Wednesday, December 5, 2012
Israel rejects Palestinian Authority statehood despite UN resolution
Kozinksi: The Drugs and Guns Presumption Lives
Two teenage brothers drove their car up to the United States Border Patrol Checkpoint near Whetstone, Arizona, about 100 miles from the Arizona/Mexico border. A drug dog alerted to the presence of narcotics in the car. The car was directed to a second check point, and the two were asked to exit the car. They did so, and they consented to a search of the car. The drug dogs were then unable to find any drugs in the car and did not alert to any drugs on their persons. However, an officer observed that one of the brothers was acting nervous and repeatedly “touched his abdomen area.” Officers decided to frisk the two brothers for weapons.During the frisk, the officers felt an object through one suspect’s shirt. They lifted off the suspect’s shirt and found a “brick-shaped object taped on the Defendant’s abdomen.” The then found a similar brick-shaped object taped to the other suspect’s abdomen. The opinion isn’t very clear as to exactly what happened next, but it seems that they ripped off the tape and took the brick-shaped objects, which contained marijuana. (The opinion just says that at that point the officers “seized the marijuana.”) The brothers were then charged with possessing marijuana, and they challenged the frisks as violating the Fourth Amendment.
The Ninth Circuit divided on whether the officers acted properly. The majority, Judge N.R. Smith joined by Judge Christen, concludes that the officers acted improperly and violated the Fourth Amendment because they lacked reason to think that there was a gun present as opposed to drugs.
An intellectually honest decision, particularly given how easy it would have been for the officers to make up a rationale to justify their fear that the brothers were armed. They didn't. They told the truth. The law worked. Well, at least two-third of the way.
Judge Kozinski dissents, reasoning that where there may be drugs, there may be guns, justifying a frisk of the suspects for guns.
While Judge Kozinski is often on the side of the angels when it comes to adhering to doctrine, even though it lets the bad guy walk, not this time. This time, its the unwritten presumption that wherever there are drugs, the law should presume there are guns.
Common sense tells us that people engaged in legitimate business don’t tape bricks to their bodies. This would be true even if the encounter had been on a street corner in Pocatello, but at a checkpoint on a highway heading from the Mexican border, after a dog had alerted to possible drugs? Any officer who sent I.E.V. on his way without finding out what he was hiding under his shirt should have been fired for incompetence.
There it is, the enemy of proof and the cheap backdoor when there is no reason to be had: common sense. When you can't explain something logically, just chalk it up to common sense and leap right over that huge gap.
Of course, there is a much simpler answer to the issue of incompetent border patrol agents letting a suspect go because he's constrained by the Constitution. Got probable cause? Get a warrant. Too much work? Too nebulous a justification for a warrant? Bummer. That darn Constitution keeps getting in the way of catching the bad guys. But Alex, you know this is how it works. You know sometimes the guilty go free. You've even held as much. Why eschew the Constitution this time?
The bugaboo of drugs has given rise to no shortage of convenient myths that the judiciary has embraced to create exceptions to the Constitution. Guns and drugs are integrally connected. Dogs are magic and honest and cute as the dickens. Cars with drugs emit odors that can be smelled from great distances and at high speeds. Cars with drugs aren't covered by the Fourth Amendment in any event, because, well, they're not.
My utter rejection of the use of "common sense" to leap tall buildings and logical and evidentiary gaps is been explained many times before. There is no such thing. It's a really cool fallacy used to appeal to facile assumption when facts and the laws of physics won't support the conclusion. It's pulled out of the bag of tricks when reasonable doubt stands in the way of conviction. Never use "common sense" around here unless you want to get an eyeful.
So drug dealers don't use guns? Of course they do, when they do. And when they don't, they don't. And when the drugs are taped to the abdomen of mules, like these brothers, there is little chance anybody put a gun on them as well.
But who cares? The question isn't how many facile assumptions can be made to justify circumvention of the Constitution, but whether the officers involved had a reason to fear for their safety. They didn't. They said they didn't. They offered nothing to suggest, despite their lack of subjective fear, there was an objective basis to believe they did, or should. Judge Kozinski's leap to the contrary, there is no intrinsic rule of nature that anyone in possession of drugs is presumed to be armed, and yet Kozinski chides (he does that, sometimes) the majority of his panel for being "out of touch":
It’s easy enough, sitting safely in our chambers, protected by U.S. Marshals with guns and dogs, surrounded by concrete barriers and security cameras, to say that officers in the field had no cause to fear for their safety. But if we’d been there when I.E.V. and his brother pulled up in their car, heard the police dog alert and seen one of the suspects fidget like he was reaching for a weapon, I’d have dived for cover into the nearest ditch, and my guess is I wouldn’t have been the first one there.
