A Round Tuit (13)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

There was a little terrorism thingy on Christmas Day, which you might've heard mentioned here and there.

On December 22, 2001, a Muslim extremist tried to destroy an airliner with explosives hidden in his shoes; the Transportation Security Administration ("Treating you like a terrorist in between coffee breaks since 2001") reacted by requiring travelers to remove their shoes during pre-flight security screenings in order to prevent anyone else from doing precisely the same thing in the future. This time around, after a Muslim extremist tried to destroy an airliner with explosives hidden in his underwear, it's a certainty that someone at the TSA was readying the "Please remove your skivvies" signage before someone else pointed out that seeing an entire line of Southwest Airlines passengers in the altogether would damage our national psyche more severely than al Qaeda ever could.

Nonetheless, in the wake of an embarrassing lapse in security, punishments must be meted-out — not to those responsible for the lapse, mind you, but to the traveling public. As Radley Balko observed, "TSA... equates hassle with safety. For all the crap they put us through, this guy still got some sort of explosive material on the plane from Amsterdam. He was stopped by law-abiding passengers. So TSA responds to all of this by . . . announcing plans to hassle law-abiding U.S. passengers even more." Brian Tannebaum was quick to note that the constant fear-mongering since the 9/11 attacks made such reactive regulation a foregone conclusion:

So over the holiday weekend some 23 year-old Nigerian student and son of a banker allegedly tries to blow up a plane bound for Detroit during the last hour of the flight. He fails miserably. And here come the buzz words - "Yemen," "Al-Qaida," "Terrorist."

He'll be tried, convicted and sentenced to life. That's the beginning and end of the discussion of the criminal defense angle of this story.

As more information was learned this weekend, more buzz words - "blankets," "pillows," "no taking a leak within one hour of landing."

....

Now that's all gone.

Last hour of flight - no blanket, no pillow, and hold the bladder.

After spending the weekend hearing about this new "safety" policy, I finally heard someone say it - FOX's Greta Van Susteren said the policy was "almost insane." Fascinating to hear that on a network that spends most of it's time accusing the new administration of coddling terrorists and rolling back the War on Terrorism. The response to her comment was that a pilot thought it was done for the sole purpose of:

"Doing something."

And there we have it.

....

Our new policy of no blankets, pillows, or pissing in the last hour of flight, is that ridiculous. Why not include that Nigerian students that have bankers as parents are prohibited from flying?

On a holiday weekend where we were led to believe we were again "unsafe," our leaders had to "do something." And they did.

The latest round of TSA rulemaking idiocy was widely-discussed in the legal blogosphere this week, principally amongst the bloggers at The Volokh Conspiracy. After the government announced that its vagueness about new security procedures was meant to make things more "unpredictable", Jonathan Adler was critical:

Whether or not “unpredictable” security measures may keep would-be terrorists on their toes, they will be a supreme annoyance for frequent travelers, and I’m unconvinced they will do much to enhance the safety of air travel. Forcing people to sit for an hour or more with nothing on their laps? Are they serious? And if travelers are supposed to expect “unpredictable” security measures, how will they distinguish between legitimate security measures and arbitrary commands from TSA personnel?

Airport security is already more show than substance. It’s an exercise of political theater that is supposed to make travelers feel more secure. I am unconvinced it even does that very well anymore, and from what I’ve heard thus far, the new measures are only going to make things worse.

Orin Kerr wasn't convinced that these new TSA procedures would make things more secure, but he also wasn't dismissing them out-of-hand as "theater":

I can’t gauge how effective airport security measures are, but I think there’s a concept driving them beyond “political theater.” The model seems to be that the bad guys will want to do the same thing over and over again if we let them, and that our best security response is to force them to switch tactics to something unproven and less likely to work. As a result, we tend to ban the things that were used in the most recent attack to make it harder to try that method again the next time.

Ilya Somin didn't disagree with Kerr's comments, but he suggested that we probably should not be reacting so strongly to unsuccessful terror tactics:

[I]t’s certainly possible that the terrorists will repeat effective tactics that worked well the first time. However, the last several attempted attacks... don’t seem to have been well planned, and of course they failed despite the advantage of surprise. If anything, we should want the terrorists to try these dubious methods again, rather than giving them additional incentives to think of new and potentially better ones.

Kerr cautioned against relying too heavily on recent experience rather than tackling the more difficult task of broader threat assessment:

The core problem is... the extraordinary difficulty of threat assessment. Assessing the terrorist threat requires us to figure out what an undetermined group of people with cultures and life experience totally different from our own might do in response to various policies enacted around the world using constantly changing technologies we barely understand enforced by a sprawling global bureacracy we can’t fully comprehend. That’s really really hard to do.

The difficulty of threat assessment means that we often fall back on two proxies: ideology and our very recent experience. We fall back on ideology because it gives us easy shortcuts. It can tell us how much to trust the government, how much to fear the terrorist threat, etc., creating the illusion of familiarity that we interpret as guideposts to answering the unknown. We then do our best to fit in new evidence to confirm our preexisting views.

We rely on recent experience to gauge the threat on the dubious assumption that the near future will be like the near past. If we just had a recent attack, we assume we’re in for a future of a lot of attacks. If we haven’t had an attack in a while, we assume the threat has gone away.... [T]he tendency to legislate after an attack but not before it largely reflects the crutch of recent experience. When an attack is recent, the sense of the threat is higher and legislatures are ready to act: The instinct of “do something” is not just an abstraction, but rather an instinct do “do something about a specific threat” the public has on their minds.

Writing in Psychology Today, Shankar Vendantam discussed the problems of false positives and false negatives and suggested that we need to carefully consider how we strike a balance between the costs of terrorism security and terrorism itself:

False positives are the innocent people we target during anti-terrorism measures.... False negatives are the terrorists who slip through.... False negatives can have catastrophic consequences, but there are invariably many more false positives than false negatives, so the adverse consequences of false positives can sometimes be greater than the cost of false negatives....

When it comes to terrorism, a truly honest conversation would ask how many terrorist incidents a nation is willing to tolerate in order to maintain its highest values regarding civil liberties, or how many civil liberties it is willing to forsake in favor of security. The dishonesty lies in suggesting we can always reduce false positives and false negatives simutlaneously: That is sometimes possible (when you develop a perfectly accurate and risk-free screening tool for [terrorism]) but more commonly you have to trade one off against the other.

Given the human penchant for wanting our cake and eating it, too, it isn’t surprising our national debate over terrorism falls into predictable and polarized camps, where each side demonizes the other’s views.

The term "security theater" was popularized by Bruce Schneier. He's discussed the concept many times, noting that of all the changes since the 9/11 attacks, only the reinforcement of cockpit doors and the heightened awareness of airline passengers to security threats have made any meaningful difference. He revisited "security theater" in a CNN essay this week:

"Security theater" refers to security measures that make people feel more secure without doing anything to actually improve their security. An example: the photo ID checks that have sprung up in office buildings. No one has ever explained why verifying that someone has a photo ID provides any actual security, but it looks like security to have a uniformed guard-for-hire looking at ID cards.

Airport-security examples include the National Guard troops stationed at U.S. airports in the months after 9/11 -- their guns had no bullets. The U.S. color-coded system of threat levels, the pervasive harassment of photographers, and the metal detectors that are increasingly common in hotels and office buildings since the Mumbai terrorist attacks, are additional examples.

....

When people are scared, they need something done that will make them feel safe, even if it doesn't truly make them safer. Politicians naturally want to do something in response to crisis, even if that something doesn't make any sense.

Often, this "something" is directly related to the details of a recent event. We confiscate liquids, screen shoes, and ban box cutters on airplanes. We tell people they can't use an airplane restroom in the last 90 minutes of an international flight. But it's not the target and tactics of the last attack that are important, but the next attack. These measures are only effective if we happen to guess what the next terrorists are planning.

....

Our current response to terrorism is a form of "magical thinking." It relies on the idea that we can somehow make ourselves safer by protecting against what the terrorists happened to do last time.

Unfortunately for politicians, the security measures that work are largely invisible. Such measures include enhancing the intelligence-gathering abilities of the secret services, hiring cultural experts and Arabic translators, building bridges with Islamic communities both nationally and internationally, funding police capabilities -- both investigative arms to prevent terrorist attacks, and emergency communications systems for after attacks occur -- and arresting terrorist plotters without media fanfare.

Randy Barnett spent most of Monday stuck in his car, forced to listen to talk radio hash and rehash these issues; it seems that perhaps this painful experience inured him to the TSA's renewed commitment to traveler-hassling:

[W]hat security does exist seems to have deterred attackers from using prohibited means and forced them to search for ways around rather than through the system. Even the 9/11 attackers used permissible weapons–box cutters–rather then try to sneak prohibited firearms on their flights. And this was pre-TSA, suggesting that the airlines’ much derided private security measures “worked” as intended insofar as use of contraband weapons was effectively deterred and terrorists were forced to find legal instrumentalities with which to accomplish their attacks. (The faulty argument that government agencies would better prevent attacks was what led to [the establishment of the Department of Homeland Security].) Regardless of what you think of handguns on airplanes, it was much harder to execute 9/11 with box cutters than with a handgun. The strategy used by attackers worked on 9/11, not because of a failure of screening for weapons–as opposed to screening for unlawful combatants, which certainly did fail–but because crew and passenger response had not yet adjusted to deal with new threat of suicide combatants rather than hijackings. The new terrorist strategy failed on its fourth attempt that very same day when militia members on United #93 learned of the suicidal intentions of their attackers and took aggressive action. Hence, the almost immediate shift by terrorists to shoe bombs which cannot be thwarted as easily by passengers and crew rather than suicide hijackings. So far as I am aware, no terrorist attacks have been committed, or even attempted, using prohibited weapons; nor have any attempts been made with explosive devices using liquids since liquids were banned. These security measures have thereby forced terrorists to use powder explosives hidden in underpants, an apparently a trickier technique to execute. Referring to them as mere “theater” — tempting as it may be — is misleading.

