Thursday, June 5, 2014
Michigan top court says governor wrongly revoked commutation
What Would Atticus Have Done?
In 1992, Monroe Freedman, a legal ethics expert, published two articles in the national legal newspaper Legal Times calling for the legal profession to set aside Atticus Finch as a role model. Freedman argued that Atticus still worked within a system of institutionalized racism and sexism and should not be revered. Freedman's article sparked a flurry of responses from attorneys who entered the profession holding Atticus Finch as a hero, and the reason they became lawyers. Critics of Atticus such as Freedman maintain that Atticus Finch is morally ambiguous and does not use his legal skills to challenge the racist status quo in Maycomb.While Atticus might have fulfilled the highest calling of a lawyer, Freedman saw the character as failing his calling as a human being in a racist society, and considered that to be a fatal flaw.
Monroe H. Freedman, ""Atticus Finch, Esq., R.I.P.,"" 14 LEGAL TIMES 20 (1992); Monroe H. Freedman, ""Finch: The Lawyer Mythologized,"" 14 LEGAL TIMES 25 (1992) and Monroe Freedman, Atticus Finch – Right and Wrong, 45 Ala. L. Rev. 473 (1994).
Yesterday was Race Day at the New York Times, where two op-eds argued the failure of a certain verdict in Florida was due to the one word unspoken throughout the trial, race. In a "surprising" choice that suggests the power of an excellent public relations team, one op-ed was by Gloria Allred's daughter, Lisa Bloom, who, after explaining the basis for her assumption about what was inside George Zimmerman's head, illuminated the race issue with the insightful:
Huh?In contrast, Cardozo lawprof Ekow Yankah invokes the spirit of his fellow lawprof, Freedman, in writing:
The anger felt by so many African-Americans speaks to the simplest of truths: that race and law cannot be cleanly separated. We are tired of hearing that race is a conversation for another day. We are tired of pretending that “reasonable doubt” is not, in every sense of the word, colored.This conforms with my assumption as well. I find it impossible to believe that Zimmerman's perception of Martin as being "a punk" wasn't colored by race. Sure, there was also youth and attire, but it was part of the whole package. And to the extent that his skin color played a role in his perception that this was a kid who needed to be followed, who posed a threat of doing something wrong, it is racist. Maybe not white hooded, cross-burning racism, but racist nonetheless.
Every step Mr. Martin took toward the end of his too-short life was defined by his race. I do not have to believe that Mr. Zimmerman is a hate-filled racist to recognize that he would probably not even have noticed Mr. Martin if he had been a casually dressed white teenager.
This isn't a legal argument, however. Bloom and Yankah are both writing from the legal perspective, but what they are writing about isn't legal. It's sociological, a condemnation of a society that is still racist despite having a black president. Anyone who thinks it's "problem solved" is delusional.
But Yankah contends that it is "the simplest of truths: that race and law cannot be cleanly separated." Cleanly? No, it probably can't be cleanly separated, though it's similarly unclear that this constitutes "the simplest of truths." There is nothing simple about it.
It gives rise to a troubling question, that Yankah fails to adequately address and is way over Bloom's head.
What is reasonable to do, especially in the dark of night, is defined by preconceived social roles that paint young black men as potential criminals and predators. Black men, the narrative dictates, are dangerous, to be watched and put down at the first false move. This pain is one all black men know; putting away the tie you wear to the office means peeling off the assumption that you are owed equal respect. Mr. Martin’s hoodie struck the deepest chord because we know that daring to wear jeans and a hooded sweatshirt too often means that the police or other citizens are judged to be reasonable in fearing you.Being fully willing to accept that race factored into Zimmerman's perception, based on my own personal bias, the question that remains unanswered is what should the law have done about it?We know this, yet every time a case like this offers a chance for the country to tackle the evil of racial discrimination in our criminal law, courts have deliberately silenced our ability to expose it. The Supreme Court has held that even if your race is what makes your actions suspicious to the police, their suspicions are reasonable so long as an officer can later construct a race-neutral narrative.
Does the introduction of race by the prosecution into Zimmerman's perceptions alter the rule of self-defense? Does it render his subsequent conduct unlawful, even if it would have been lawful otherwise? Should there be two rules of law, one for interactions between people of different races where perceptions of the significance of conduct is assumed to be racially related, if not motivated?
