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Saturday, March 29, 2014
Experts Debate Impact of Northwestern Ruling
Here's what experts are saying about the ruling by the National Labor Relations Board that Northwestern University scholarship football players are eligible to form the nation's first college athletes' union.
Twitter and Yahoo Silenced—For Now—in Subpoena Spat
Twitter and Yahoo won't get a chance to respond to efforts by the U.S. Department of Justice to bar the companies from sharing information about grand jury subpoenas, at least for now.
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California AG appeals decision striking down sentencing laws
[JURIST] The California Attorney General's Office [official website] on Thursday appealed a federal judge's decision striking down two sentencing laws. Judge Lawrence Karlton held that the laws were unconstitutional [JURIST report] because they affected the punishment for crimes committed before the laws were enacted. Marsy's Law [text], otherwise known as the "Victims' Bill of Rights," was passed in 2008, mandating that inmates serve longer periods of time between parole hearings. Meanwhile, Proposition 89 [text], entitled the "Governor's Parole Review," was...
Plaintiff on Hook for Patent Office's Attorney Fees
An "odd" federal law requires plaintiffs who bring lawsuits challenging the U.S. Patent and Trademark Office's trademark rulings to pay all of the agency's expenses including attorney fees, no matter which side wins, a Virginia federal judge has ruled.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202636754148&rss=rss_nlj
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Friday, March 28, 2014
Entropy: It's Not What It Used To Be*
In thermodynamics, entropy is the measure of how things go from order to disorder. Its application is far broader, however, applying to life in general. For those of us, like me, who strive to maintain order, it is the enemy.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 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.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
God, grant me the serenity to accept the things I cannot change,Then again, it has nothing to do with God. It has to do with us. We make choices. If you're inclined to believe in a deity, then know that the deity imbued you with the power to make wise or foolish choices, and left it to you to decide which.
The courage to change the things I can,
And wisdom to know the difference.
You can choose a ready guide in some celestial voice.When I'm asked how I manage to get as much done in a day as I do, the answer is order. I organize. I plan ahead. I try to anticipate the chaos I will confront in the course of trying to get things done so that I can accommodate it as much as possible, and will give myself enough room so that someone else's choice of disorder won't completely undermine what I need to accomplish.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that's clear-
I will choose Free Will.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 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/2013/07/14/entropy-its-not-what-it-used-to-be.aspx?ref=rss
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Senate Committee Advances Four Judicial Nominations
The Senate Judiciary Committee approved four nominations today, including a unanimous voice vote on Boies, Schiller & Flexner partner Tanya Chutkan to serve on the U.S. District Court for the District of Columbia.
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Washington's sexual orientation discrimination amendment is not retroactive
The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.
The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.
Loeffelholz v. Univ of Washington (Washington 09/13/2012)
Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.
The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.
Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.
The court's findings:
(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.
(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.
(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.
Source: http://www.lawmemo.com/blog/2012/09/washingtons_sex.html
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The Limited License Legal Technician: Washington State’s Paralegal Law Practice
In reaction to rising legal costs and decreased access to legal services, Washington State has authorized paralegals to practice law on a limited basis through its new Limited License Legal Technician (LLLT) program. Soon paralegals will be able to practice in specific areas of law. To learn more about this developing field, tune into this episode of the Paralegal Voice, where host Vicki Voisin interviews NALA President Ann Atkinson, ACP, as well as attorneys Steve Crossland and Thea Jennings of the Washington State Bar Association. Together, they review the licensing, permissible scope of practice, and continuing education requirements for these new LLLT Paralegals.
Ann Atkinson is the current President of the National Association of Legal Assistants and Senior public finance paralegal at Kutak Rock, LLP. Ann has also served on the Board of Directors for the Nebraska Paralegal Association and is a former adjunct professor for Metro Community College in Omaha, Nebraska. She is a prominent author and presenter in matters paralegal.
Steve Crossland has been a practicing attorney for nearly 40 years. He is the former President of the Washington State Bar Association and has been dealing with the unauthorized practice of law and access to justice for 21 years. He is also the recipient of WSBA's Award of Merit and the current Chair for the Limited License Legal Technician Board.
Thea Jennings is the LLLT Program Lead and Staff Liaison to the LLLT Board at the WSBA. She began her career at the WSBA in 2008 as a paralegal in the Office of Disciplinary Counsel, the disciplinary body that prosecutes ethical violations by Washington attorneys. In 2006, she received her post-baccalaureate certificate in paralegal studies from the University of Washington, where she also received her undergraduate degree in English and French studies.
Special thanks to our sponsors, NALA and ServeNow.
Ann Atkinson is the current President of the National Association of Legal Assistants and Senior public finance paralegal at Kutak Rock, LLP. Ann has also served on the Board of Directors for the Nebraska Paralegal Association and is a former adjunct professor for Metro Community College in Omaha, Nebraska. She is a prominent author and presenter in matters paralegal.
Steve Crossland has been a practicing attorney for nearly 40 years. He is the former President of the Washington State Bar Association and has been dealing with the unauthorized practice of law and access to justice for 21 years. He is also the recipient of WSBA's Award of Merit and the current Chair for the Limited License Legal Technician Board.