The fact that our declared enemies will look for ways around any screening protocol is perfectly predictable and an argument for focusing on personal screening to identify unlawful combatants before they get on a plane. It is an argument for treating terrorists as unlawful combatants rather than criminal defendants if for no other reason than they can be interrogated for intelligence about future attacks and techniques. It is also an argument for offensively carrying the fight to the enemy rather than solely relying on purely defensive measures to stop terrorist attacks....

But the fact that, until they are defeated, our avowed enemies will seek ways around current screening methods does not make these security measures mere “theater.” To the contrary, it presupposes that current screening is working to the extent such screening can ever work.

Regardless the effectiveness of any new screening procedures the TSA might implement as a knee-jerk reaction to this latest incident, air travel will assuredly become (more of) a chore to be undertaken only when we have no other alternative. Am I the only one who suspects that the airline industry has already prepared their bailout request to defray any revenue losses remotely attributable to consumer reticence after the Christmas Day incident or frustration with the freshly-abusive... oops, I mean vigilant TSA? So where does all this leave us? It's a catch-22 — if we do not continue to fly, the Islamic terrorists will win; if we do continue to fly, the terrorists who run the airlines will win. Oh well, at least we can take some small comfort that we're not only ones who have had and will have wretched air travel experiences. The Iowahawk blog published a guest essay from the Christmas Day terrorist himself; it seems that his week didn't improve much after the failed bombing:

Yesterday while I was lying in the burn ward getting my crotch bandages changed, I had a chance to catch the air disaster movie marathon on TCM. The lineup included "Zero Hour," "The High and the Mighty," "Skyjacked," and "Airport '75." For all their campy fun and unintentional laughs, those corny old films really serve as a grim reminder how the whole in-flight terror experience has gone completely downhill since the jet set golden years of the 50's, 60's and 70's. What happened to all those pretty stewardesses and polite, well dressed infidels, screaming as the plane plummeted to the ground? Time was, a suicide mission to explode an international jumbo jet was an event full of glamor and excitement; but now it seems to be a endless series of delays, hassles, pushy jerks and third-degree testicular chemical burns. And don't even get me started on the crappy airline food.

Somewhat more seriously, Ilya Somin suggested that perhaps over-emphasis on airline security (setting aside for a moment questions about its effectiveness) may be counterproductive in terms of securing us against terrorism more generally and preserving life overall:

In Europe and Israel, the terrorists have reacted to improvements in airport security by attacking trains, subways, university campuses, and other areas where large numbers of people gather in places that are harder to secure than airports and planes. That doesn’t mean that we should have no airport security at all. But it is a factor that weighs against adopting extremely costly and/or highly intrusive security measures. Even if such policies reduce the risk of terror attacks on planes, they still may not be worth their cost because they might fail to reduce the net loss of life caused by terrorism overall.

Similarly, if we impose too many hassles on airplane passengers, more people will travel by train or bus, both of which are much easier for terrorists to attack than aircraft are. Others might choose to make long trips by car. Cars rarely make good targets for terrorists. But traveling a given number of miles by car exposes you to a much higher risk of death or injury by ordinary accidents than traveling the same distance by plane. Again, the net impact might actually be to increase loss of life rather than reduce it.

Eric Posner also suggested that we're over-emphasizing airline security and that, moreover, our security expectations are too high:

At the social optimum, the number of successful terrorist attacks will be greater than zero. It might be argued that we have had too few successful terrorist attacks over the last few years rather than too many. The question is whether the implicit statistical valuation of life in TSA programs is too high. I suspect that the answer is yes, as is generally the case with airline safety.

Profiling is an effective strategy when, as here, terrorists come from a small group of (relatively) easily identifiable people. One suspects that this explains Israel’s success. But profiling places a large portion of the cost of deterrence on a small group, which makes some people morally uneasy.

"Morally uneasy?" Hah! David Bernstein laughs at your moral uneasiness; he writes that it's long overdue that we get serious about terrorism and advises that, in addition to smarter security, we rework our immigration policies using the lessons we've learned over the last decade:

Number one on my list would be cutting off immigration from countries where jihadist ideology is popular. Several recent arrests involving home-grown domestic terrorists involve individuals whose families immigrated to the U.S. from countries like (IIRC) Pakistan, Somalia, and Yemen. This should not be a big surprise. Immigrant youths and young adults often feel dislocated and alienated from their new society, and it’s not terribly surprising that some fraction of them would be attracted to extremist ideologies popular in their homelands, and readily accessible via the Internet.

[T]he vast majority of immigrants from these countries are perfectly law-abiding and will make fine citizens. But the question is, why take the risk regarding the small fraction that will turn out to be murderous terrorists? What’s the advantage to the U.S. of, say, taking in another ten thousand Somalians instead of, say, Salvadoreans, or Koreans, or Irish, or members of other nationalities that are far less likely to be implicated in anti-American terrorism? Assuming a finite level of overall immigration, it’s just common sense to prefer immigrants from more friendly societies.

....

The only reason I can see for NOT implementing draconian restrictions on immigration from countries that disproportionately produce anti-American terrorists is political correctness, in this case the pretense that a young immigrant from Chile is just as likely to try to blow up an Amtrak train as a young immigrant from Yemen. It’s time to get past such nonsense.

In Maricopa County, Arizona, the showdown between the judiciary and the County sheriff has long since passed the crisis point. Several legal bloggers have urged lawyers in the region to stand up for the courts and the rule of law, against the increasingly-lawless sheriff and his toadies. Finally, the local legal community has begun to act. Led by a local attorney, Jim Berlanger, several hundred lawyers and others demonstrated to show support for those standing against the sheriff's above-the-law regime; Mark Bennett interviewed Berlanger afterward. Sheila Polk, County Attorney for neighboring Yapavai County, published a blistering op-ed piece in the Arizona Republic newspaper:

Maricopa County is not my jurisdiction, but I can no longer sit by quietly and watch from a distance the abuses of power by Sheriff Arpaio and County Attorney Andrew Thomas.

I am conservative and passionately believe in limited government, not the totalitarianism that is spreading before my eyes.

The actions of Arpaio and Thomas are a disservice to the hundreds of dedicated men and women who work in their offices, and a threat to the entire criminal-justice system.

Peace officers and prosecutors take an oath of office that is sacred. We swear, under God, to support and defend our Constitution and our laws against all enemies, foreign and domestic. We also swear to "impartially discharge the duties of the office."

Our power, granted to us by the people, is not a personal tool to target political enemies or avenge perceived wrongs.

Prosecutors are ethically bound to refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.

In maintaining public safety, each of us is tasked, by our oath, with protecting the rights and privileges of the least among us. Everyday, in every single thing we do to keep our communities safe, we must respect the rule of law and the protections set forth in our Constitution.

Abdication of these responsibilities causes erosion of confidence in law enforcement and our communities become less safe.

....

Andrew Thomas and Joe Arpaio have strayed from their constitutional duties.

Scott Greenfield, who had been amongst the most vocal in calling for Maricopa-area attorneys to act, was quick to praise Berlanger, Polk, and the many others who stood up this past week and just as quick in condemning the continuing lack of concern shown by professional organizations like the American Bar Association:

What we have witnessed over the past month are acts of increasing boldness and bravery. True, it was long past due for these acts, but they come in their own time. I'm sure when Jim Belanger called for a rally he had no idea that Sheila Polk would speak out in support of his purposes. Polk saw the opportunity and seized it, placing herself squarely on Crazy Joe's enemies list. She joined the tenor of Maricopa lawyers, bringing a beautiful soprano to the harmony.

Up to now, there are two common threads the bind those who have spoken out. A respect for law and the Constitution, and a willingness to accept the risk of Crazy Joe's ire. The latter is not inconsequential, given the fact that Arpaio is in command of an armed force and has shown no reluctance to abuse his authority to silence his enemies.

....

The ABA Journal has been busy running beauty pageants designed to get lawyers to register with its website, and pretending that marketers and social media gurus are Legal Rebels. This would be embarrassing enough on its own, palpable demonstrations of how vapid and superficial the ABA has become. They are selling a Legal Rebel skateboard, for crying out loud.

We could happily overlook its efforts to achieve pseudo-coolness if only the ABA Journal had seized this opportunity to actually serve a purpose, to take a stand, a firm, clear and forceful stand, at this point in time when it meant something. Not tomorrow or next week, after the brain trust figures out that their failure to stand up has made the ABA the embarrassment of the legal world.

By the mere act of having written about this event, while failing to either recognize its importance or take a stand, the ABA Journal, and thus the ABA itself, has shown itself to be irrelevant. Go run another beauty pageant or skateboard sale. That's all you're good for. The time to act has come and gone. It failed.

Jeff Gamso also commended Berlanger and Polk for their stands and wondered why, considering the propensity of the sheriff and his allies to single-out their critics for legal and extra-legal abuse, the federal government hasn't shown any inclination to involve itself; now that, after seeing her very public criticism, the sheriff has asked the FBI to take a look at Polk's actions, Gamso asks whether the feds will work for or against the sheriff:

It's true that Sheriff Joe and his minions weren't at the rally with fire hoses or tanks. As far as I can tell, nobody was arrested or roughed up. All to the good. But the truth is that Joe and his poodle won't be stopped. Maybe it's just so ingrained they can't help themselves. Nah. It's choice. Criticism of them carries a price.