To point out that we still live in a society where race remains a pervasive unresolved issue is to state the obvious. To suggest that the criminal law should accommodate it is to present an intractable problem. Atticus Finch didn't hesitate to put his life on the line for his client, a black man accused of raping a white woman. But he didn't do enough because he didn't confront the racist society in defending Tom Robinson?
If the prosecution had been allowed, and inclined, to argue that George Zimmerman's conduct was racially motivated, and that his ultimate decision to shoot and kill Trayvon Martin was, at least in the tiniest of ways, based upon his race, would that have rendered his belief that he was about to suffer death or serious injury unreasonable? If his head was being beaten against concrete by a white youth, as opposed to a black youth, would the harm have been different?
The argument that this scenario would never have commenced had Trayvon Martin been a white youth in a sports jacket and khakis is likely true. It's pure speculation no matter how much your head screams "yes, yes, yes," of course, but still. Yet how would the law have been any different at the point where a shot was fired?
If we are to have a nation of laws to guide ourselves, how do we draw these vague, fuzzy lines where the law ceases to apply, where it's a free for all, where there is no longer a fixed right and wrong and everything becomes a matter of feelings, assumptions and personal perspective? Yankah may be right that race and law cannot be cleanly separated in our collective consciousness, but then we cease to be a nation of laws when we ignore one for the other.
You might prefer that to happen here, but will you feel the same when you sit in the defendant's chair? So what would Atticus Finch have done? He would have defended George Zimmerman based on the law, even if he failed to meet Monroe Freedman's expectation that he not be morally ambiguous. Atticus Finch would have still been the paragon of honor, even in the face of societal condemnation. That's what criminal defense lawyers do. That's what we are sworn to do.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
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Legaltronix: A Rating System in the Legal Services Profession
Source: http://traffic.libsyn.com/ringler/RR_011414_LegalTronix.mp3
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LawBiz® Legal Pad: Leaving Your Law Firm
The recession has been tough on law firms, and many lawyers have been laid off or terminated. In this week’s clip, Ed discusses tips for lawyers as they leave their firms and look for new work.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/szhhrur9p4A/
Board rules Medicare can pay for sex reassignment surgery
Source: http://jurist.org/paperchase/2014/05/board-rules-medicare-can-pay-for-sex-reassignment-surgery.php
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Chemical Weapons Law Doesn't Apply To Jilted Lover, Supreme Court Rules
Federal laws that were meant to prevent the international use of chemical weapons can't be applied to a woman who tried to poison her husband's mistress, the Supreme Court says.
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Wednesday, June 4, 2014
LawBiz® Legal Pad: Retainers- Do They Do Any Good For You?
Ed examines the complexities of retainers and discusses their use within the legal profession.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/uUcsklaftuY/
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Managing Overflow Work with Freelance Attorneys
Leila Kanani is an IP solo attorney and founder of Intermix Legal. After over 10 years of practice in BigLaw, she left for more control and balance in her life. Her objective in creating Intermix was to provide a flexible framework for experienced attorneys to participate in project-based contract legal services for solos and small firms.
Gil Schipani is the founder of Tempus Fugit Law, which specializes in substitute counsel/court coverage for lawyers as well as single transaction services. He is currently a partner with Schipani and Sinay and former Assistant City Solicitor of Brockton, Massachusetts. His practice area focuses on real estate, personal injury, business, and employment law.
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Justice Department Renews Focus On Homegrown Terrorists
U.S. Attorney General Eric Holder is drawing new attention to the threat from homegrown, lone-wolf radicals. He's pulling together a group of prosecutors and FBI agents to address domestic terrorism.
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Federal judge issues stay on death penalty in Ohio
Source: http://jurist.org/paperchase/2014/05/federal-judge-issues-stay-on-death-penalties-in-ohio.php
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End of Lifed
Mind you, this didn't stop GoDaddy from taking my money to use their program, but I digress.
Over the past couple of months, I have been involved in an effort to move SJ to a new platform over at WordPress with a new host. It had a few hitches along the way. My initial efforts involved some of the turnkey opportunities for blawgers, one of which involved spending huge sums of money because their business model is based on dopey law firms who buy into the "every lawyer needs a blawg or will die" vision of the future.
