He’s got no job.  His address is different on each arrest, and may even be a shelter that changes from month to month.  On paper, he’s a lousy bet, and there’s little he can promise that will bring much comfort that he’s a trustworthy sort of fellow.  So the judge, with almost nothing to work on, mumbles a pro forma $500 or $1000 and sends him back to the bench.

And the jails are full of defendants who will sit for months, maybe even a year, because they can’t make bail.

Is it really necessary to keep this poor guy, whose life on the street tends to bring him onto the cops’ radar on a regular basis, behind bars?  Before, the answer would have likely been, “who knows?”  Now, we have an answer.

The Bronx Freedom Fund, a pilot program in the Bronx, is a charitable endeavor bailing out the poor and giving them a chance to make good on that whispered promise that if they’re let out, they’ll be back.

The Bronx Freedom Fund is a revolutionary program designed to help poor Bronx residents avoid the costs of short jail sentences. We work with clients and families represented by The Bronx Defenders, a holistic public defenders office in the South Bronx. Our fund makes loans to family and community members so that they can post bail for their loved ones. Defendants assisted by the bail fund are connected with services and support for the duration of their cases, ensuring that they not only meet their court obligations but also get assistance to stabilize their lives in the long term. 

Since we opened in late 2007, 93% of the defendants assisted by our fund returned to make all of their court appearances, a compliance rate higher than those defendants released outright by judges. In addition, more than 50% of time, their cases were dismissed or resulted in a non-criminal disposition and not a single person released with the help of our fund received a jail sentence. Fighting from a position of freedom matters. 

“For far too long, the poorest of the poor have been held in jail without a conviction for any crime because they couldn’t afford even small amounts of bail,” said David Feige of the Bronx Freedom Fund. “Allowing charitable organizations like the Bronx Freedom Fund to post that bail is a giant step towards evening the scales and recognizing that pretrial justice shouldn’t be about the size of your wallet.” 

“We thank and congratulate Senator Rivera for his tremendous leadership on legislation whose positive impact will be felt not only by thousands of Bronx residents but throughout New York State,” said Robin Steinberg, Executive Director, The Bronx Defenders. 

This is a huge step forward in making the system a little bit less unfair toward the poor, who endure a hugely disproportionate amount of police “attention” and suffer for it in ways that are, and always have been, outrageous.

Not only does this open the door to the formation of charitable organizations throughout New York to posting bail on behalf of the poor, getting them out of pre-conviction punishment that’s often longer and more harsh than anything they would suffer by way of sentence, but it gives them a fighting chance to defend where before there was none.  Whether other organizations will come forward and do what Robin and David have done has yet to be seen, but hopefully others will come forward to give the poor a chance.

Of course, with the numbers reflected by the Bronx Freedom Fund, there’s a possibility that another group, a very small group, could make an even bigger difference without requiring the formation of charities and infusion of money. 

Judges, given the 93% return rate and 50% dismissal/reduction rate, are you really putting anything at risk by releasing poor people on their own recogizance?  Are those $500 bails truly needed, or just another way to make the lives of the poor that much more miserable?  Did you really put on the robe to be another person beating the poor into submission?  Cut them loose.  There’s just no reason to jail them over chump change.

H/T Dan Arshack

On May 5th, former Marine  Jose Guerena was killed.  On June 18th, 69-year-old  William Cooper was killed. They were not the first. They won’t be the last. They share some common themes.

1. A rat told police they, or someone at the same address, or someone at a similar or nearby address, was involved with drugs.
2. Police use this information to obtain a search warrant.
3. SWAT executes the warrant.
4. The warrant is executed with a “shock and awe” approach, whether the warrant is no-knock or knock and announce.
5. The resident of the premises being searched, not being a criminal, reacts by attempting to defend himself and his family.
6. The police fire many rounds into the resident’s body.
7. It turns out to be a big mistake.
8. The police either smear the dead person to undermine sympathy toward the victim or antipathy toward the police for having made a mistake and needlessly killing a person.
9. The police explain that if was a tragic but completely understandable and justifiable mistake.

At each step, there are flaws that occurred that could have been avoided.  At each step, there is an explanation for why the faults were not detected, why the action was necessary, why tragedies happen.