This would have been such a great benchslap, if only he came out the other way. But there is another failing to Judge Kozinski's dissent that goes unnoticed. Not until the officers searched and found a brick of marijuana taped to the defendant's abdomen do they have evidence of drugs. Search first, then justify the legality of the search by what's found? Not around these parts, cowboy.
Perhaps I'm naive (as I've been accused a few times lately), but I've come to expect better of Judge Kozinski, who is usually on the more fearless side of constitutional interpretation. Come on, Judge. Pick yourself up, dust yourself off and get your judicial butt out of that ditch. You're right, you probably wouldn't have been the first one there, but do you really want to hang out in a ditch with others who wring their hands out of fear of the consequences of adhering to the Constitution? I didn't think so.
© 2012 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/2012/12/01/kozinksi-the-drugs-and-guns-presumption-lives.aspx?ref=rss
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THE PRACTICE: SEC enforcement: What has gone wrong?
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202579880282&rss=rss_nlj
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Content Marketing for Lawyers
Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2012/08/content-marketing-for-lawyers/
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5 Vital Components to a Successful Custodian Interview
Tuesday, December 4, 2012
Best Billable Hour Practices for Paralegals
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The LinkedIn Lawyer
Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2012/06/the-linkedin-lawyer/
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Ex-Programmer Avoids Jail Time In NY Fed Code Theft
Source: http://blogs.wsj.com/law/2012/12/04/ex-programmer-avoids-jail-time-in-ny-fed-code-theft/?mod=WSJBlog
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Hiring Your First Employee
Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2012/03/hiring-your-first-employee/
The U.S. Supreme Court’s Golan v. Holder Decision
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He got it one piece at a time …
And it didn’t cost him a dime. The words of a 1976 novelty song by Johnny Cash come to mind in the case of a Navy officer accused of building his own airplane from parts he ordered through his Navy job.
Lt. Cmdr. Christopher Lee Tappen has pleaded guilty to filing a false report and has admitted to spending about $74,000 of taxpayers’ money for items he kept for himself.
When investigators looked through Tappen’s house and hangar in California, they found tools, parts and a partially completed Velocity airplane. A former Navy pilot, Tappen has a degree in aerospace engineering.
The Virginian-Pilot reports Tappen allegedly ordered the tools, airplane parts and other items while he was stationed at a Navy SEALS base in Norfolk. He faces up to five years in prison when he is sentenced next year in Norfolk federal court.
Source: http://valawyersweekly.com/vlwblog/2012/11/29/he-got-it-one-piece-at-a-time/
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Paralegal Career 101: Dealing with Work-Related Stress
Harvesting Intellectual Property: Inspired Beginnings and "Work-Makes-Work," Two Stages in the Creative Process of Artists and Innovators
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/01/harvesting-intellectual-property/
Perjury penalty overcome by restoration of rights, AG says
Two recent opinions from Attorney General Ken Cuccinelli should come as a relief for a member of the Wise County School Board.
The opinions also appear to strengthen the governor’s power to restore civil rights to former felons.
Rocky Cantrell’s ability to serve as an elected school board member was called into question because of a felony perjury conviction 19 years ago. The state perjury law appeared to bar Cantrell from holding public office “forever.”
Cantrell, however, had his political rights restored by Gov. Mark Warner in 2002.
Some local officials questioned whether the governor’s power to “remove political disabilities” under the Constitution could trump the “forever” language of the perjury statute. Commonwealth’s Attorney Ron Elkins requested a formal opinion from the attorney general.
Cuccinelli believes the governor’s constitutional authority carries more weight than the language of the statute. The word “forever” as used in the perjury statute “is limited to the time before a person convicted of perjury has his political rights restored by the governor,” Cuccinelli concluded.
In a separate opinion, Cuccinelli said the governor’s restoration of rights also would permit a perjury convict to serve on juries.
Cantrell was convicted of perjury in 1993 for misstatements about his residence on election forms where he sought to run for office in the town of Pound.
Cantrell was convicted this summer of striking a county supervisor in a tussle at the county courthouse.