Since this isn't a marketing tool or money maker for me, there was no way I was going to throw thousands of dollars into this hole. My basic premise is that I write and people get to read, if they want, for free. While I am happy to provide the content for my own purposes, if not yours, I am not happy to pay through the nose to amuse readers.
Another wanted me as part of their stable of law blogs, which wouldn't have been so awful except that they quickly reneged on the deal offered when they saw the volume of traffic here. Reneging isn't something I can live with.
Lacking the mad computer skillz to make this happen on my own, a few people who had significant computer skills and enjoyed SJ offered to lend a hand and make a move happen. One gave me a lead on the big issues, but was too high on the pay grade to do the dirty work. Another was happy to make the nuts and bolts of a change happen.
After being well on the way, he suffered some personal problems and, well, disappeared on me. As in, went dark. I grew far more concerned about his welfare than I was about moving this blog. Some things are real, like a good person's well-being, and to this moment, I have no clue whether he is dead or alive. I hope he gets in touch with me soon. I'm still deeply concerned.
It wasn't easy stuff. GoDaddy's system was proprietary, and didn't play nice with anyone else's system. While GoDaddy had developed an export feature to move content to WordPress, they found out that it wasn't particularly "robust," and that my rather extensive content crashed the system. It could handle about 100 blog posts. I had well over 5000. Nobody at GoDaddy anticipated someone as prolific as me.
But when their general counsel explained that I probably wasn't a great choice of people to piss off, they put some developers on the task of creating a means of moving my content. It took a couple of weeks, but they eventually managed to pull it off. It was a decidedly less than perfect solution, as they were able to include my posts and the comments, but they couldn't manage to get the contents to thread (or nest, if you prefer) at WordPress. Bear this in mind later, so no one bitches at me about the comments. It just couldn't be done.
Many people have suggested their hosts, web designers, programs, whatever, to fix the disaster of using GoDaddy. While I appreciated the concern, it wasn't really helpful after the first few thousand suggestions. Most of my griping had to do with prodding GoDaddy to keep SJ working, at least minimally, until a move could be completed. This wasn't a bleg for suggestions, but deliberate effort to poke GoDaddy by a wee bit of public shaming for their inability to do what they took money to do.
Finally, I was hooked up with a guy who, for a fee, would do what was needed to finish the move. We were on the same page, and although it irks me that I have to pay someone to do the work, I wasn't ready to let SJ die and didn't want to see the content created over the past seven plus years disappear when SJ went dark. But my new guy developed some personal issues that pulled his attention away from making the move happen, I began to think I was a curse to computer people (or maybe computer people were a curse to me?).
It appears that we're are all getting on the same page now, and provided an alien invasion, healthcare crisis or zombie Armageddon doesn't happen in the next couple of days, I anticipate that SJ will move to its new home.
It's not yet clear to me how easily I will accommodate to WordPress. I know, tons of you have told me how easy it is, but I'm an old dog and new tricks come hard. Heck, it took me a few hours to figure out how to use the "intuitive" wheel of an iPod. Yes, I can be that clueless.
I anticipate that there will a day or two, maybe more, when nothing will appear at SJ. It's not that I've quit or gone fishing. I'm not dead yet. It's just that there will be down time while all this happens, while the internet figures out that I've moved to a new home and redirects you to the right address.
There will be problems in the future as well. Images will be missing. Links will be broken. Formatting will get all screwed up do to differences in coding between GoDaddy and WordPress. It will be annoying to you. Me too, probably more so. But short of going back over the more than 5000 posts and cleaning up the mess by hand, there isn't much I can do to prevent the problems. I am not inclined to spend my time that way. Sorry, but we will all have to suck it up.
I hope this makes things a little clearer for readers, and I apologize for the problems, delays and frustration caused by GoDaddy's sucking. I've been working on it for months now, and I hope we've come to the end of the nightmare. In any event, it's better than being End of Lifed by GoDaddy.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/10/end-of-lifed.aspx?ref=rss
Should Getting High Stop You From Getting Hired?
FBI director James Comey recently quipped that current marijuana policies make it hard to hire good people. Is this a sign of changing attitudes towards hiring and pot?