None of this alters the fact that there is an innocent person, enjoying the quiet sanctity of their home and family, who is now dead. 

The assignment of blame is too easy and too difficult, largely because there is so much to go around.  The numerous levels of over-reliance, on unreliable and ill-motivated snitches, on paramilitary tactics and weapons, on sworn oaths and artfully crafted allegations, on false assumptions, on the need to eradicate drugs, all contribute to the killing.  The public’s desire for security and adoration of law enforcement, and its willingness to accept the killing of innocent people in the process, provided they aren’t engaged in the collateral damage, is an omnipresent factor.

The screamers in the comments of newspaper articles and blogs reflect the knee-jerk love or hatred of the system, either excusing it or decrying it.  Passions are inflamed, but only of a handful of people.  Most people won’t know of the tragedies. They are much more concerned with the latest fashions or gadgets.  The death of innocent people in their homes is terribly depressing, seemingly defying solution, and thus not something to dwell on for very long.

There was a time when the use of extreme force was considered not to be exercised routinely.  Warrants were rare.  SWAT teams didn’t exist.  Police either relied on investigation or tripping over the criminal, but not on the pervasive use of cooperators who were forced to manufacture crimes when they ran out of the few they actually knew about, usually involving themselves.

The linchpin was harm.  The priority of law enforcement was to prevent harm to citizens.  If the target of their attention was a person who was armed and dangerous, in the real sense rather than the currently presumed sense, the police took extreme action to try to stop their target from doing further harm.

With the initiation of the war on drugs, the priority shifted from prevent harm to eradicating drugs. No longer did police limit their actions toward people who were likely to be violent toward others, but rather toward people who they believed were engaged in selling drugs.  Soon, the presumption that drug dealers were armed became part of the justification to employ extreme force. 

This wasn’t entirely baseless, given the crack wars of the 1980’s, but it was also overly simplistic, and reflected a shift in law enforcement priorities, where every potential drug dealer was assumed to be a murderous threat despite the absence of any hard evidence to support the position.  But it has since become part of the mythology of crime, and justifies the employment of extreme measures in every case.

It’s fairly easy to see where law enforcement stepped onto the slippery slope. In fact, it was just over 40 years ago.  That was when the government made the decision that the importance of eradicating drugs in this country compelled law enforcement to act with extreme prejudice.  It was when police were told that they must treat drug dealing as if it was the murder of a child before their very eyes.  It was when they were given the moral authority to sacrifice the lives of citizens for the greater goal of the war on drugs.

Since then, everything has changed.  The governmental policy is that the seizure of drugs and arrest of those believed to be involved with drugs is more important than avoiding the mistaken killing of innocent people. Drugs trump people.

Lest we grow overly outrage too quickly, societal mores have changed with it.  Take those strong supporters of the Castle Doctrine, who firmly believe that they are entitled to kill people in the protection of property, and feel completely justified in causing the death of another human being to defend things.

There was once a foundational belief in this country that the use of force to defend and protect the lives of people was warranted, but that deadly force was not justified except to meet deadly force.  This is no longer the case.  Not for the police.  Not for the public.  Not for the courts.

We have become inured to the trade-offs.  We have come to accept collateral damage as the price that must be paid, wrapped up in platitudes that rationalize why it can’t be helped.  It wasn’t always this way.  It doesn’t have to be this way.  It can be helped.

This won’t end until we restore the traditional American value of the sanctity of life.  And there is little support for it, whether in law enforcement, government, the legal system or the public.  So people die.

The putative purpose of the television commercials is to enlist the public’s aid in stopping terrorism.  Certainly no one wants to stand idly by while terrorists blow up trains, right?  But is it necessary to be deluged with the slogan, “if you see something, say something?”

It is when creating a nation of rats.  Snitches.  Informants. People who will turn immediately to the police to alert them to someone doing something they don’t like.  Odd perhaps.  Or just something that annoys them.  Because you never know, and the worst that will happen is that the police will investigate and decide that it’s not a danger.  No harm, no foul.  Better to snitch at the drop of a hat then risk silence and allow evil to prevail.

Not just the grownups hear the pitch, but the children as well, indoctrinated to a world where we tell on others.  Snitching as a cultural imperative, for our safety.  Fear mongering is a very effective way for a message to seep into the subconscious.  Television is a very effective delivery mechanism.  Children are easily influenced, and believe what they see and hear, especially when it comes via a trusted medium over and over.