“I’m glad we have an answer,” Elkins said. He said Cuccinelli’s opinion is “well-reasoned,” but he said the statutory language is confusing. “It is an obvious hole in the code that needs to be plugged,” he said in an email.
Elkins said there’s logic in the “forever” language: “I find it hard to believe a person convicted of lying under oath can then take an oath to be a juror or run for office and it have any substance.”
Circuit Court Clerk Jack Kennedy, who requested the advice on jury service, said the AG’s opinion makes things easier. Clarification of the word “forever” relieves clerks from concern about jury pools having an individual with voting rights restored after having been previously convicted of perjury.
“The only limitation appears to be the requirement to petition to restore gun rights after the governor restores civil rights,” Kennedy said in an email.
Cantrell did not immediately respond to a request for comment.
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Monday, December 3, 2012
The Last Man Convicted
From the New York Times:
In the uncertain weeks after Colorado’s vote to legalize small amounts of marijuana for recreational use, the answer in hundreds of minor drug cases depends less on the law than on location.Some will wonder why this doesn't offend Equal Protection, with some "perps" walking away free while others need to wonder who will put money in their commissary account. The short answer is that the benefit conferred by the exercise of police and prosecutorial discretion is a positive, rather than the lack of it being a negative. Until it's legal, it's illegal, and those "conservative" (which I take to mean tough on crime antagonists as opposed to smart on crime conservatives) prosecutors who don't think it's a good idea will do what the law allows them to do, up to the very last second.Hundreds of misdemeanor marijuana cases are already being dropped here and in Washington State, which approved a similar measure. Police departments have stopped charging adults 21 years and older for small-scale possession that will be legally sanctioned once the laws take effect in the coming weeks.
But prosecutors in more conservative precincts in Colorado have vowed to press ahead with existing marijuana cases and are still citing people for possession. At the same time, several towns from the Denver suburbs to the Western mountains are voting to block new, state-licensed retail marijuana shops from opening in their communities.
But a happy fellow arrested today will likely still be the subject of prosecution after the law has gone into effect. What's a judge to do? What's a jury to do? What legitimate purpose is served by applying the technical mandate of the law, that it was a crime when it happened though it's not a crime anymore? None of the legitimate sentencing purposes can be served, yet the law will mandate a sentence be imposed if convicted.
Someone will end up being the last person in Colorado and Washington convicted of the crime of possession of marijuana. He may end up being a hero of sorts, the last soul sacrificed on the alter of the drug war, or at least the marijuana piece of it. Of course, he's not a hero, but just the last poor schmuck.
In New York, there is a motion to dismiss in the interest of justice, a so-called Clayton Motion stemming from its derivation from a case handled by Eastern District federal district court Judge Fred Block, which has since been reduced to statute. It provides a backdoor to toss a case where no legitimate purpose is served in pursuing it, or it's just plain wrong.
While the voters of Colorado and Washington have come to the conclusion that they've had enough of locking people away, ruining lives, squandering funds, on marijuana, voters in other states have yet to come to that epiphany. So what is soon to be lawful there remains criminal elsewhere.
This creates a problem for everyone. It's a lot like the tidal wave of sanity that gave rise to states finally allowing same sex marriage, even though the American imams remained adamant that it would invoke the wrath of God. The fear of being ahead of the curve is so strong that even the New York Times couldn't muster the fortitude to speak truth.
While the enlightened land of ice cold spring water from the mountains to be used to make tasteless beer will celebrate the lighting of hemp, juries in the Bronx, in Des Moines, in Sarasota will be instructed that if they find beyond a reasonable doubt, whatever that means, the defendant to have knowingly possessed the demon weed, they must convict. Prosecutors will stand tall as they preach the evils of the leaf of this intoxicating plant, destroyer of families, neighborhoods, futures. The rhetoric will be forceful as ever, and yet the guys in Seattle and Boulder will be happily toking away, muttering "don't bogart that joint."
How to reconcile this conflict?
Laws crafted by legislators who voted shortly after watching Reefer Madness remain on the books, mostly because legislators need to get re-elected and both enjoy the perks of tough on crime rhetoric and lack the spine to admit that they've been full of it all along. Eventually, polls will push them to reverse their votes and figure out that
Until then, it's left to prosecutors, judges and yes, even juries, in states, in cities, across America, to decide whether their duty is to honor laws borne of hysteria, fear and a war no longer being fought. Remember, there will be eventually be a last man convicted of criminal possession of marijuana. There will also be a last prosecutor, judge and perhaps jury who did the convicting. Do you really want to be that last person?