Source: http://www.npr.org/2014/06/02/318209067/should-getting-high-stop-you-from-getting-hired?ft=1&f=1070
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5 Reasons Patents Are on the Rise
Source: http://blogs.wsj.com/law/2014/06/02/5-reasons-patents-are-on-the-rise/?mod=WSJBlog
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Tuesday, June 3, 2014
High Court Leaves New York's Online Sales Tax Law in Place
Source: http://www.nationallawjournal.com/id=1202631211450?rss=rss_nlj
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How Bad Ideas Grow Legs
It was excoriated here. Gideon beat it up at A Public Defender as well. Unlike Reynolds, this wasn't a theoretical exercise for us. We lived with the problems, and would wind up living with whatever inane solution seemed like a cool idea to an academic. Whereas Reynolds' mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.
Radley Balko took us to task for being critical of Reynolds. The Agitator offered a homily of cooperation, arguing that we ought to work with luminaries like Reynolds rather than saying mean things like their ideas aren't fabulous. After explaining what was horribly wrong with a particular idea promoted by Reynolds that Radley found especially interesting (loser pays in criminal litigation), I wrote:
Radley also questioned by twit why I wasn't more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, "And it's probably more productive to engage, persuade new allies than to shun and mock them." Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley's query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn.
Of course, I was shunning and mocking, just as Radley said. But then, I had no plan to suck up to Reynolds in an effort to gain him as an ally anymore than I planned to teach a pig to sing. As players in punditry go, Reynolds is a major player,* and he enjoys his importance. He doesn't swim with minnows like Gid and me. At most, he eats us for a snack. Radley may have been well-intended, but didn't really appreciate the pecking order.
Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers, who could explain why good ideas on paper don't play as well in the courtroom. But no. He didn't. Since it was his essay being published to enlighten the world, it was his duty to get a clue, and his choice not to.
My point to Radley at the time was the when loud voices with ascribed credibility write something like this, bad things happen. Bad ideas are taken more seriously. Other people will mistakenly assume that Reynolds, lawprof and all, has a clue what he's talking about and his ideas must have merit. After all, lawprofs could never be wrong about lawstuff. And now that Reynolds had rung the bell, it could not be unrung.
George Will, certainly one of this country's leading conservative intellectuals, heard the peal of Reynolds' bell this week. In an otherwise excellent column on Senators Leahy and Rand's efforts to provide a backdoor to mandatory minimums (which raises the question of why they aren't seeking to end mandatory minimums through the front door, but we'll take it anyway they offer it), Will goes from the sublime to the ridiculous:
While Instapundit is a Big Kahuna on the interwebz and among academics, George Will has a soap box that dwarfs Reynolds. And he's taken Reynolds' "ideas" mainstream, not only crediting Reynolds for his position as an academic, but taking for granted that he's got criminal law chops. It's unlikely that George checked Reynolds out at Tennessee Law School, where he teaches Administrative Law, Constitutional Law, Law, Science, and Technology, Space Law, Internet Law. See criminal law in there? See anything in his past to suggest even a passing familiarity with the actual practice of criminal law? Me neither.The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”
He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”
Yet, I look forward to some fine senators extolling the virtue of a dangerous and hare-brained reform of the law, citing to Glenn Reynolds' Ham Sandwich essays as the font of practical criminal law brilliance. Because the myth has now been created and George Will gave it legs.
And this is how we end up with monumentally bad ideas being enshrined in law.
* For those who aren't familiar with Instapundit, this from Reynolds' Wikipedia page:
Much of Instapundit's content consists of links to other sites, often with brief comments. (His frequent use of "heh," "indeed," and "read the whole thing" have been widely imitated and are often parodied by other bloggers.) Reynolds encourages readers to explore the wider blogosphere and to fully read articles and posts to which he links.And that's the foundation for being a major player on the internet.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/10/how-bad-ideas-grow-legs.aspx?ref=rss
THE CAREERIST: Magic Circle Partner Rates Up
Source: http://www.nationallawjournal.com/id=1202631240493?rss=rss_nlj
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LawBiz® Legal Pad: Value Billing
Ed discusses how increase your value by understanding what is most important to your clients.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/rndSR0JE53s/
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The Best of the Plaintiffs Bar
Source: http://www.nationallawjournal.com/id=1202624154645?rss=rss_nlj
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Monday, June 2, 2014
It's Not Easy Being Weev (Update)
Appellants and amici briefs are now in at the Third Circuit on the appeal of Andrew Auernheimer's conviction for somehow violating the Computer Fraud and Abuse Act. I say "somehow" as the government was never pinned down on whether it was exceeding authorized access or unauthorized access. But they were clear that what he did was wrong, wrong enough to get him convicted and sentence to 41 months imprisonment.