So we come to Sheila Polk who is about to learn that lesson.

....

Prosecutors simply don't engage in this sort of attack on other prosecutors without cause. Or without thinking about the consequences. And they came quickly.

....

This isn't subtle. But what happens next? What if Polk doesn't stop? Do they send someone out with a baseball bat to break her kneecaps?

The feds seem singularly unwilling to take on the Arpaio/Thomas machine. Will they do that machine's dirty work?

Mark Bennett didn't hesitate to call out those attorneys who continue to work for Maricopa County Attorney Thomas, including those who criticized their boss but only in confidence to reporters:

For tyranny to succeed, good people must cooperate. The abuse of power to intimidate and punish judges for not toeing the executive’s line is a tool of totalitarians. Those prosecutors in Thomas’s office who privately revealed their feelings about this abuse to the Phoenix New Times are not just doing nothing. By continuing to work for Andy Thomas, and speaking out only privately, they are actively helping evil to propagate.

....Cooperating in the subversion of democracy by undermining the rule of law might well be indefensible in a way that cooperating in one’s own debasement as a human and a professional is not.

Aside from the ethical question, there are practical considerations. These Maricopa County Assistant County Attorneys, casting their lot with Andrew Thomas, are lying down with dogs. If Arpaio and Thomas’s fantastical castle in the sky comes crashing to the ground, those lawyers are going to be remembered as having helped Arpaio and Thomas try to destroy the American system of government in Maricopa County. If Arpaio and Thomas’s delusions of grandeur are proven true—if the judiciary in Maricopa County becomes a lapdog or a nullity—those lawyers will be remembered as having helped Arpaio and Thomas succeed. Neither is a cheerful prognosis for their future outside of a totalitarian future; either way, Maricopa County’s Assistant County Attorneys wake up with fleas.

The specifics of the Maricopa County crisis are — thankfully, for now at least — peculiar to Maricopa County; notwithstanding, courts throughout the nation are beset by a crisis of justice, as Gideon explains in this wake-up call:

The economy may or may not be recovering, but one thing is for sure: budget deficits are spiraling out of control. Crime may be down, but the workload of the criminal justice system is up. In particular, the burden on public defender systems is one that has rarely been seen before.

Whether this is a product of reduced funding, of lengthy sentences coming home to roost, of a zero-tolerance “tough on crime” policy enacted years ago or of the sheer overcriminalization of our society is an open question.... [W]hen books are written warning us that we commit three felonies a day, it’s time for someone to sit up and take notice. And by someone I mean those with the power to change the direction we’ve gone in: legislators and voters. So you, all of you.

The repercussions of too many people in the justice system are beginning to reverberate throughout the country....

....

This will not end anytime soon and even if there is an alleviation of the financial crisis, the impact on the criminal justice system will be temporary. More crimes will be committed, more knee-jerk reactions will be induced and harsher sentences will be given out. The burden continues to build until there is a fundamental change in the way we think about the numbers, the crimes and the system.

Scott Greenfield agreed with Gideon's assessment and highlighted one aspect in particular — the cascade effect lengthy sentences have on overall enforcement resources:

As Gideon contends, the years have brought us ever-increasing sentences, with ever-increasing costs. This followed the "tough-on-crime" trend that was borne of a sense of public frustration largely fed by politicians and media who were busily sensationalizing crime and manipulating the public fear to their own advantage. Sentence inflation, at best, is palliative, making us feel better without actually improving our safety or the system, and without anyone giving thought to the costs incurred. This doesn't touch, by the way, the collateral issue of defendant's leaving prison drug free and capable of gainful employment, another sore spot.

Gideon is right. It's time to scrutinize the bizarre and inexplicable sentences imposed, to terms of 17 years or 23 years or 8 years, and ask what conceivable basis could there be that would compel a judge to sentence a defendant to such an odd length of time. Every year beyond that which is necessary is a cost society, nor a defendant and his family, should not be forced to bear. We all suffer from these absurd sentences, and their whimsical imposition must be brought under control.

Finally, in a very sobering post, Norm Pattis looks forward somewhat grimly to "another year in the trenches", defending the accused in a troubled justice system:

Summoning fight is usually not hard for me. I was born on the other side of the tracks and know firsthand how thin the line that separates me from the folks I represent. And for all my bold irreverence, I know a truth Christians know: All have sinned, and fallen well short of the glory of God.

But I am having a hard time summoning fight just now. I am tired, discouraged and filled with misgivings about the law and my role as a lawyer.

....

I did not count on becoming a friend of sorrow. Or fatigue. Or seeing clients put guns to their heads to avoid the consequences of a judge's scorn. Or mothers kneeling at my feet holding my hands weeping in a crowded hallway and begging me to do something for their son. Or responding to emails telling me how hard it was to keep from swallowing a jar of pills to make the night go away. I never thought I'd see so much suffering. I thought I would be able to prevent it from happening or make it stop. I thought I would be a hero.

But no one is a hero to a client spending his life behind bars.

....

When the law beckoned, I assumed it would mean a life of toil. But somehow I never really foresaw how hard the work would be. I see it now. And at once my knees tremble, and I know something I have not felt so powerfully in a long time: fear. A new year dawns and I am still bruised by the year just passed. Another year dawns and uncommon cunning is required yet again, and faith, too; yet I lack faith.

The law is hard; I must, somehow, become harder than sorrow.

This being the end of the year, many sites posted "year in review" or "best of" lists. I'll confess that I can't get enough of these things; I even read the ones compiling topics in which I have no interest the rest of the year (though I promise not to inflict any of those on you here).

John Bolch's roundup of the year in divorce matters around the world was both concise and entertaining. If divorce was always this much fun, I'd probably be on my fifth marriage. If you're looking for reading material, in Forbes magazine Dan Harris published a list of the ten best books on China (that's PRC, folks, not Wedgwood). Kashmir Hill ranked the top five motions of the year, including a Motion to Compel State's Attorney to Drop His Accent (the accented attorney in question being the British-born blogger at D.A. Confidential) and a Motion to Compel Defense Counsel to Wear Appropriate Shoes at Trial. Charon QC gathered his wonderful F*ckART paintings (including my own treasured Fuckerflies III, pictured at left) into a single gallery.

In a bit of year-end wisdom, Dave Hoffman offered an observation about an "Eternally Contingent Truth":

[L]egal analysts left and right agree that the Constitution creates procedural structures (the senate, the bill of rights, etc.) that need to be modified in light of modern challenges; that the Supreme Court ought not have the final word of what it means for a law to be constitutional; that we need to really worry about executive overreach; and that data – not bias – should drive public decisions on problems like global warming and torture.

The nitpicky fact that left and right don’t hold these truths as self-evident at precisely the same moment in time seems trivial, right?

That wasn't the only eternal truth discussed this week in the blawgosphere; another is that "the perfect is the enemy of the good". Dan Harris explained that if you have a "perfect" contract that you'd like to use in China, you may want to rethink your approach:

Sometimes our clients consider the perfect contract to be one that just really really protects them. In every single way. Late delivery? Chinese company has to pay a massive amount in liquidated damages? One item out of one hundred not quite up to snuff? Again, the Chinese company has to pay liquidated damages well beyond any possible harm to our client. Payment by our client? Payment by our client? Ten percent now, the rest upon delivery and confirmation of quality. Oh, and the Chinese manufacturer must not make any even similar product for any other company.

All of the above is well and good, but the reality is that the only Chinese companies that sign such agreements are doing so for Wal-Mart or are doing so, knowing full well they will never abide by it. So when confronted by clients who absolutely insist on these "perfect" contracts and refuse to listen to our advise regarding the realities of the Chinese market, we go ahead and write the contract per the clients instructions. We then sit back and wait a few months for them to return to us to write a brand new contract that someone will actually sign. Or sometimes, the client comes back to us and tells us they no longer want to try to do business in China because nobody there is reasonable.

The best contracts are not perfect for any one side; the best contracts are those that provide the most protection possible, while actually working in the real world.

Over the past year or so, "if you're thinking of becoming a lawyer, don't" has become a truth for our time, if not yet all time. Nonetheless, many remain committed to the prospect of a career in the law. Geeklawyer continued his outreach efforts to connect with aspiring law students (provided they're young and attractive women, that is); he described their discussion:

Her large brain and inclination to dispense incisive opinions were not enough to put Geeklawyer off her, even though it is as desirable for a woman to have an opin­ion as it is for her to have a penis (not at all).

No, the abiding impression was that for all the uncertainties of the Bar it’s aspi­rants remain as buoyant and optimistic as ever....

....

Of course she is an impressive high achiever: past president of her University Union, Good degree (albeit only Eng Lit) and winner of GL’s heart. Lofty achievements indeed. But as she is well aware her peers and competitors will also have similarly good CVs despite which she remains undaunted.

Ms LP was equally undaunted even by the realities of new entrants to the Bar: last minute instructions for a hearing 100 miles away requiring overnighter preparation and for a fee that barely buys a starBucks.

Geeklawyer pointed out there were two fast routes to poverty at the Bar: Government funded family law and crime; Miss LP’s career preferences. Daunted and deterred? Not even a little, both admirable and worrying. Miss LP’s response was that she had heard that these stories and prophecies of the Bar’s doom went back 30 or 40 years. True, but Geeklawyer remains of the view that recent trends are accelerating the decline of the Bar in its traditional form. Miss LP says “Meh, Twas ever thus, tell it to the hand” .