© 2012 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/2012/12/02/the-last-man-convicted.aspx?ref=rss
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How Medical Apology Programs Harm Patients
Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/06/how-medical-apology-programs-harm-patients/
Legal Translation Services for Law Firms
Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2012/06/legal-translation-services-for-law-firms/
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He got it one piece at a time …
And it didn’t cost him a dime. The words of a 1976 novelty song by Johnny Cash come to mind in the case of a Navy officer accused of building his own airplane from parts he ordered through his Navy job.
Lt. Cmdr. Christopher Lee Tappen has pleaded guilty to filing a false report and has admitted to spending about $74,000 of taxpayers’ money for items he kept for himself.
When investigators looked through Tappen’s house and hangar in California, they found tools, parts and a partially completed Velocity airplane. A former Navy pilot, Tappen has a degree in aerospace engineering.
The Virginian-Pilot reports Tappen allegedly ordered the tools, airplane parts and other items while he was stationed at a Navy SEALS base in Norfolk. He faces up to five years in prison when he is sentenced next year in Norfolk federal court.
Source: http://valawyersweekly.com/vlwblog/2012/11/29/he-got-it-one-piece-at-a-time/
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Key changes to Patent Law
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/09/key-changes-to-patent-law/
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BU School of Law’s Semester-in-Practice Program
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Recommendations for a Social, Mobile and Global Legal Profession
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Netherlands court bans Samsung smartphones that infringe on Apple patents
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Sunday, December 2, 2012
Law Porn in the New York Times
While it's not really law porn, only for lack of glossy pictures of naked lawprofs, the content of Mitchell's opus would make any marketeer blush. It was shameless. Rather than rush here to expose this nonsense, I waited for Paul Campos at Inside the Law School Scam to deconstruct it, and I was well rewarded with gems like this:Case Western Law Dean Lawrence Mitchell in @NYTimes op-ed: Do these hotpants make my butt look fat? http://tinyurl.com/crdcwgd
But then, why bother to post here what Campos has already posted? When I stopped by his blog, I found another post, one that reminded me a great deal of this post, that demanded wider airing. It's an email from a young lawyer, and it reflects things I've heard far too often.Taking potshots at unnamed critics is fun.
The hysteria has masked some important realities and created an environment in which some of the brightest potential lawyers are, largely irrationally, forgoing the possibility of a rich, rewarding and, yes, profitable, career.
Translation: Getting people to spend $200,000 for a 50/50 shot at a legal job of any kind is getting harder every day.
The starting point is the job market. It’s bad. It’s bad in many industries. “Bad,” in law, means that most students will have trouble finding a first job, especially at law firms. But a little historical perspective will reveal that the law job market has been bad — very bad — before. To take the most recent low before this era, in 1998, 55 percent of law graduates started in law firms. In 2011, that number was 50 percent. A 9 percent decline from a previous low during the worst economic conditions in decades hardly seems catastrophic. And this statistic ignores the other jobs lawyers do.
If we define “law graduates starting in law firms” in the broadest way possible, by counting every single job any law graduate in the class of 2011 got at a law firm, 41 percent of law graduates whose employment outcomes were recorded (this data is missing for 4 percent of ABA law graduates in the 2011 class) got a job with a law firm. If we define “starting in law firms” to mean “got jobs as lawyers with law firms,” which is surely how readers will interpret that phrase – that is, if we don’t count people who got jobs as secretaries, paralegals and clerks, i.e., jobs they could have gotten without acquiring a law degree first – that percentage drops to 34.7 percent. If we limit the phrase to full-time lawyer jobs, the percentage drops to 32 percent. If we exclude new grads who listed themselves as members of “firms” consisting of one lawyer (themselves) that figure becomes 29.5 percent. Statistics here.