Weev didn't help himself. Whether he wanted to be a martyr to the cause of geekdom or just unwilling to win except on his terms isn't clear. But his lawyer, Tor Eckland, couldn't control him, and had enough on his hands trying to defend Weev in what I believe to be his first trial*. While the prosecution was huge within the computer hacker community, it didn't garner the attention of Lori Drew's prosecution, lacking a dead child. But make no mistake, Weev's prosecution raises issues of monumental significance for all computer users.
Orin Kerr, who joined the defense team on appeal, gives a summary of the case.
Here are the basic facts. When iPads were first released, iPad owners could sign up for Internet access using AT&T. When they signed up, they gave AT&T their e-mail addresses. AT&T decided to configure their webservers to “pre load” those e-mail addresses when it recognized the registered iPads that visited its website. When an iPad owner would visit the AT&T website, the browser would automatically visit a specific URL associated with its own ID number; when that URL was visited, the webserver would open a pop-up window that was preloaded with the e-mail address associated with that iPad.
The basic idea was to make it easier for users to log in to AT&T’s website: The user’s e-mail address would automatically appear in the pop-up window, so users only needed to enter in their passwords to access their account. But this practice effectively published the e-mail addresses on the web. You just needed to visit the right publicly-available URL to see a particular user’s e-mail address. Spitler realized this, and he wrote a script to visit AT&T’s website with the different URLs and thereby collect lots of different e-mail addresses of iPad owners. And they ended up collecting a lot of e-mail addresses — around 114,000 different addresses — that they then disclosed to a reporter. Importantly, however, only e-mail addresses were obtained. No names or passwords were obtained, and no accounts were actually accessed.
Or to put it a bit more succinctly, Weev and Spitler stumbled on pages that were publicly accessible, but AT&T figured no one would find because there was no way to access them other than to have its iPad or, as stumble on them. They then did what geeks do, and exploited their discovery to see how far they could go. Rather than hand it over nicely to AT&T so it could cover its tracks and deny its screw-up, they gave it to a reporter to publish. AT&T was pissed, and the government was happy to prosecute as payback for quick and easy disclosure of your cellular communications the heinous crime of publicly embarrassing AT&T for being a computer idiot.
The appellant's brief, after a disturbing opening to the main argument that repeats the conventional wisdom from 1986 analogizing computers to physical trespass, takes the view that this just isn't a crime. As the pages were public, it cannot be unlawful access. The brief reads more academic than advocate, but does an admirable job of making its points.
There are two amici briefs, one arguing that this is how everybody uses the internet, and the other arguing that this is how sophisticated internet security experts use the internet, both reaching the same conclusion that affirmance of Weev's conviction would criminalize normal and lawful practices.
As everybody else involved relies on analogies, it seems appropriate despite my view that it's critical to stop using real world analogies to explain digital world conduct, to do the same. The prosecution's argument is that just because someone leaves their door unlocked doesn't mean a person can walk in and take what he wants. The defense argument is that when someone leaves their stuff in front of a picture window, passersby commit no crime by looking in and seeing what the person put on display. Neither analogy strikes me as fully satisfying.
The question for the rest of us is where the line is drawn between lawful and unlawful conduct based on a law crafted at the birth of public computer use and before there was any world wide web to consider. The language of the CFAA fails miserably to provide an answer, and there is certainly no "originalist" view since there was no internet in existence. What we are left with is empty, meaningless language being shoehorned into technology that didn't exist. It might have seemed like a good idea back in 1986, but we're paying for it now.