Her final response was: “What I really need, therefore, to sustain me is a rich hus­band”. And she caressed GL’s hand and fluttered her long dreamy eye lashes. There is ambition and over–ambition: madam is hot, but is she that hot?

Happy New Year to you, Geeklawyer, and to you all!

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., SeattlePI.com (ABC News Photo), The Village Voice (Mirko Ilic Illustration), Paris Odds n Ends Thrift Store, and Charon QC.

Blawg Review is like a box of chocolates...

The anonymous and always-enigmatic Editor of Blawg Review (not pictured above) offers a "sampler" of each of the past year's editions of the carnival of legal blogging in this week's Blawg Review #244. For obvious reasons I was reminded of those Whitman's Sampler chocolates I used to see around Christmas and Valentine's day; those boxes of chocolates are also an apt metaphor for Blawg Review itself. To paraphrase our learned friend, Blawg Review is "like a box of chocolates. You never know what you're gonna get." Glancing through Ed.'s capsule summaries of the year's more than four dozen posts, one can't help but be impressed by the creativity and variety offered each week by Blawg Review's hosts.

As has become his custom at the end of each year, Ed. has issued a call for Blawg Review of the Year nominations. It would be nearly impossible for most of use to nominate just a single review as "best" and, thankfully, Ed. doesn't ask us to do this. Instead, we're invited to nominate as many of 2009's Blawg Reviews as we see fit. Though nominating just one post would short a number of worthy contenders, I think that nominating too many very good posts would fail to give the greater ones their due; as in years past, I've somewhat arbitrarily limited my nominations to the five I thought were the best of the best this year:

• Blawg Review #193 — Charon QC started the Blawg Review year in high style (he'll also be the first host of 2010) with his tribute to the "Lord of Misrule". This post was epic not just in its length but in its comprehensiveness as well. No one does Blawg Review better — or more frequently — than Charon.
• Blawg Review #205 (with its appendix) — George Wallace presented his Blawg Review in two complementary parts, with the main post themed around Gustav Holst's orchestral work "The Planets" and the appendix showing our humble Moon some love.
• Blawg Review #209 — John Hochfelder produced one of the more memorable and touching Blawg Reviews of this or any year with a birthday tribute to his father.
• Blawg Review #233 — The group bloggers at Popehat highlighted the little-known work of a little-known man, the self-proclaimed Emperor of the United States of America and Protector of Mexico Norton I. In 19th Century San Francisco, Emperor Norton was beloved for his eccentricities; with this tremendous Blawg Review, the gentlemen at Popehat honored him for his unappreciated wisdom.
• Blawg Review #236 — Each year, Eric Turkewitz writes one of the year's best Blawg Reviews. His latest would be remarkable by anyone else's standard; that it's exceptionally good even on the Turkewitz scale is truly amazing.

Though the rules for Blawg Review of the Year have changed a bit from year to year, thus far the winner has not. Let's remedy that injustice this year. Take a second look at a few of the more memorable Blawg Reviews in Ed.'s sampler and get your nominations posted!

TGIS: Thank God It's Schadenfreude! (250)

This week's joy in the misfortune of others comes courtesy of MyFoxBoston.com (via Diane Levin) (from Tuesday, December 22; link good at time of posting):

A North Shore man who became an activist for tougher drunken driving laws after his son was killed by a drunken driver has been sentenced to a year in jail after pleading to sufficient facts to driving while intoxicated.

Donald Ross received a 2½-year sentence on Monday in Salem District Court, with one year to serve and the remainder suspended for 2½ years, after reaching a deal with prosecutors. He pleaded to drunken driving, third offense, and failing to stay within marked lanes.

The Salem News reported that Ross expressed regret in court.

[Previous TGIS]

A Round Tuit (12)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

As the NFL playoffs race heats up and the college football bowl season gets underway, the legal blogosphere had sports covered this week — from football and soccer to baseball and softball, with a snowball fight and a passing reference to basketball thrown in for good measure.

It's been more than a decade since Jerry Maguire hopped around screaming "Show me the money!" and it's nice to see that the backstabbing and client-stealing that movie depicted is still alive and well. Michael McCann notes a case filed recently wherein the former agent for a Red Sox pitching prospect alleges that the pitcher's new agent tortiously interfered with their preexisting relationship. McCann was quoted in a news account of the suit: "Generally speaking, players can change agents at their discretion. There is certainly evidence of agents poaching clients (in cases) that don't result in litigation. Maybe it's unethical; maybe it's wrong; but it happens." While these revelations seem to be the least surprising since Captain Renault was "shocked, shocked" to learn that gambling was occurring at Rick's Café Américain, McCann writes that "If Athletes Premier International v. Hendricks Sports Management goes to trial, it could pose significant ramifications for agents who encourage baseball players to switch agents (which traditionally has not received legal scrutiny...)."

Jerry Maguire's client, football player Rod Tidwell, described "show me the money" as "a very personal, a very important thing. Hell, it's a family motto." One might just find that saying on the Jordan family crest as well. As Mike Masnick reports, Michael Jordan accomplished much in his career in basketball and baseball, but humble sort that he is, he's reticent about accepting accolades from well-wishing admirers. Of course, it's sometimes difficult for us to see the humility for all the trademark infringement threats:

[In Chicago,] two of the larger regional supermarket chains, Jewel and Dominick's, recently put out ads congratulating Michael Jordan for all of his accomplishments (at the time of his induction into the NBA Hall of Fame). But, according to Jordan and his lawyer these newspaper ads celebrating Jordan's accomplishments were actually trademark infringement. Now, it is true that there are certain publicity rights when it comes to celebrities and "endorsements," but it's hard to see how a congratulatory message from local Chicago grocers would be seen by any moron in a hurry as an "endorsement" (no matter how good his outside jumper might be). I guess the solution is just to stop recognizing Jordan's achievements altogether.

Bullying enthusiastic sports fans with spurious intellectual property claims seems like a counterproductive strategy, but it's by no means a peculiarity of the sports business on this side of the Atlantic. Masnick also noted this week that Scotland's Highland League has threatened to fine a schoolboy who (with the club's permission) videos the sparsely-attended games of a local amateur soccer side and uploads the videos in ten-minutes-long clips to YouTube for viewing by those who couldn't attend. As Masnick explains, the league secretary's threat has no basis in law — the action on a football... er, soccer pitch cannot be copyrighted and the copyright in the video clips the boy creates is his own:

This isn't a question of competing with broadcasting rights. No one else is filming the games. It's just the kid. Doing it as a labor of love to help promote the team he loves.

The club itself is thrilled with Smith filming the games, and is upset that the league is trying to fine him.

But enough about football; now let's talk about football. Dave Hoffman takes aim at an oft-repeated claims that linemen generally and offensive linemen particularly are smarter than players elsewhere on the field. The bases for these claims are the "Wonderlich" test, a test used by NFL teams and others to test players' general intelligence, and a widely-circulated chart correlating Wonderlich results with position. Although he, like many others, thought that the claims "just feel true", he took a closer look and found that the theory relied on outdated data and was more full of holes than the Redskins' defense. In particular, the "selection mechanism" suggested by proponents of the claims (explaining how smarter folk tend to end up to the O-Line) was questionable:

What possible mechanism would make the players “closer to the ball” “smarter” than those farther from it? The baseline hypothesis is that linemen need superior decision making skills: quick judgments about blitzes, better memory of the intricacies of the plays and blocking schemes, etc. But this seems hard to swallow: doesn’t the running back need those exact skills? And why does the punter, whose job seems pretty one-off. And the operation of this idea is weird, however popular it might be: the idea seems to be that there’s an undifferentiated mass of football players in pop-warner leagues. Some are smarter than others. The smarter ones get pushed to the o-line and the QB position; the less smart ones are pushed to become little wide-receivers. Then, what happens? In a feat of unprecedented lamarckian adaptation, the little o-linemen become huge o-linemen; the little wide receivers become lithe, tall, or very, very fast.

Or maybe the selection operates over time in a different way: dumb o-linemen, notwithstanding their physical characteristics, are selected out of the football tournament; wide-receivers are encouraged to be stupid. You might have thought football was a game about bashing the other guy, being a freakish physical specimen, and being willing to sacrifice your body and brain for the team. On this hypothesis, it isn’t: it’s a selection process for decisionmaking skills. Look, I guess this is possible, but it seems quite unlikely.

Hoffman suggests that the "closer to the ball" intelligence theory may be based in outdated or insufficient data and supported by strained suppositions, but what really gives it legs are enduring racial stereotypes; he notes that "offensive linemen are disproportionately white in a league that is mostly (70% or so) composed of African-American players. The Wonderlic, unfortunately, produces scores that are racially skewed." Elsewhere in the football-loving blawgosphere this week, Elie Mystal commended a motion to continue filed by an Alabama attorney who wants to join the rest of the Crimson Tide nation at the team's national championship date with Texas; the motion, which Mystal characterizes as "one of the most rational arguments you are likely to hear today", concludes:

8. It is also understood that many of the witness involved are trying to acquire tickets to the game and/or scheduled to be at the game in Pasadena on January 7th and certainly any juror selected to participate will likely be preoccupied and not able to devote their full attention to the case before them during the week of January 4, 2010, and therefore, the parties would be prejudiced by the distraction caused by such a major event of such significant importance to so many people in this State.

9. ROLL TIDE!! ( although my secretary is for the other great team of this State, she feels that I need to attend this championship game!); and may the Longhorns be defeated.