Then reality really hit when I entered the job market. It was not good. You could find jobs but for $40,000 to $50,000. At first I thought that it was me, that I had not done the right things, ie kiss up to the right people, done unpaid internships, etc. So I decided to hang up my own shingle. I opened my own office, and tried to make a go of it. It has been an incredibly difficult five years. For many of those years I would blame myself for not doing better; I began to believe that there was huge mistake that I was making or I had made that had alienated clients, or that I wasn't advertising properly, or any number of things that could be attributed to an office that produced income, but not that much. I worked long hours by myself trying to satisfy clients that could not be satisfied. I panicked at little mistakes, and thought the worst case scenarios for every misstep. It was a miserable existence and it put me in a depressive state with bouts of anxiety that were difficult to control. For us old guys, like me and Mitchell, we're debating the virtues of a profession. For the writer of this email to Campos, it's his life. Mitchell waxes vague. The writer lies awake in his bed at night wondering how he will feed his children in the morning. I'm damn angry about this.I started law school in 2002 and graduated in 2005. Prior to going to law school I had heard rumblings about how being an attorney was not as profitable as the schools made it out to be. I was also warned by other attorneys that it was very stressful. Unfortunately that information did not sink in and I bought the hype that [average-ranked law school] offered. So I spent three good years of my life working on a degree that I believe should have only taken two.
It's not that making the decision to go to law school, to become a lawyer, has no virtue. It is, or at least used to be and can be once again, a worthwhile and important profession. It's that the marketeering, the law porn, reflected in Mitchell's empty prose is designed to do one thing, and one thing only: obscure the downside and deceive the unduly optimistic.
As much as I may rail against deceptive legal marketers for pushing their naive, ignorant or scummy lawyer-clients ahead in the race to the bottom, their smiling faces have nothing on this law dean. His words will comfort parents who remember lawyers as being prominent members of the community, with fine houses and manicured lawns, who want nothing more for their children than to be secure in a comfortable life, guaranteed by generations of vested Solomons.
And their children, unclear of where their life should be and seeking refuge from a troubled world, assume that following the crowd will assure them that they will get that BMW and corner office. All those smiling faces on law school websites can't be wrong.
Yet the email to Campos reflects the brutal reality. The writer concedes the depression his choice brought him, and later in the email, admits to thoughts of doing harm to himself. Would it bother you greatly, Dean Mitchell, is you found out some kid read your op-ed, became a lawyer, and took his life? Or would that just be collateral damage to the more important cause of filling your law schools empty seats?
It's time to make it plain. Cut the crap. These are real people's lives you're screwing with. Law deans don't get a free pass on bullshit any more than anyone else.
© 2012 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/2012/11/30/law-porn-in-the-new-york-times.aspx?ref=rss
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Legal Talk Network Live at LegalTechNY 2012-Onit’s Eric Elman Spotlights Onit Apps
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Defense Attorneys Turning to Social Media
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The Eureka Moment: How Big Law Has Learned to Love Legal Practice Management
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Securing Electronic Law Firm Data for Big and Small Firms
Technology In Need Of A Constitutional Moment (Pants Update)
Unfortunately, the story rather confusingly switches back and forth between considering at least three different legal questions:While it's true that the article is a hodgepodge of constitutional questions arising from the technology surrounding cellphones, smartphones, content retained on servers and cell tower tracking capabilities, he misses the point of the article, and the issues that matter to mortals.1) What privacy protections the Fourth Amendment or statutes extend to the cell-location records generated by phone companies and stored by them, if the government comes to the phone company and wants the records of where the phone was located.
2) What privacy protections the Fourth Amendment or statutes extend to copies of text messages or e-mails that providers may have stored, if the government comes to the provider and wants to obtain copies of a suspect’s text messages or e-mails.
3) Whether the Fourth Amendment permits a warrantless search of the cell phone — and if so, how thoroughly — incident to a valid arrest.
There is no question of technology's place in our lives, having become integral to all we do. There is similarly no question that the law has proven itself utterly incapable of either keeping pace with technology on an ad hoc basis or arriving at an overarching doctrine that suffices to address our constitutional rights in the face of ever-changing, ever-more intrusive, technology.
The article is muddled because the law is muddled. The article is muddled because the way we conduct our lives, our affairs, doesn't conform to an academic division of issues as if the magic of our cellphones has entirely different legal consequences if we turn left instead of right, stand up or sit down, read the content of text messages on the screen or read them from the printouts of our cellphone carrier. And before anybody can figure out what we can rely on, technology has moved on to something entirely new and different, leaving us perpetually in doubt and the law perpetually a few steps behind.
What distinguishes the issue when it comes to cellphones is that everyone has one, whether it's the latest and greatest from Apple or a Jitterbug. Television commercials tout what they can do for us. No mention is made what they can do to us. And given the abject confusion and judicial state of flux, no one can say with any certainty whether these devices that reflect nearly every aspect of our lives are private or a reservoir of enormously personal information just waiting for law enforcement to access.As technology races ahead of the law, courts and lawmakers are still trying to figure out how to think about the often intimate data that cellphones contain, said Peter P. Swire, a law professor at Ohio State University. Neither the 1986 statute nor the Constitution, he said, could have anticipated how much information cellphones may contain, including detailed records of people’s travels and diagrams of their friends.