Nonetheless, Congress can't be bothered to do its job of crafting a law that might apply, and the court is left with trying to decipher criminality from inapt words and their limited grasp of how the tubes work (or that of their kids, their law clerks, or maybe the kid down the street).
The prosecution has a huge glaring hole that needs answering: Is there any middle ground for a URL that can be accessed without hacking a password but is otherwise not intended to be found, accessed or used except by a discrete, chosen group of users? The government wants the crime to depend on the subjective and transitory intent of the website owner, where "unauthorized" is defined as undesired. The defense wants a brightline test that says if it can be publicly accessed, then there can be no crime.
The government's position is not only untenable, but presents a threat to users that can't be tolerated. And indeed, it's so highly subjective, and selective, that it ignores that Google et al. violate it constantly with impunity. Do we want cookies and bots crawling all over us, capturing our personal info to feed back to people so they can sell us crap? I don't think so. But it prevailed below anyway.
The problem now is that the burdens shift on appeal, and it's the appellant's position that will be subject to scrutiny. Is there no limit to what we can access on the internet, as long as we don't hack the password? What if all the surrounding circumstances leave us with no doubt that the website owner doesn't want anybody coming in uninvited, so that no reasonable person can not be aware that he's entering a URL where he isn't welcome? Is that still okay?
Since the lines are drawn at polar extremes, and the arguments remain couched in poor analogies, and the judges will have a terrible time getting into the mindset of sophisticated computer users who think nothing of screwing around with user agents to see what they can find, and Weev felt compelled to handle himself in the typical, snarky, computer whizkid way that tends to just piss the crap out of everybody who isn't a snarky computer whizkid, this is going to be a tough fight.
But there remains one detail that I would have pounded hard, far harder than either the appellant or amici. Fair notice requires that the language of the CFAA, for smarter or stupider, state clearly what constitutes criminal conduct so that a person will know what not to do. By the Rule of Lenity, the failure of the law to adequately define a crime given the state of technology as it currently exists must resolve all ambiguities in favor of the defendant.
While no one knows what Congress might do if it is forced to recraft the CFAA, and they could make it even worse, what seems clear now is that it is far too unclear to imprison anyone whose conduct falls within that middle ground of not hacking a password and breaking through a brick wall. Maybe they would criminalize what happened here, but until the law makes clear where the line is drawn, the government can't just make it up at will. And the Third Circuit should not be so activist as to give a 2013 meaning to a 1986 law that the government pulls out of its butt to nail Weev.
Weev's conviction must be reversed, despite his attitude and mouth, because the rest of us used the internet too and if Weev is a criminal, so too are we all.
* I hasten to add, lest anyone think otherwise, that I think Tor did an exceptional job with this case, even the more remarkable given the circumstances.
Update: Via Volokh, the amicus brief of the National Association of Criminal Defense Lawyers has just become available. While I'm still going through it, my initial impression is that it's excellent, and fills in some of the gaps in the other briefs. Notably, putting them all together, the argument on behalf of Weev is overwhelming.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/09/its-not-easy-being-weev.aspx?ref=rss
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AI: Iran must halt execution of political dissident
Source: http://jurist.org/paperchase/2014/06/ai-iran-must-halt-execution-of-political-dissident.php
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House Vote Aims To Derail DOJ Processing Of Clemency Petitions
Attorney General Eric Holder reportedly said language inserted by lawmakers to prevent the hire of additional Justice Department attorneys is "absurd."
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Ethical Perils of Social Media for Lawyers and Judges
Judge Herbert B. Dixon, Jr. sits on the Superior Court of the District of Columbia and is a former chair of the National Conference of State Trial Judges. He is the technology columnist for The Judges' Journal magazine and a former member of the ABA Techshow Planning Board. Judge Dixon is Senior Judicial Advisor to William and Mary Law School's Courtroom 21 Project, the Presiding Judge for the Superior Court's Technology-Enhanced Courtroom Project, and a frequent speaker on topics related to the intersection of law and technology.
Source: http://legaltalknetwork.com/podcasts/digital-edge/2014/03/ethical-perils-social-media-lawyers-judges
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Tsarnaev Friend Accused Of Impeding Boston Bombing Investigation
Khairullozhon Matanov lied and destroyed evidence about his contacts with the Tsarnaev brothers in the immediate aftermath of the April 2013 Boston Marathon bombing, according to an indictment.