Mystal was dismissive, however, of a suit filed by an injured New York City softball player. Typically, when a player is injured, one of the allegations is that a failure to train the player exposed him or her to unreasonable risk and thus the team/league/[insert deep-pocketed defendant name here] should be held liable. Here, sure enough, the player alleges that she was not taught how to slide and was injured as a consequence; the problem, though, is that her injury occurred during a sliding drill:

We could talk about assumption of risk in the context of high school sports. But we shouldn’t have to. More importantly, city lawyers — on the taxpayer’s dime, mind you — shouldn’t be forced to defend this ridiculous lawsuit. She broke her ankle running the bases. You don’t get a cash prize for that. You get some ice and an ACE bandage for that.

You know, I find it hard to believe that a 15-year-old girl really wanted to sue the city and the school because she was clumsy. No, this reeks of “parents looking for a payday.”

But enough about softball; now let's talk about snowballs with a legal blogging matchup which is perhaps less "Wide World of Sports" than it is "Battle of the Network Stars". After Reason magazine posted a video of a Washington, D.C. police detective drawing his service weapon while confronting a crowd at a snowball fight, Ann Althouse wrote that she was "siding with the cop":

There is a difference between a snowball fight and throwing snowballs at moving vehicles. In a snowball fight — like this cool one in Madison a couple weeks ago — you have voluntary participants playing at fighting with each other. Throwing snowballs at cars, on the other had, is surprising people who happen upon the scene and it's distracting them — and doing so at a time when it is particularly difficult to drive. Drivers do not know the extent of the interference when it begins, and they can be frightened or easily stimulated into braking or accelerating — when there is snow and ice and when pedestrians are nearby.

....

[Detective] Baylor got out of his car, apparently, to try to deal with disorder that he couldn't have known the precise nature of. Alone, facing a confusing crowd, he got his gun in his hand.

Sometime after her original post, she noted that the snowball fight was a prearranged affair; 40 minutes before the confrontation with the police detective, the organizer blogged his announcement of "The DC Snowpocalypse Guerilla Snowball Fight 2009". When the organizer described the detective as "a random thug with a penchant for violence" and suggested that many in the crowd "feared for their lives and those of their friends", Althouse thought the claims were insincere:

Watching the video, I wondered why so many people were laughing and hanging around... and taunting the man. That's not how I'd behave if I thought I might be near a "random thug" with a gun in his hand. I'd say their behavior shows they knew he was a cop attempting to follow whatever the protocol is when one man faces a mob. Unfortunately, the video does not show the entire confrontation.

Scott Greenfield took issue with Althouse's defense of the police response, satirically suggesting that she was trying to outline strict rules for snowball fighting, the violation of which are punishable as a capital offense:

Althouse found some of the words chanted by the crowd distasteful. I did too. But I wouldn't advocate for, or excuse, their being shot for having chanted unpleasant words. Sticks and stones, Ann. Not even snowballs. And let's not forget that had Det. Baylor not stopped his Hummer, whether to break up unruly street thugs or because he was pissed off at someone hitting his shiny car with a snowball, and pulled out his gun, there would have been no chanting. Independent intervening event, lawprof?

....

If only the organizers of this vicious snowball fight had chosen a more appropriate site, Althouse would have endorsed it as good, clean fun. After all, no such thing as a fun snowball fight might happen spontaneously, as in wherever the people were at the moment it began. Only evil snowball predators bent on law-breaking destruction would engage in such vicious frivolity.

There's nothing wrong with Ann Althouse deciding that had she been walking the streets of D.C. and came upon this snowball fight, she would have just kept walking. It doesn't have to meet with everyone's idea of a good time, or a good choice. But to suggest that a police detective pulling out a gun, with the obvious potential that it would discharge a projectile and strike someone, is beyond the pale. We don't execute people for engaging in snowball fights. Even snowball fights that break Ann Althouse's rules.

I for one was afraid that the prospects for sports-related legal blogging seemed dim once the college and professional football seasons are past and the drifts of the 2009 Snowpocalypse have melted; thankfully, the city of San Francisco will rescue us from the sportsblawging doldrums by pointlessly litigating Major League Baseball's prospective move of the Oakland A's to nearby San Jose. Many of you who are familiar with Bay Area geography will correctly note that Oakland and San Jose share at least one common characteristic — neither city is located in San Francisco. So then, what's San Francisco's beef with the move? Show me the money! Nathaniel Grow gives us the play-by-play:

San Francisco's purported basis for suing MLB stems from its financial interest in the Giants. The city reportedly receives $3.6 million in rent the from the Giants annually for AT&T Park, as well as taxes on game day revenues such as ticket sales and parking. The city apparently believes that these tax revenues would be threatened should the A's relocate to San Jose, a territory which has historically been assigned to the San Francisco Giants.

....

However, even if San Francisco is able to establish standing, such a suit would also place the city in the awkward position of effectively asking a court to enforce MLB's anticompetitive territory allocation system. While professional baseball's practice of granting franchises exclusive rights to certain geographic territories has previously been challenged by those seeking to enter a restricted market -- suits which have historically been dismissed pursuant to MLB's antitrust exemption... a suit by San Francisco would mark the first time that MLB has faced a lawsuit seeking to require the league to enforce this restriction.

It's often said that the holidays are amongst the more stressful times for marriages and there were certainly a number of supposedly-close relationships evidently feeling the strain this week. Take, for example, the relationships amongst public defenders and private defense counsel. Prompted by a comment to an earlier post at his site, Gideon considered whether filthy lucre represents a real division in the defense bar:

While I acknowledge that in a purely economic sense we have divergent interests, I always thought that we were united by our ultimate goal. That we could rise above the pettiness of the pursuit of the dollar and instead join hands and smoke a Jerry Garcia fueled joint of peace, love and Constitutionality.

....

I guess I’ve never considered the economic viewpoint of the private attorney, because I’ve never had to. So I’m doing it now. I know that the regular voices in the blawgosphere will certainly deny this, but they’re a small minority (statistically speaking). So what of the majority? Is there a wedge between us? Is it money?

Scott Greenfield suggested that some of Gideon's disbelief was "feigned" (while Gideon subsequently characterized some of Greenfield's post as "hyperbole"), and discussed why the "wedge" between public defenders and private defense counsel is somewhat overstated:

To the private criminal defense lawyer, the defendant who can afford a lawyer is their domain. The PDs are taking away their next meal. Where's the mutual love? Defend the poor and downtrodden all day long, but let the private lawyers make a living too. While PDs see themselves as just helping those in need, private lawyers see them as poaching on their turf.

This raises the question of how one distinguishes a defendant who can pay from one who cannot afford an attorney. Here too there's a schism. For most PDs, and some private lawyers, a defendant who can afford counsel is one with cash in the bank (or the suitcase, as the case may be). Most private criminal defense lawyers, however, would contend that defendant's possessed of assets, house, car, jewels, are clearly capable of paying.

....

Call me Pollyanna, but I believe that the really greedy lawyers are a distinct minority, and most private criminal defense lawyers put the interests of defendants well ahead of grubbing money. But they still need to feed their families, and that means they need to represent paying clients.

Distinguishing those who can pay from those who can't was the focus of Gideon's follow-on post. Contending that the current threshold is set far too low, penalizing those without real ability to pay, he nonetheless conceded that the threshold needs to be set somewhere:

The problem, as I can see it, is this: the indigency guidelines are a joke. Connecticut determines indigency based on the Federal Poverty Guidelines. For a single individual with no dependents, that’s about $13,000 a year. How many people do you know that make $13K a year?

I know many who make 4 times that and yet wouldn’t be able to “afford” a lawyer. Because it’s not just income that should determine resources, but disposable income. The average household income in the country was roughly $50,000 in 2008. That’s gross income. In CT, the figure is $57,000-ish, which is the highest in the country.... So one might be tempted to say that’s a lot of money and surely the average person could hire a lawyer. But that’s not true at all. From that income, you remove taxes, rent, utilities, insurance and you can see how that figure gets whittled down to next to nothing. Then how is the “average” person expected to bear the heavy expenses of a criminal prosecution?

....

This is economics plain and simple and I can understand that. I think it might be instructive to draw a line somewhere: there’s a difference between those that have the ability to pay for their representation and choose not to and those that don’t realistically have that ability.

The disagreement between Gideon and Greenfield was nuanced and civil; the disagreement over legal social media consulting hasn't been and certainly wasn't this week. In a lengthy post, Brian Cuban railed against the many unsuccessful, suspended, disbarred, or otherwise "former" lawyers who've switched to selling social media "snake oil":

There is NO such thing as a social media expert in the legal realm yet. It simply has not been around long enough to develop a body of work. At most, everyone doing well in social media has drawn on unique life/professional experiences and if the experiences are unique enough, they have found niche to wrap basic social media principals around. Nothing wrong with that. If there is a way teaching social media is supposed to work, IMHO that’s it.

....

Most have not practiced long enough to have unique experiences or generated revenue in any way shape or form other than billing hours. And if they were so successful in using social media during their practice why are they not still practicing? Seems like a fair due diligence question. They voluntarily left this incredibly successful practice of law making millions using social media to start over and teach you how to use social media so you can make millions? Snake Oil tasting any better?
Bottom line before you drink? Its all about disclosure. If people would do the same due diligence they would certainly do in the brick and mortar world before they hired a lawyer they would find out the following:
The attorneys holding themselves out as having “superior knowledge” (I refuse to use the word expert again) to help you navigate the social media jungle to the pot of client gold on the other end, are often attorneys who are no longer practicing because they could not support themselves, were disbarred, sanctioned or have limited practice experience and often never generated new client portables when they were practicing.