“It didn’t take into account what the modern cellphone has — your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff,” Mr. Swire said.
The Times article notes that a Senate committee will consider changes to the law.
Remember 1986? Personal computers were first breaking into the office market, with those fine '88's and their 10 meg hard drive that "nobody could ever use up that much memory," with 3.5" floppies Cellphones by a guy name Motorola looked like WWII walkie talkies, took up half your briefcase (those were leather bags with handles that men used before knapsacks) and cost $12 a minute to use, whether you reached another phone or not. Nobody even dreamed of a 1200 baud external modem. Okay, maybe they dreamed.The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.
A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old.
Those were simpler times, and came up with simpler solutions. What they failed to come up with is a comprehensive statute that would assure that a Fourth Amendment, conceived for the physical world, would fulfill our needs for privacy from governmental intrusion in a virtual world.
The courts have attempted to address technology by analogy to its IRL decisions, which is a game that hasn't played out well.
Orin has argued for what he calls "technology neutral" doctrine, where the same old Fourth Amendment search and seizure law that gave us the automobile exception becomes the foundation for our constitutional rights going forward. Technology be damned, whoever makes the analogy that a judge finds snappier wins the day, and with it, our rights. Or perhaps, whoever writes a law review article that supports a judge's preconceived notion of an appropriate outcome gets a citation (which can be turned in for cool prizes by lawprofs).Judges across the nation have written tomes about whether a cellphone is akin to a “container” — like a suitcase stuffed with marijuana that the police might find in the trunk of a car — or whether, as the judge in the Rhode Island murder case suggested, it is more comparable to a face-to-face conversation. That judge, Judith C. Savage, described text messages as “raw, unvarnished and immediate, revealing the most intimate of thoughts and emotions.” That is why, she said, citizens can reasonably expect them to be private.
Orin is right to characterize the article as "confusing," though his qualifier of "somewhat" seems a bit tepid. It's a mess because the law is a mess. Neither court, cop nor individual can count on constitutional protection of our most pervasive and private information, and that's not good enough for a society that purports to have a Constitution that was enacted to assure us of privacy from the government.
Will the Senate, a political body trying to thread its way between deeply conflicted purposes combined with a heavy dose of self-interest, come up with change that protects us? I wouldn't bet on it. But the courts have made a total disaster of things, if one adheres to the idea that we have a right to privacy, with the support and comfort of clear thinking academics.
At least the New York Times front page article will put the mess in front of a lot of coffee drinking folks, who might come to grips with the issues raised by our beloved smartphones. Maybe some of them will care enough to realize that whether the newest iPhone has an earphone jack on the top or bottom isn't their biggest issue. Maybe it will dawn on the public that if they don't start paying attention to what their phones are giving away, they won't have any privacy left.
Update: As if on cue, a post from Grits for Breakfast brings a ruling out of Amarillo Seventh Court of Appeals, providing this:
I leave y'all with this quote from the opinion:And it took a court to decide this. We're doomed.While assaults upon the Fourth Amendment and article I, § 9 of the United States and Texas Constitutions regularly occur, the one rebuffed by the trial court here is sustained. A cell phone is not a pair of pants.
© 2012 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/2012/11/26/technology-in-need-of-a-constitutional-moment-.aspx?ref=rss
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Supreme Court Hears Case Asking: Who's A Boss?
The definition is important because employers are automatically liable for damages in most cases in which a supervisor harasses a subordinate. At issue in Monday's arguments at the Supreme Court was a lower court decision that declared that only a person with the ability to fire or hire employees can be considered a supervisor.
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Source: http://www.npr.org/2012/11/26/165947466/whos-a-supervisor-when-it-comes-to-harassment?ft=1&f=1070
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Smartphone Security
Source: http://legaltalknetwork.com/podcasts/digital-detectives/2012/01/smartphone-security/
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Turn Your Solo Practice into a Highly Utilized Business
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The Firm Leader – Mastering Difficult Conversations
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Saturday, December 1, 2012
The iPad Practice
Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2012/08/the-ipad-practice/
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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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Hammock plaintiff hangs tight
A woman who occasionally rented out her Blue Ridge Mountain cabin must defend a negligence suit filed by a guest who said he was injured when he fell through a rotted hammock on the rental property.