Revenge Porn: Societal Costs and Legislative Solutions
Dr. Holly Jacobs is the Founder, President, and Executive Director of Cyber Civil Rights Initiative, which is the parent organization for the End Revenge Porn Campaign. She is a national commentator and writer on the subject and holds a PhD in Industrial/Organizational Psychology. While pursuing her graduate degrees, Jacobs became a victim of revenge porn and has since dedicated her life towards providing resources and advocacy to victims of online harassment.
Professor Mary Anne Franks is the Vice President of Cyber Civil Rights Initiative and an Associate Professor of Law at the University of Miami School of Law. She holds a JD from Harvard Law School and prior to her teaching career, obtained both her Masters and PhD in Modern Languages and Literature as a Rhodes Scholar at Oxford University. As part of her continuing efforts with the Cyber Civil Rights Initiative, she works with state legislatures to draft legislation against non-consensual pornography.
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The Best of Legal Tech for Solos and Small Firms 2014
John Simek is the vice president of Sensei Enterprises, a digital forensics, information technology and information security firm located in Fairfax, Virginia. He is a co-author of The 2014 Solo and Small Firm Legal Technology Guide: Critical Decisions Made Simple, published by the American Bar Association along with many other books on technology, security and electronic evidence. John is a testifying expert and holds many technical certifications. He's also a co-host on another Legal Talk Network podcast, the Digital Detectives.
Source: http://legaltalknetwork.com/podcasts/digital-edge/2014/05/best-legal-tech-solos-small-firms-2014
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Federal appeals court overturns Missouri ban on flag desecration
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Sunday, June 1, 2014
Manhattan U.S. Attorney Preet Bharara Keeps the Heat on Albany
Lawyer Scams and How to Avoid Them
Pinnington is the Vice President of Claims Prevention and Stakeholder Relations at Lawyers' Professional Indemnity Company (LAWPRO). He is a prolific writer, speaker, and blogger on topics including practice management, risk management, and legal technology. He is also a contributor to AvoidAClaim.com which is blog by LAWPRO that, among many things, helps attorneys prevent malpractice claims.
Source: http://legaltalknetwork.com/podcasts/digital-edge/2014/02/lawyer-scams-avoid/
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Child Porn Victim Can Sue Anonymously
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Employer Fraud and Recommendations from New York State Supreme Court’s Grand Jury Report
Gilda Mariani is with the New York County District Attorney's Office, having held supervisory positions including Deputy Chief of its former Frauds Bureau as well as Chief of its former Money Laundering and Tax Crimes Unit. She has had a significant role in drafting legislation, including the New York Money Laundering Statute and the misdemeanor crime of Providing a Juror with a Gratuity. She has conducted several investigations that have led to issuance of Reports by the New York County Grand Jury, including the Grand Jury Report released in March 2014 on workers' compensation reform. Mariani is also a recipient of the Robert M. Morgenthau Award by the District Attorneys Association of the State of New York.
Special thanks to our sponsor, PInow.
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EEOC briefs on line
This is pretty cool.
EEOC briefs are now on line. [Here]
They cover briefs filed in the US Circuit Courts of Appeals in which the EEOC was a party, plus amicus briefs filed in the US Circuit Courts of Appeals, District Courts, and state courts.
And there is a user-friendly search function.
Briefs filed in the US Supreme Court are not in this collection, and can be found through the US Solicitor General's collection [here].
Source: http://www.lawmemo.com/blog/2012/06/eeoc_briefs_on.html
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How Bad Ideas Grow Legs
It was excoriated here. Gideon beat it up at A Public Defender as well. Unlike Reynolds, this wasn't a theoretical exercise for us. We lived with the problems, and would wind up living with whatever inane solution seemed like a cool idea to an academic. Whereas Reynolds' mantle of scholarly credibility was an asset for others whose interest came from a distance, ours was nuts and bolts, from living with the detritus of bad ideas in the trenches.