Thea Jennings is the LLLT Program Lead and Staff Liaison to the LLLT Board at the WSBA. She began her career at the WSBA in 2008 as a paralegal in the Office of Disciplinary Counsel, the disciplinary body that prosecutes ethical violations by Washington attorneys. In 2006, she received her post-baccalaureate certificate in paralegal studies from the University of Washington, where she also received her undergraduate degree in English and French studies.
Special thanks to our sponsors, NALA and ServeNow.
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NLRB: Northwestern football players are university employees
[JURIST] The Chicago office for the National Labor Relations Board (NLRB) [official website] on Wednesday ruled [report, pdf] that football players at Northwestern University qualify as employees, and therefore have the right to unionize. In its finding, the NLRB used the "right to control" test, which considers a variety of factors in determining the level of control an employer has over an alleged employee. First, the board found that "grant-in-aid scholarship football players perform services for the benefit of the...
Federal appeals court upholds insider trading conviction
[JURIST] The US Court of Appeals for the Second Circuit [official website] on Tuesday affirmed [opinion, PDF] the insider trading conviction of former Goldman Sachs [corporate website] director Rajat Gupta. Judge Amalya Kearse rejected Gupta's claim that wiretap evidence should not have been admitted against him. Gupta was convicted of three counts of securities fraud and one count of conspiracy to commit securities fraud in June 2012, primarily upon the basis of statements he made by phone to Raj Rajaratnam...
Source: http://jurist.org/paperchase/2014/03/federal-appeals-court-upholds-insider-trading-conviction.php
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LawBiz® Legal Pad On the Road!: Cellphones
Do you ever talk on the phone while you drive? In today's clip, Ed warns law firms that they could be exposed to legal liability if one of their attorneys causes an accident while using his or her phone behind the wheel.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/9IFUqbRw9Wc/
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A Record For Back-To-Back Arrests?
There are lots of times in a person’s life when the best course of action is to just keep quiet. This would seem to be among the most obvious example of just such a case, but not to this gent. As reported by The Star-Ledger (via nj.com):
Thomas Arahill, 55, was arrested and charged first with threatening a man with a crowbar during a dispute Monday afternoon, said Capt. Thomas Dellane.
Officers responded to Gaff Road in reference to a fight call at 2 p.m., where they made contact with a man who said Arahill had attempted to use a metal bar as a weapon, the police said.
Arahill was arrested, charged with possession of a weapon for an unlawful purpose and taken to police headquarters for processing, authorities said.
All you have to do is just keep quiet and you’ll be out of there in no time…
However, after he was released, Arahill saw two of the officers who had arrested him in the town hall lobby, and began threatening them, Dellane said. Arahill refused to leave the area, the captain added.
Doh!
Arahill was taken back into custody and charged with a disorderly persons offense for the loud and threatening behavior, Dellane said.
No release this time.
Arahill was taken to the Ocean County Jail, where he was held on $1,500 bail, authorities added.
Click here for the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/yiwRZaDCQhM/asdf-12.html
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Thursday, March 27, 2014
Defense counsel protest Congressional cut in funds
Can you imagine criminal defense lawyers going on strike because Congress decreased the money available for Legal Aid? Justice delayed is justice denied!
Our brethren in England have done just that! And just before the 800th anniversary of the signing of the Magna Carta, the basis of our entire legal system!
England leads the way once again.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/-ypkNUfU2RI/
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OPINION: A Calculation of Fido's Value Must Include Warm, Fuzzy Factor
Awarding traditional property damages in cases of injured or killed pets falls short.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631180028&rss=rss_nlj
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How to Manage Your Paralegal Career in Today’s Economy
Today's economy can be challenging for paralegals. Make sure you're taking the right steps to advance your career. On this episode of the Paralegal Voice, host Vicki Voisin interviews future President of NALS Karen McElroy. Together they discuss what you should be doing as a paralegal to get ahead and stay ahead in this job market.
Karen McElroy will become the President of NALS at the end of February 2014. She has been working in law since 1981 in a multitude of capacities including legal secretary, legal assistant, and paralegal. Karen is a veteran of the U.S. Air Force and Ohio Air National Guard. Special thanks to our sponsor, NALA.
Karen McElroy will become the President of NALS at the end of February 2014. She has been working in law since 1981 in a multitude of capacities including legal secretary, legal assistant, and paralegal. Karen is a veteran of the U.S. Air Force and Ohio Air National Guard. Special thanks to our sponsor, NALA.
Source: http://legaltalknetwork.com/podcasts/paralegal-voice/2014/02/manage-paralegal-career-todays-economy
United States Supreme Court Resolves Circuit Split and Narrows Scope of SLUSA
In Chadbourne & Parke LLP v. Troice, Nos. 12-79, 12-86 and 12-88, 2014 U.S. LEXIS 1644 (U.S. Feb. 26, 2014), the Supreme Court of the United States resolved a split in the circuits regarding whether alleged misrepresentations were made “in connection with the purchase or sale of a covered security” for purposes of the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”), 15 U.S.C. § 78bb(f)(1)(A). The Court held that a “misrepresentation or omission of a material fact” is made “in connection with the purchase or sale of a covered security” only if the misrepresentation is “material” to the plaintiff’s decision to buy or sell that covered security. This decision narrows the scope of removal and preclusion of state law securities fraud class actions by the federal courts under SLUSA.