Although the cabin was the defendant Rebecca Ramos’ primary residence, she still qualified as an innkeeper who owed an elevated duty of care to her paying guest, Peter Jarmak. And she should have known to inspect the hammock offered to guests, according to the 4th U.S. Circuit Court of Appeals. It vacated summary judgment for the owner in an unpublished opinion on Nov. 16.
“It is common knowledge that rope deteriorates over time when exposed to nature,” wrote Judge Dennis W. Shedd, and the owner’s testimony that she typically tried to put the hammock in a shed during inclement weather demonstrated her awareness of this fact.
Ramos could not specify when she last sat in the hammock before her guest fell, and a jury reasonably could conclude the owner’s “casual observation and occasional use of the hammock did not fulfill her innkeeper’s duty to perform an adequate inspection of her premises,” Shedd wrote.
A “mere visual examination or casual use” of the hammock did not discharge her duty to inspect, the panel majority said.
Judge Andre Davis dissented. He said the real issue was whether a reasonable jury could rationally find by a preponderance of the evidence that inspection of the hammock would have disclosed that the ropes were so weak they would not likely support a person such as Jarmak, who weighed more than 230 pounds.
Unlike the hammock, the evidence was in equipoise, and any jury verdict for the plaintiff would “amount to little more than a flip of a coin” for the lucky man, according to Davis.
–Deborah Elkins
Source: http://valawyersweekly.com/vlwblog/2012/11/29/hammock-plaintiff-hangs-tight/
Supreme Court hears arguments on appellate review for plain error
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Law Porn in the New York Times
While it's not really law porn, only for lack of glossy pictures of naked lawprofs, the content of Mitchell's opus would make any marketeer blush. It was shameless. Rather than rush here to expose this nonsense, I waited for Paul Campos at Inside the Law School Scam to deconstruct it, and I was well rewarded with gems like this:Case Western Law Dean Lawrence Mitchell in @NYTimes op-ed: Do these hotpants make my butt look fat? http://tinyurl.com/crdcwgd
But then, why bother to post here what Campos has already posted? When I stopped by his blog, I found another post, one that reminded me a great deal of this post, that demanded wider airing. It's an email from a young lawyer, and it reflects things I've heard far too often.Taking potshots at unnamed critics is fun.
The hysteria has masked some important realities and created an environment in which some of the brightest potential lawyers are, largely irrationally, forgoing the possibility of a rich, rewarding and, yes, profitable, career.
Translation: Getting people to spend $200,000 for a 50/50 shot at a legal job of any kind is getting harder every day.
The starting point is the job market. It’s bad. It’s bad in many industries. “Bad,” in law, means that most students will have trouble finding a first job, especially at law firms. But a little historical perspective will reveal that the law job market has been bad — very bad — before. To take the most recent low before this era, in 1998, 55 percent of law graduates started in law firms. In 2011, that number was 50 percent. A 9 percent decline from a previous low during the worst economic conditions in decades hardly seems catastrophic. And this statistic ignores the other jobs lawyers do.
If we define “law graduates starting in law firms” in the broadest way possible, by counting every single job any law graduate in the class of 2011 got at a law firm, 41 percent of law graduates whose employment outcomes were recorded (this data is missing for 4 percent of ABA law graduates in the 2011 class) got a job with a law firm. If we define “starting in law firms” to mean “got jobs as lawyers with law firms,” which is surely how readers will interpret that phrase – that is, if we don’t count people who got jobs as secretaries, paralegals and clerks, i.e., jobs they could have gotten without acquiring a law degree first – that percentage drops to 34.7 percent. If we limit the phrase to full-time lawyer jobs, the percentage drops to 32 percent. If we exclude new grads who listed themselves as members of “firms” consisting of one lawyer (themselves) that figure becomes 29.5 percent. Statistics here.