Radley Balko took us to task for being critical of Reynolds. The Agitator offered a homily of cooperation, arguing that we ought to work with luminaries like Reynolds rather than saying mean things like their ideas aren't fabulous. After explaining what was horribly wrong with a particular idea promoted by Reynolds that Radley found especially interesting (loser pays in criminal litigation), I wrote:
Radley also questioned by twit why I wasn't more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, "And it's probably more productive to engage, persuade new allies than to shun and mock them." Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley's query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn.
Of course, I was shunning and mocking, just as Radley said. But then, I had no plan to suck up to Reynolds in an effort to gain him as an ally anymore than I planned to teach a pig to sing. As players in punditry go, Reynolds is a major player,* and he enjoys his importance. He doesn't swim with minnows like Gid and me. At most, he eats us for a snack. Radley may have been well-intended, but didn't really appreciate the pecking order.
Of course, there was nothing to stop Reynolds, either before or after he published his Ham Sandwich essay, from speaking with people who were actually knowledgeable about criminal law, whether that was Gid and/or me, or some other trench lawyers, who could explain why good ideas on paper don't play as well in the courtroom. But no. He didn't. Since it was his essay being published to enlighten the world, it was his duty to get a clue, and his choice not to.
My point to Radley at the time was the when loud voices with ascribed credibility write something like this, bad things happen. Bad ideas are taken more seriously. Other people will mistakenly assume that Reynolds, lawprof and all, has a clue what he's talking about and his ideas must have merit. After all, lawprofs could never be wrong about lawstuff. And now that Reynolds had rung the bell, it could not be unrung.
George Will, certainly one of this country's leading conservative intellectuals, heard the peal of Reynolds' bell this week. In an otherwise excellent column on Senators Leahy and Rand's efforts to provide a backdoor to mandatory minimums (which raises the question of why they aren't seeking to end mandatory minimums through the front door, but we'll take it anyway they offer it), Will goes from the sublime to the ridiculous:
While Instapundit is a Big Kahuna on the interwebz and among academics, George Will has a soap box that dwarfs Reynolds. And he's taken Reynolds' "ideas" mainstream, not only crediting Reynolds for his position as an academic, but taking for granted that he's got criminal law chops. It's unlikely that George checked Reynolds out at Tennessee Law School, where he teaches Administrative Law, Constitutional Law, Law, Science, and Technology, Space Law, Internet Law. See criminal law in there? See anything in his past to suggest even a passing familiarity with the actual practice of criminal law? Me neither.The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”
He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”
Yet, I look forward to some fine senators extolling the virtue of a dangerous and hare-brained reform of the law, citing to Glenn Reynolds' Ham Sandwich essays as the font of practical criminal law brilliance. Because the myth has now been created and George Will gave it legs.
And this is how we end up with monumentally bad ideas being enshrined in law.
* For those who aren't familiar with Instapundit, this from Reynolds' Wikipedia page:
Much of Instapundit's content consists of links to other sites, often with brief comments. (His frequent use of "heh," "indeed," and "read the whole thing" have been widely imitated and are often parodied by other bloggers.) Reynolds encourages readers to explore the wider blogosphere and to fully read articles and posts to which he links.And that's the foundation for being a major player on the internet.
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Source: http://blog.simplejustice.us/2013/07/10/how-bad-ideas-grow-legs.aspx?ref=rss
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Supreme Court Watch: Employment law cases
We will be watching three pending cases at the US Supreme Court as the Court's session opens today:
Kloeckner v. Solis
Oral argument on October 2.
The Merit Systems Protection Board (MSPB) hears appeals by federal employees regarding certain adverse actions, such as dismissals. If the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case."
Question Presented: If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?
Vance v. Ball State Univ
Oral argument on November 26.
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) held that under Title VII, an employer is vicariously liable for workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence.
Question Presented: Whether the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
Genesis HealthCare v. Symczyk
Oral argument December 3.
Symczk sued under the Fair Labor Standards Act (FLSA) on behalf of herself and all others similarly situated. This was a section 216(b) collective action. The defendants extended an offer of judgment under Fed. R. Civ. P. 68 in full satisfaction of her alleged damages, fees, and costs - prior to her moving for conditional certification and prior to other potential plaintiffs opting in.
Question Presented: Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.
Source: http://www.lawmemo.com/blog/2012/10/supreme_court_w_11.html
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Patent Law — Best Practices as Seen From the Bench
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