In particular, Cuban singled-out new social media consultant Kathleen Scanlon, whose involvement in mortgage fraud led to her sudden departure from the New York Bar and a Twitter beating (a "Tweating"?) by Brian Tannebaum (mentioned in last week's Round Tuit post). For his part this week, Tannebaum discussed whether desperate economic times have caused attorneys to follow these reinvented, self-proclaimed social media gurus:

Do lawyers not do their own research to see the background of the person who wants them to "blog for profit" or if the latest "twitter for lawyers" book was written by a lawyer who is suspended, or if the real estate "lawyer" who wants lawyers to network with her firm was recently convicted and is currently delinquent with the Bar?

No.

These are desperate times.

And desperate lawyers would rather follow people lying about their qualifications as social media experts than real lawyers who may have a tip or two about becoming not a better tweeter, but a better lawyer.

Apart from Kathleen Scanlon, a couple of others on Tannebaum's "do not follow" list are the disbarred Grant Griffiths and the suspended Sheryl Sisk Schelin. Mark Bennett has written often about this unpleasant rise in social media guru-ing so often that he's started a new blog, Social Media Tyro, just to hold it all. He discussed the ease with which attorneys who've been dishonorably-discharged from the profession can reinvent themselves as social media gurus and suggested that it's becoming a "refuge for the disbarred":

I sympathize with [Kathleen] Scanlon, trying to make the best of the very bad situation she’s gotten herself into. She may well have a partner and employees (if you believe her website, she has a staff of beautiful people in expensive suits) who are depending on her to make a smooth transition to what she calls her “hiatus,” and a family depending on her to bring food home during that break.

I also understand the appeal of “Social Media Consultant.” It is a title that any idiot can give himself; it requires no sort of expertise whatsoever, and no equipment but a computer with an internet connection (which the former lawyer won’t be using to practice law). Barriers to entry in this specialty are very low. Scanlon will not be the first lawyer who, forced out of the practice of law, has redefined herself as a blog or other social media expert.

....

So what’s wrong with that? If some naive lawyer, not having the first clue about online social media, wants to pay a convicted, disbarred, or otherwise disgraced ex-lawyer to show her the ropes, what harm is done?

None, if the naif knows what she is getting and the consultant doesn’t lead her to do anything untoward or deceptive. But when the disgraced lawyer is deliberately concealing the fact that he is a disgraced lawyer, these questions are raised: is the naif getting what she thinks she is getting (or is she trusting someone whom she would not trust if the truth were revealed); and will the consultant, for whom deception has worked, teach the naif to be open and honest (or will he teach her what worked for him: concealment and deception)?

While agreeing (with Brian Cuban) that no one is a social media expert at this stage of the game and that economic turmoil has driven more than a few attorneys into consulting, Donna Seyle took issue with his suggestions (and others') that the social media consulting field was rife with former attorneys who were failures at the practice of law; she listed ten reasons (apart from failure) why a lawyer would leave the profession to work as a social media consultant:

Here are my top 10 reasons why any lawyer who is active in social media, has used it to market themselves, and believes he/she can help other lawyers use these tools to market their practices would change careers:

1. They don’t like practicing law.
2. They really enjoy participating in social media communities.
3. They’ve discovered new and different ways to use these mediums to create successful marketing strategies.
4. They’ve found that developing new businesses in the social media arena motivates them to be successful.
5. They would rather work with lawyers than against them.
6. They enjoy writing, speaking and being creative in their use of new marketing tools.
7. They are really excited when they wake up in the morning and realize they don’t have to go to court.
8. They hands-down prefer a tweet-up over a local bar dinner.
9. If they stay up all night working, it’s because they’re on to something and can’t stop.
10. The social media world is vibrant, challenging and cutting-edge.

While that list might make a fine start to an overpriced book, the market for overpriced books is already becoming a bit crowded. Just this week, Brian Inkster gave a generally-positive review to Adrian Dayton's Social Media for Lawyers: Twitter Edition but was more than a bit taken aback by the price tag: "The only drawback to some may be the price tag attached to the book. At £145 this seems a bit steep for a 77 page book of this type." Lured by the prospect of untold Twitter-based wealth, Charon QC (whose alter-ego has worked in legal publishing before) determined to become a "social media maven and guru"; he reported (on Twitter, naturally) that after twenty minutes he'd written a Twitter-for-lawyers book and that it would soon go on sale for only £1,250 plus tax. As he notes, however, "[t]here is a wealth of FREE material out there"; to compete, he may have to lower his prices just a bit (but only a bit). Sheryl Sisk Schelin has also written a book on the topic, which she had priced at $47; she's announced that she'll lower the price to seven dollars for the first fifty people who agree to return to her site and review it six weeks later. Charon, we have $7; will you go to $6? Do I hear any lower offers? Mr. Dayton? Schelin also defended those who look to others to teach them the "how" of social media and those consultants who are willing to teach them for a fee:

[Brian Cuban] thought that you — meaning the average busy solo or small firm lawyer reading this blog or looking at Twitter as a marketing tool — should just go search for information freely available on the web, put it all together yourself, and basically learn by doing.

Frankly, I agree — that’s certainly a valid way to go. Knowledge earned by doing often stays with us far longer than that which is handed to us. That’s why I always try to show my clients how to do it themselves, instead of doing it for them. That’s how I learned to blog, ten years ago. That’s how I learned social media and social networking. That’s how I learned CSS and HTML/XHTML.

Let me reiterate, so there’s no confusion on this point: There’s nothing wrong with this approach!

If you have the time, that is.

But a lot of us don’t. And that’s OK, too. They need a little extra assistance, and there’s nothing wrong with that, either.

....

I’m not going to let Twitter bullies stop me from trying to help folks who need it, whether those folks are lawyers or bankers or real estate agents or maids any other kind of service provider.

I’m just not. And I suggest you don’t let them stop you from getting the help you need, either.

For better or worse, when it comes to social media and otherwise, the profession is changing around us. Whether law schools are recognizing and adjusting to those changes is a matter for some dispute. In previous Round Tuit posts, I've mentioned the growing divide between practitioners and academics; is that divide becoming a formal separation on the road to divorce? Dan Hull might not be suggesting a quick visit to Miguel Santos (see the Sinatra photo heading this section), but he does suggest that law schools are failing law students and the firms who employ new lawyers:

We suspect that legal education in recent years appears to have done many students a disservice by making them think that law school--by its very nature of being focused on teaching you "to think" like a lawyer--could ever give students more than 10% of what they need to be full-gauged lawyers and problem solvers.

Law done right is a hands-on profession and takes everything you have, and organizational and managerial skills the schools cannot teach or be expected to teach.

"Thinking like a lawyer" does not inform your every synapse, breath, and moment.

....

At a minimum, we wish that law schools could convey a few truths, and what might be called "old verities", to part-time clerks, summer clerks and grads:

1. Even for the most brilliant, motivated, resourceful and ambitious people, law practice is time-intensive and very hard--especially in the beginning.

2. Graduating from law school with top grades and willing to give practice the old Siwash try is only the beginning of your travail. Again, practicing law is hard. Even harder to learn how. And hard to maintain as years roll by at a comfortable and honorable level of quality. You don't get to say this much: "Sorry, Jack, but I'm on my break."

3. Real-life client problems pose extraordinary ambiguity and complexity (you can't "Google" the answers; you may fret over some projects and have to stay late; at first, it may interfere with your relationships and your "real life").

4. Maybe you'll find that private practice is not for you. It's not about the lawyers, courtliness, lawyer-centric cults of "professionalism", bar associations, wearing cool suits, prestige, money or being in a special club. If you stay in it for all that stuff, even if you make big bucks, you will regret it. No, you will hate it.

5. Clients. Talented people with JDs are legion. It's really about those you serve.

Aaron Street cites a number of factors which prospective law students should carefully consider, including signs that legal education is in the midst of a bubble, wherein law school costs and student debt loads are rising while the number of permanent legal positions are diminishing:

The law is still an honorable profession. Attorneys have a unique role in supporting justice, improving our civil society, and maintaining the rule of law. There will always be some need for talented legal professionals. At the moment, however, there are too many licensed attorneys for the demand of their services.

Even in the midst of a law school bubble, law school is still the right choice for the handful of people who truly belong in the profession.

To those prospective law students applying to law school as a fallback in a bad economy, or because you want three more years to figure out what to do with your life: please save yourself time, money, and a huge amount of stress; do not apply to law school.

What's in a name? We'll leave that for the poets to decide; all that we need to know, according to former South Dakota State Representative and convicted child molester Ted Klaudt, is that one's name is protected from mention in news media by common law copyright. Marc Randazza reports:

Klaudt claims that he has a "common law copyright" in his name, and thus any news organization or other publication that uses his name must pay him a licensing fee of $500,000.

It gets better.

Mr. Klaudt apparently started sending notices of his "common law copyright" to news agencies in order to stop them from reporting on the fact that he is serving time for raping his foster daughters. Klaudt was convicted on four counts of rape for fondling his underage foster daughters in "examinations" that he performed on them under the ruse of claiming that he was going to help them sell their eggs to infertile couples. The sick bastard got 44 years in prison for rape and another 10 years for tampering with witnesses in his trial.

Klaudt's letter to the Associated Press claims that anyone who wants to use his name must "file a written request 20 days in advance," and that he would pursue claims against anyone who violated the notice.

Uh oh. Is this one of those old verities that my law school neglected to teach me? Can anyone loan me $500,000 to license that mention of Klaudt's name earlier? (And then another $500,000 for the one in the previous sentence?) Crap. How much can I get selling my daughter's Christmas presents on eBay?