Then reality really hit when I entered the job market. It was not good. You could find jobs but for $40,000 to $50,000. At first I thought that it was me, that I had not done the right things, ie kiss up to the right people, done unpaid internships, etc. So I decided to hang up my own shingle. I opened my own office, and tried to make a go of it. It has been an incredibly difficult five years. For many of those years I would blame myself for not doing better; I began to believe that there was huge mistake that I was making or I had made that had alienated clients, or that I wasn't advertising properly, or any number of things that could be attributed to an office that produced income, but not that much. I worked long hours by myself trying to satisfy clients that could not be satisfied. I panicked at little mistakes, and thought the worst case scenarios for every misstep. It was a miserable existence and it put me in a depressive state with bouts of anxiety that were difficult to control. For us old guys, like me and Mitchell, we're debating the virtues of a profession. For the writer of this email to Campos, it's his life. Mitchell waxes vague. The writer lies awake in his bed at night wondering how he will feed his children in the morning. I'm damn angry about this.I started law school in 2002 and graduated in 2005. Prior to going to law school I had heard rumblings about how being an attorney was not as profitable as the schools made it out to be. I was also warned by other attorneys that it was very stressful. Unfortunately that information did not sink in and I bought the hype that [average-ranked law school] offered. So I spent three good years of my life working on a degree that I believe should have only taken two.
It's not that making the decision to go to law school, to become a lawyer, has no virtue. It is, or at least used to be and can be once again, a worthwhile and important profession. It's that the marketeering, the law porn, reflected in Mitchell's empty prose is designed to do one thing, and one thing only: obscure the downside and deceive the unduly optimistic.
As much as I may rail against deceptive legal marketers for pushing their naive, ignorant or scummy lawyer-clients ahead in the race to the bottom, their smiling faces have nothing on this law dean. His words will comfort parents who remember lawyers as being prominent members of the community, with fine houses and manicured lawns, who want nothing more for their children than to be secure in a comfortable life, guaranteed by generations of vested Solomons.
And their children, unclear of where their life should be and seeking refuge from a troubled world, assume that following the crowd will assure them that they will get that BMW and corner office. All those smiling faces on law school websites can't be wrong.
Yet the email to Campos reflects the brutal reality. The writer concedes the depression his choice brought him, and later in the email, admits to thoughts of doing harm to himself. Would it bother you greatly, Dean Mitchell, is you found out some kid read your op-ed, became a lawyer, and took his life? Or would that just be collateral damage to the more important cause of filling your law schools empty seats?
It's time to make it plain. Cut the crap. These are real people's lives you're screwing with. Law deans don't get a free pass on bullshit any more than anyone else.
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Source: http://blog.simplejustice.us/2012/11/30/law-porn-in-the-new-york-times.aspx?ref=rss
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Bed Bugs Litigation
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/08/bed-bugs-litigation/
DOMA down, but why?
The 1st Circuit today held that the Defense of Marriage Act's denial of federal benefits to married same-sex couples is unconstitutional. Massachusetts v. US Department of Health and Human Services (1st Cir 05/31/2012).
The federal Defense of Marriage Act (DOMA) Section 3 prevents same-sex married couples from filing joint tax returns, prevent a surviving spouse from collecting Social Security survivor benefits, and prevents federal employees from sharing medical benefits with same-sex spouses.
The trial court held that DOMA Section 3 is unconstitutional; the 1st Circuit affirmed.
The court's decision surveys equal protection and federalism issues and concludes that "governing precedents under both heads combine - not to create some new category of 'heightened scrutiny,' ..., but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage."
Thus the court gave less deference to, and "closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern."
The court concluded that denial of federal benefits to same-sex married couples "has not been adequately supported by any permissible federal interest."
The court stayed its mandate, thus extending the trial court's stay, in anticipation of the losing parties seeking certiorari in the US Supreme Court.
My view:
This is a decision, purportedly based on the US Constitution, that essentially avoids making an explicit connection to the text of the Constitution.
The idea is that states regulate marriage, the federal government may have something to say in this regard, but the reasons behind the federal government's actions didn't have enough oomph. No, there's no 10th amendment violation, and no violation of the Spending Clause. And no, there's no "strict scrutiny" going on. And no "new category of 'heightened scrutiny.'" But wait, let's give the legislation "closer scrutiny."
I'm no fan of DOMA, but it's not really clear to me what this court is doing.
[By the way, similar DOMA issues are pending in the 9th Circuit.]
Source: http://www.lawmemo.com/blog/2012/05/doma_down_but_w.html
Legal Talk Network Live at LegalTechNY 2012-LexisNexis’ Loretta Ruppert on Launch of Firm Manager
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FCC Gives Marketers Cover from Text-Message Claims
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Maximize Your Technology Investment
Source: http://legaltalknetwork.com/podcasts/tech-experts/2012/08/maximize-your-technology-investment/
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