The  changes in the internal methods of the Federal Bureau of Investigation, ranging from picking through trash for fun and pleasure to roaming the internet in search of someone to investigate provoked Harvey Silverglate, author of Three Felonies a Day, to write a  letter to the editor of the New York Times.

You miss the main threat posed by the Federal Bureau of Investigation’s assuming the power to spy on all of us by physical surveillance, covert infiltration and even trash-picking, all without reasonable grounds for suspicion, much less the constitutional standard of “probable cause.”

The F.B.I. claims merely to want to find information by which it can squeeze citizens to cooperate in federal investigations. But what can possibly be found in the average person’s trash that would make him squeezable? The answer lies in the extraordinarily vague laws that characterize the sprawling federal criminal code.

The average law-abiding person probably engages in some act during the course of a typical day that an inventive agent or prosecutor can use as the basis for threatening a prosecution in the absence of “cooperation.” And once the citizen’s decision is made to cooperate, the feds excel at teaching their cooperators to become witnesses who know not only how to sing but also how to compose.

Going through the trash is simply the first step in an increasingly pernicious system that targets the innocent as well as the guilty. The Justice Department and its agencies and bureaus have completely lost sight of the limits that the Constitution was supposed to have imposed on their power.

HARVEY A. SILVERGLATE
Cambridge, Mass., June 19, 2011

No matter if the television commercials fail to persuade every American to do his civic duty and rat out his neighbor.  Even so, it’s always preferable to have redundant systems. 

Cooperation is such a benign word.  It’s cheerful and happy, raising images of hand-holding and voices singing in perfect harmony.  Working together.  Achieving a common goal. Cooperating.

All the while federal agents rummaging through out garbage to find something they can use, anything that raises the stench of wrongdoing, to convince us that joining the chorus is far better than being thrown in the hole.

Agents sift through garbage, looking for something to use against us.  Rats sift through garbage as well.  There is nothing benign about the word “rat.”

That nagging sense of worthlessness that lies just below the surface of legal scholarship has reared its ugly head again in a post by Brian Galle at PrawfsBlawg, questioning who would be the appropriate audience for lawprofs.

Many practitioners, from C.J. Roberts on down, have been heard to complain (read the comments!) about the “irrelevance” of recent legal scholarship to their work.  These complaints are, in a sense, factually wrong.  There is tons of doctrinal scholarship being produced today, much of it quite fine.  But to find it, you probably have to read a journal with “of” in the title, or a general-interest journal from a law school with a relatively low U.S. news ranking.  So really, the complaint is that gate-keepers at the most selective journals do not value the same things practitioners do.  It’s not an invalid complaint: being able to rely (at least to some extent) on gate-keepers to screen for quality is highly valuable for time-constrained actors.      

Perhaps, then, there is a need for some signal of quality for highly practical scholarship.  (The ABA’s journals seem a useful step in that direction.)  I nonetheless want to defend the status quo in which such scholarship is not highly prized by the academy, and therefore not prized by the gate-keepers who have internalized our norms. 

Yes, this again.  Another lawprof defending his efforts by telling those who might conceivably care that they’re wrong.  Here that, C.J. Roberts?  You should be reading law reviews because the guys who write the stuff say you’re wrong not to.

I’m not irrelevant! (stamps feet)  I’m not irrelevant! (stamps feet)

Yeah, not terribly convincing to me either. Galle distinguishes scholarship into two categories, theoretical and doctrinal.  The former is directed toward other academics, essentially internal musing meant to impress those who are fascinated by ideas with no practical applicability.  This he calls “modest.”  Doctrinal, on the other hand, is less than modest.

In short, I believe doctrinal scholarship should be viewed with some wariness because, in speaking directly to legal policy makers, it partakes of a perilous immodesty.  Purely theoretical scholarship, on the other hand, by whispering in the ears of other ivory-tower dwellers, is better suited to our limited capacity as scholars. 

A point raised in the comments by Bruce Boyden (who apparently doesn’t care for “snarky” responses to academic temper tantrums) is critical: 

Prestige for legal scholars is largely accorded by other legal scholars. Want to change what legal scholars write? Change the incentive system.