Thankfully, Mike Masnick (whose name is, for now, still free to mention) talked me down from the ledge; he notes that "[u]nfortunately for Mr. Klaudt, except in extremely limited circumstances, the US does not recognize 'common law copyright.'" Eugene Volokh explains further:

[Klaudt's claims are] legally wrong on so many levels: Short words and phrases can’t be protected by federal copyright law; common law copyright has been almost entirely preempted by federal copyright law, and in any event was applicable only to unpublished works; copyright of any sort would only apply to your own creative work, and Ted Klaudt’s name wasn’t created by him (unless it’s an assumed name); fair use would in any event allow people to use the name to refer to him, if there was a copyright claim to begin with, which there isn’t; and trademark law doesn’t preclude uses of a trademark in an article to refer to the trademarked item.

Whew. It looks like my daughter will have a happy Christmas after all.

Stephen Bainbridge was highly critical of the recent (unsuccessful) attempt by Great Britain to arrest former Israeli foreign minister Tzipi Livni under the principles of "universal jurisdiction":

Universal jurisdiction originated as a justification for states taking action against conduct like piracy and slave trading that often took place outside the reach of any state. After World War II, the victors extended the principle to include war crimes so that they could conduct the Nuremberg Prosecutions and their counterparts in Japan.

....

I do not mean to excuse the horrific crimes committed by Germans and Japanese during WW II. But even so one can argue that the expansion of universal jurisdiction to war crimes was an unprecedented and unprincipled act of fiat by the Allies to provide a legal fig leaf for their "victors' justice." Since then, moreover, human rights lawyers have taken the concept and run with it to include such things as torture, genocide, and the like.

....

How is the UK supposed to play an important diplomatic role if rogue lawyers and judges can derail the process by invoking universal jurisdiction? Perhaps it is no wonder that a virtual nonentity in the diplomatic game like Spain harbors Judge Garzón or lawyers in a bit player like Belgium went after Donald Rumsfeld. But for their invocations of universal jurisdiction, who would care what they said or did? In contrast, the UK is a major player and, moreover, wants to "punch above its weight." You can't do that if foreign public figures have to worry about being arrested when they set foot anywhere in the UK (or a country with an appropriate extradition treaty with the UK).

While we're on the subject of "universal" jurisdiction, Kenneth Anderson considered the prospects for lawyers as we head out into the larger universe, as envisioned in Robert Heinlein's Have Spacesuit Will Travel. Not to be outdone, Ilya Somin discussed the game theory economics of Han Solo's decision to join the rebellion in Star Wars:

[Economist Daniel] Hamermesh downplays the real game theoretical reason why it’s rational for Han to fight: His contribution is likely to be decisive to the outcome. After all, he’s got “the fastest ship in the galaxy,” and it can make mincemeat of Imperial tie-fighters (as we already saw earlier in the movie). Hamermesh’s payoff matrix implicitly represents this by positing that if Han fights, he increases his own payoff from 5 to 8, and that of the Rebels from 7 to 10. In truth, however, Han’s contribution might well make the difference between victory and total defeat (as in fact happens). Moreover, the speed of the Millenium Falcon minimizes the risk that Han takes should things go badly. He has a good chance of running away unscathed. I’ll ignore the fact that he also times his arrival at the battle perfectly, such that it’s clear exactly what he has to do to ensure victory at little risk to himself; if it looked like the Rebels were going to lose, he could have just as easily have destroyed Luke’s fighter instead of Vader’s and then claimed he was there to help the Empire all along.

Now the serious part: Consider how different is the situation of most people suffering under oppressive governments from Han Solo’s. If any one of them tries to rebel, it is highly unlikely that their actions will have a decisive impact on the regime’s fate. On the other hand, they, unlike Han, don’t have the Millenium Falcon to escape in. If they defy the government, they will likely be caught and punished. Of course if all or most of them resist at once, they might well overthrow the state. But it is hard to coordinate a mass simultaneous uprising in a repressive regime, and the strong incentive for any individual is to free ride on the efforts of others. Ironically, the more repressive the regime, the more severe the collective action problem involved. That’s why a mass movement to overthrow the totalitarian North Korean government is far less likely than one that overthrows a run of the mill dictatorship that oppresses the people much less.

This point also explains why most repressive regimes that are overthrown fall either because they were taken down by a small clique of insiders (who can make individually decisive contributions because of their privileged positions of power) or by a mass uprising that occurs because the regime itself begins to liberalize and the people begin to think that dissent won’t be punished anywhere near as ruthlessly as before (this is what happened in Eastern Europe and the USSR in 1989–91...). Sometimes, as in Iran this year, the people imagine the regime is less committed to repression than it actually is, and their resulting protests are brutally suppressed.

....

Han Solo, unlike most potential dissidents in repressive societies, stood to gain purely individual benefits from fighting that he could not get if the regime were defeated without his help. For example, he greatly increased his chances of getting to marry Princess Leia and becoming a high-ranking officer in the Rebel Alliance. In Return of the Jedi, we learn that he has been given the rank of general, which is extremely rapid advancement indeed from his previous position as an impecunious smuggler. Marrying a princess and becoming a general are not likely outcomes for your average potential North Korean or Iranian dissident.

Happy Holidays to you all, including even the social media consultants.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., NFL.com, The Selvedge Yard (Bob Willoughby Photo), and Paris Odds n Ends Thrift Store.

Keep Fighting the Good Fight

Chris Sherliker issues a call to arms with this week's Blawg Review #243:

[S]hould not the steely and dogged courage and determination to fight back, often in the face of overwhelming odds, often in total default of resource and often when the very capacity to fight has itself been exhausted, be the distinguishing hallmark of our profession?

The case is bad. The facts are poor. The evidence is not there. It seems a forlorn endeavour. It seems a hopeless cause.

No matter. We will fight. We will fight back. We are fighters to the core. We have no choice. We must oppose to overcome. We will keep alive the intermittment spark of hope. Whatever the cost. However long and hard the fight may be.

Summoning the fighting spirit of the indomitable Winston Churchill (whom we yanks can happily note was half American), Sherliker urges us not to let the discouragements and adverse circumstances of the past year defeat us or diminsh our professional zeal. He rounds-up the best of the past week's legal blogging, including lawyers fighting overcriminalization, lawyers fighting homelessness, and lawyers fighting champagne cork and bagel slicing injuries.

The Blawg Review Editor will fight the good fight himself next week; the first Blawg Review of 2010 will be hosted by Charon QC the week following.

TGIS: Thank God It's Schadenfreude! (249)

This week's joy in the misfortune of others comes courtesy of the Telegraph (from Tuesday, December 15; link good at time of posting):

Staff at the Great Yarmouth Sea Life Centre in Norfolk give turtles a seasonal treat of brussel sprouts at Christmas which provide a healthy dose of vitamins, minerals and fibre.

However, the turtles, like humans, are prone to heavy bouts of flatulence after eating the vegetables.

Last year a turtle at a Sealife Centre triggered overflow alarms in the middle of the night after the splashes from gassy bubbles hit overflow sensors.

Now the Yarmouth turtle tank -12 feet in depth and width holding 250,000 litres of water along with George the 3ft long green turtle - has been partially emptied for the festive season.

Thousands of litres have been removed to lower the water by a six inches and keep the sensitive alarms clear.

Displays Supervisor Christine Pitcher said: Last time an aquariist had to dash to the centre in the middle of the night, so we're not going to take any chances.

[Previous TGIS]

A Round Tuit (11)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

I'm a proud non-Facebooker. I have my blog (blogs, if you count my occasional joint endeavor with Mike Semple Piggot at Unsilent Partners), a Twitter account, and a presence here and there on a few social networking sites, including LinkedIn. I don't see much need for another at this point and, frankly, I don't see much need for Facebook at any point. I'm not inclined to change my mind after reading about the recent changes Facebook has made to its privacy functionality. As I'm a "never will join Facebook", I suspect that Facebook couldn't care less what I think of those changes; they should be a bit more concerned about the uniformly-bad reactions I've seen from those who do use their service and others who are very-well-versed in privacy matters. Danielle Citron has praised the site as a "privacy norm entrepreneur" for some of its previous innovations, but is pretty non-plussed by the latest revisions to their privacy settings:

Facebook’s launch of its new privacy settings this week, however, dampened my enthusiasm about its role as a privacy change leader. To be sure, Facebook should be credited for explaining consumers’ choices more clearly with its new privacy settings. But unfortunately they tend to push users to share more information, more widely, than the previous settings. They also don’t provide a default setting that would permit more granular privacy choices vis-a-vis one’s social relationships.

Kevin Bankston and the Electronic Frontier Foundation have taken a close look at the new terms and are critical overall; though they consider the simpler privacy settings and per-post privacy options good changes from prior functionality, other changes are more suspect:

The new changes are intended to simplify Facebook's notoriously complex privacy settings and, in the words of today's privacy announcement to all Facebook users, "give you more control of your information." But do all of the changes really give Facebook users more control over their information? EFF took a close look at the changes to figure out which ones are for the better — and which ones are for the worse.

Our conclusion? These new "privacy" changes are clearly intended to push Facebook users to publicly share even more information than before. Even worse, the changes will actually reduce the amount of control that users have over some of their personal data.

Not to say that many of the changes aren't good for privacy. But other changes are bad, while a few are just plain ugly.

As Kashmir Hill noted, the rank-and-file Facebook user isn't the only one who might be tripped-up by these privacy changes — Facebook CEO Mark Zuckerberg also found his entire profile, shirtless party pics and all, suddenly a bit more public than he might've preferred. (Thanks to Diane Levin and Peter Black for leading me indirectly to that last link.)