Plaintiffs were private investors who brought state law class claims against defendant firms and individuals in Louisiana and Texas state courts, alleging that defendants had assisted Stanford International Bank (the “Bank”) and Alan Stanford (“Stanford”) in perpetrating a fraud on the plaintiffs. Stanford had run a multibillion dollar Ponzi scheme through which he and his affiliates sold to plaintiffs Bank certificates of deposit (“CDs”). The CDs were debt assets that promised a fixed rate of return. Plaintiffs expected Stanford to use the money it received to buy assets and invest in publicly traded securities. Instead, Stanford used the money to repay old debts, live a lavish lifestyle and finance speculative real estate ventures.
Defendants removed the state law class actions to federal court and sought dismissal under SLUSA. SLUSA generally authorizes the removal to federal court and dismissal of state law class actions that allege misrepresentations or misleading omissions in connection with the purchase or sale of “covered securities.” SLUSA adopts the definition of “covered security” in the Section 18 of the Securities Act of 1933, 15 U.S.C. § 77r, as one that is “listed, or authorized for listing, on [various national stock exchanges]” or one that is “issued by an investment company that is registered . . . under the Investment Company Act of 1940.”
The United States District Court for the Northern District of Texas granted defendants’ motion to dismiss, concluding that plaintiffs’ claims were precluded under SLUSA. The district court acknowledged that the CDs were not “covered securities” under SLUSA because the CDs were not “traded nationally [or] listed on a regulated national exchange.” However, the district court noted that each complaint alleged that the fraud included misrepresentations that the Bank held significant holdings in covered securities, which made the CDs more secure. The district court thus held that this provided the necessary “connection” between plaintiffs’ state law fraud claims and “transactions in covered securities,” and that the claims were therefore precluded by SLUSA.
As previously reported here, the United States Court of Appeals for the Fifth Circuit reversed. The Fifth Circuit agreed with the district court’s determination that the complaints described misrepresentations about covered securities. The Fifth Circuit held, however, that the “heart” of the allegedly fraudulent scheme centered on representations that the uncovered CDs were safe and secure. The Fifth Circuit held the falsehoods concerning the covered securities were too “tangentially related” to the “crux” of the fraud to be sufficiently “in connection with” the purchase or sale of a covered security for purposes of SLUSA.
The Supreme Court affirmed. The Court first noted that SLUSA focuses on transactions in covered securities, not uncovered securities. The Court also observed that the pertinent phrase of SLUSA, “material fact in connection with the purchase or sale,” suggests a connection between the misrepresentation or omission and a purchase or sale that “matters.” The Court determined that a connection “matters” where the misrepresentation makes a “significant difference to a person’s decision to purchase or sell a covered security,” but not an uncovered security. Plaintiffs’ complaints alleged misrepresentations regarding the Bank’s ownership of covered securities, but did not allege misrepresentations in connection with the “purchase or sale of a covered security” by plaintiffs. Thus, the complaints did not provide the necessary “connection” between the materiality of the misstatements and the “purchase or sale of a covered security.”
The Court also noted that its interpretation of the “in connection with” language in SLUSA should not significantly impair the SEC’s enforcement powers for violations of Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78j(b), because the definition of “security” under the Exchange Act is broader than that of “covered security” under SLUSA.
The Court’s decision in Chadbourne would appear to limit SLUSA to cases where plaintiffs allegedly purchased, sold or held (see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71 (2006); see blog article here) “covered securities.” Class actions where plaintiffs allegedly purchased, sold or held uncovered securities, even if covered securities are lurking in the background, may proceed in state court.
DePuy Hip Implant Deal Excludes Thousands
Just weeks after DePuy Orthopaedics Inc. announced a $2.5 billion settlement to resolve the bulk of the litigation over its recalled hip implants, some lawyers have raised concerns about the thousands of patients excluded from the deal and the process that determines how the plaintiffs will be compensated.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631268495&rss=rss_nlj
The Benefits of Tech Automation: Why Attorneys Should Opt In
On any given day, we do a large number of repetitive tasks on our computers, tablets and smartphones. We also type the same email messages over and over, insert the same language into legal documents and open the same web pages on a regular basis. By automating some of these repetitive actions, we can become more productive and obtain peace of mind. In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss simple ways to benefit from automating repetitive actions, available tools to use, and how to get started in simplifying your life in small and helpful ways.
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How Bad Ideas Grow Legs
Last January, Instapundit lawprof Glenn Reynolds wrote a short essay that became the darling of many folks who take an interest in criminal justice issues entitled Ham Sandwich Nation: Due Process When Everything is a Crime. To be kind, it was a simplistic rehash of long-time, discredited silver-bullet solutions to complex problems. The only virtue was that it came from Reynolds, who was a law professor and thus credible by definition even though he was dabbling at the edges of an area of law about which he knew nothing.
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:
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:
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:
© 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.
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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