Since neither judges nor practitioners have a say in tenure or who gets the best parking spaces in the law school lot, why would lawprofs care whether anybody outside of the Academy reads their articles?  The answer is ego, and the need to be relevant.  Despite the first level of incentives, approval of their scholarly peers, the fact is that everyone wants to believe that they actually serve a purpose on earth.  Even lawprofs, a group disposed to insularity to avoid the slings and arrows of outrageous reality.

The alleged sin of immodesty may be grounded in the fact that lawprofs, in their ever-changing need to come up with a new hemline to justify why they’ve just penned the 387th law review article on a subject, live in a sanitized world.  They don’t accept this accusation, believing that the two years of judicial clerkship makes them as worldly as anyone else, but dabblers are like that.  No one wants to believe that their limited experience leaves them out of touch, and this is even more true of exceptionally smart people.  Like it or not, most lawprofs are indeed exceptionally smart. 

The reason this matters, at least to a trench lawyer like me, is that the waste of this very expensive, finely honed brain power is a travesty.  Writing articles that no one will read, like building houses that no one will live in, is just a terrible waste.  I read many of the lawprof blogs, and find them to have some very interesting, very curious insights.  The lawprofs don’t read practitioner blawgs, however, because we tend to be too vulgar and snarky for their tastes.  And we scare the crap out of them.

I find Galle’s attempt to rationalize the problem by separating the nature of content into theoretical and doctrinal to be largely misguided, a product of academic insularity.  This isn’t the problem, though the theoretical certainly tends to be so far removed from anything that would serve a sufficient purpose as to merit the time to read, sucked from so busy a schedule that only the most pressing and utilitarian matters make it to the front burner.

But it’s not because it can’t be interesting, or even worthwhile. 

In response, I offer a modest proposal to those lawprofs who, in their heart of hearts, want to believe that their efforts aren’t completely wasted.

1.  2000 Words.  Law review articles are too long and take too much time to read.  Time is a scarce resource, and, frankly, no one wants to waste it reading 78 pages of a law review article that reiterates its point 17 different ways.  Say it once. Say it clearly. Get out.

2. Write in English.  The Academy loves its jargon, as does every other insular group (including judges and practitioners).  But if you want us to read you, then use our language, not yours. It’s pedantic, tedious and, for the most part, incomprehensible. I realize that tenure committees adore scholarly jargon. We don’t.

3. Topical topics. It’s hard to find a topic that is interesting to you and matters to us. By topical, I don’t suggest that it must be popular or the flavor of the month, but that it touches on something that, at some point in time, someone outside of academia will care about. No one will ever, ever, find a use for an article on whether the Ministry of Magic affords due process to wizards.  Ever.

4.  Need to know. Some people read law review articles for fun. They are called “shut-ins” and usually would benefit from therapy.  The rest of us need to be able to find your brilliance when we need it.  Surprisingly, we don’t hang out at SSRN when we research a topic.  If you want us to read you, make your writings available to us in the normal course of research.  We’re really kind of busy and aren’t inclined to endure the labor of finding your writings before suffering to read them.

5. Eyes wide open. Despite your agenda and attempt to be provocative, recognize that the utility of odd theories or policies depends on their recognition of countervailing arguments. While you may be comfortable ignoring them or dismissing them out of hand, we don’t have that luxury since there’s always a guy at the other table waiting to call us out.

6. Man up. Sometimes there’s a germ of a useful idea in scholarship, but it smacks head first against the wall of reality.  When you’re told, you argue that you’re right and we’re wrong.  There are few groups more defensive than lawprofs.  Here’s a compromise: We’ll acknowledge that you’re all brilliant if you’ll acknowledge that we have a slightly better clue as to what happens in the well.  It may not comport with life in the ivy covered buildings, but we wouldn’t lie to you.  Really, we wouldn’t.

The problem with these suggestions, as Bruce Boydon noted, is that we don’t have tenure to offer, can’t give you a raise or a chair, don’t even get a vote on where you get to park.  The incentive system for lawprofs is wholly outside our control, and nobody in law school administration has ever really cared a whit what the practitioners have to say about their stewardship.

But if you want to be relevant to us, and you want us to read you, this is what you need to do.