Especially now, it seems that friends shouldn't let friends friend them on Facebook, and that's exactly what Cathy Gellis suggests. She explains that although Facebook describes the relationships between users as "friending", these operate very differently from friendships in the real world and can be a trap for the unwary:

There are lots of horror stories about Facebook users being "outed" in some unfortunate way in their real lives by something seen on their Facebook pages, like people being denied insurance coverage for looking too healthy, or even fugitives ending up captured because they posted about where they were. But interesting as those stories may be, what I want to focus on is the illusion of privacy Facebook fosters for its users, which thus enables so many to later be blindsided when content they thought was private is later proved not to be. In particular, I want to focus on the weakest link: friends.

The Facebook privacy model has many limitations, not the least of which is the cryptic and unintuitive UI that prevents even the most privacy-conscious people from using what privacy protections Facebook does afford as effectively as possible. But the most major shortcoming may be on its conceptual model of privacy through relationships.

In real life, it's a sensible model. You know whom in your life you trust, and with what information. You know who will keep your secrets, and you endow people with your information accordingly. Facebook, however, despite its concept of "friending," does not adequately mimic real life "friending." Real life has degrees of friendship, whereas for Facebook it tends to be all or nothing and it is hard, if not completely impossible, to endow "friends" with varying degrees of your information in the kind of nuanced way you would in real life.

Nuanced friendships, for better or worse, exist in the real world between judges and the lawyers who appear before them; these relationships are not forbidden per se by applicable ethics rules, but as Stephen Boyett reports, a recent Florida ethics opinion would forbid judges and lawyers from "friending" one another on Facebook, finding that such a link-up creates an appearance of impropriety regardless of a judge's substantive statements and conduct. Boyett notes, however, that the prohibition doesn't apply where lawyers become "fans" of a judge's campaign page:

[T]he Committee declined to set the same bar for judges’ campaign pages on sites like Facebook, stating that lawyers may be “fans” of an election effort without raising similar questions of undue influence so long as the manager of the judge’s page cannot “accept or reject the lawyer’s listing of himself or herself on the site.” Presumably, the affirmative act of accepting a “fan” would mirror the process by which judges and lawyers list each other as friends on their personal pages, raising questions of special influence.

Peter Vogel also noted the Florida opinion and suggests that its narrow premise makes its impact difficult to predict. Venkat Balasubramani thought that the Committee's singling-out of Facebook was "off base":

My question to the advisory committee is whether this means that it's now inappropriate for a judge to have lunch with a lawyer friend, or engage in email banter with lawyer friends? Is attending the same party now off limits? I assume these actions would still be viewed as appropriate, given that lawyers and judges interact socially (and publicly) all the time. What's so special about Facebook friendship?

Ilya Somin is also a bit perplexed about the real-world-versus-Facebook distinction Florida seems to have drawn; he wonders whether this different treatment is attributable to either misunderstanding or illogic:

At first glance, it might seem as if the opinion reflects a generational divide. The older members of the Committee may simply not understand how Facebook and other social networking sites work, and therefore don’t realize that a Facebook “friendship” doesn’t necessarily signal any kind of close relationship. Indeed, many Facebook friends don’t know each other in the real world at all. Only those ignorant of the way these sites function would assume that a Facebook friend is likely to be “in a special position to influence the judge.”

The problem goes deeper than that, however.... [T]he Florida Committee’s approach actually treats Facebook friendship between lawyers and judges as a more serious breach of judicial etiquette than a genuinely close friendship between the two. I could understand the logic of a rule that forbade all social fraternization between judges and lawyers who might appear before them. Such a rule would be unduly harsh. Yet it would at least be consistent. But I can’t understand the justification for a rule that bans essentially innocuous Facebook “friendships” but turns a blind eye to real friendships.

Robert Ambrogi has discussed the Florida opinion before; this week, he reports that South Carolina has joined Florida in addressing the ethical implications of judges' Facebooking:

The South Carolina opinion, issued in October, concerns a narrower issue than did the one from Florida. It addressed friending by judges, but not of lawyers who may appear before the judges. Instead, it addressed the question of whether a judge may friend law enforcement officers and employees who work in the judge's office.

The South Carolina Advisory Committee on Standards of Judicial Conduct concluded that a judge may be a member of Facebook and may friend law enforcement officers and employees as long as they do not discuss anything related to the judge's official position.

....

The key difference between the two opinions is in who a judge may friend without calling into question the judge's impartiality and integrity. A judge who friends courtroom employees provides no cause for concern, South Carolina says, but a judge who friends courtroom advocates does, Florida finds.

Even if ethics rules actively encouraged friending between them, I suspect that Connecticut public defender Gideon and Seattle DUI attorney Nick Juhl will not be writing cheerful notes on the other's Facebook wall anytime soon. Gideon has had enough of anti-PD advertising "articles" seeded by defense attorneys' marketers and criticized Juhl's firm:

Toward the end of that “article” is the money shot: links to a seattle dui attorney....

The article, however is not written by the Seattle DUI attorney. It’s written by some dude named Justin Steely. But when you click on his name, it takes you to the page of someone named “Austin Richeit”. So what’s a man like me to do? Google, obviously. The name looks like a fake. What of his doppelganger Justin Steely? Also a pseudonym of dubious repute.

So now, who or what is this Seattle DUI firm? ....Best I can tell it’s for some firm named Lovik & Juhl....

So either Lovik or Juhl created these pseudonyms to drive traffic to their site (and decided to unnecessarily trash public defenders along the way) or they hired someone to do the same.

That's certainly valid criticism of a questionable marketing practice, but what caught the attention of the Seattle Weekly's "Daily Weekly" blog was Gideon's deeming Juhl (so the Weekly surmises) a douchebag. Though Gideon wrote in comments to his original post that he did "feel a little bad for pulling out the d-word'", the Weekly folks were eager to fan the flames:

I've got e-mails in to both Lovik and Juhl to formally confirm or deny the d-bag claims. In the meantime, we can all only hope that the lawyers will have an equally mature comeback for Gideon, the scorned public defender who pulled back the curtain on the mighty and all-powerful Oz.

May I suggest, "poopyhead"?

Though Gideon blogs under a pseudonym, he's established a great deal of credibility throughout the legal blogosphere; he's also known in the — gasp! — real world by many other legal bloggers. Thus, even if he doesn't say exactly who he is, we can trust that he is what he says he is. Probably. "Trust" online doesn't come with a name (and isn't precluded for lack of one), something of which Carolyn Elefant was reminded when "James Chartrand", an ostensibly male copywriter and blogger, revealed that "he" was really a "she". Elefant writes:

But Chartrand did more than simply leave out information about her personal life or use a fake name. Instead, she intentionally created a completely false persona. Chartrand called herself a front man for her all male company, and described herself several times as a dad. She dissed mommy bloggers for being intolerant when she (then posing as he) "risked [her] balls" to comment in their online fora. She concocted a bogus excuse for not putting a photo of herself on the site. Even taking at face value Chartrand's contention that her kids would have starved if she didn't pose as a male (and it's hard for me to take anything that this blogger says at face value anymore), there were many other less offensive ways that Chartrand could have kept her gender hidden without creating an entirely fake facade.

....

As Kevin O'Keefe says... lawyers need to know whether a prospective blog or social media consultant whether they walk the walk. In this situation, if the only way that a copywriter can figure out how to sell services is by being dishonest, well, then, that's probably not the kind of person I want to work with.

Scott Greenfield takes that a step further, suggesting that we all need to be asking hard questions of those whom we rely on for internet-related guidance:

A whole industry has grown to promote the use of the internet to "network" and create "trusted relationships" with others. They teach us to market to potential clients and other lawyers by creating trust. Trust is the predominant, and most abused, word in online marketing.

It's hogwash. Utter, sheer,unadulterated hogwash.

....

On my website is my complete resume, with dates and details about who I am and what I've done. Every inch of it is completely verifiable. It's not their for promotional purposes, but transparency. Anyone and everyone who is interested can learn anything they want to know about me. I am what I am, no better or worse.

Some of the loudest, most prominent people addressing the blawgosphere aren't who they say they are. Not even close. James Chartrand is a woman. It doesn't matter if you can understand why she chose to change her gender, the point being that she could, she did, and she became something she isn't. Whether you want to see it as a white lie, it's still a lie.

Is there somebody who wants to be your guru? Got a product or service to sell? Says they can teach you how to get rich and famous like them? Have tens of thousand of sycophants, all believing they hold the magic secret to success? Do they emphasize how it's all about trust? Check under the hood. Look very closely. You may not like what you see.

Brian Tannebaum hasn't been shy about checking under the hood, naming names and confronting those attorneys whose online personae don't match-up with their professional credentials. His Twitter take-down of Kathleen Scanlon, a disgraced New York attorney who participated in a series of mortgage frauds, was a work of art. It's a damned shame that Scanlon deleted her side of the conversation; fortunately, reading through Tannebaum's side of the exchange (and Googling information about Scanlon's fraud and indictment) tells you all you need to know about her.

While this can all seem quite discouraging, I for one will continue to count as friends — and count on as friends — those whom I've "met" only in the virtual world. While in these modern times, "friend" does not mean exactly what Facebook thinks it means, it does still mean something. Notwithstanding, as the social networking visionary Ronald Reagan advised, "Trust, but verify."

I make no apologies for remaining a true believer in the power of the free market, even after all the turmoil we've experienced over the last couple of years; I'll admit, though, that it's been a little more lonely of late over here in the free market camp. It's nice to have Bruce MacEwen for company:

Markets permit, enable, encourage, and all but insist upon individuals finding their own highest uses in society (the real meaning of the Invisible Hand, as I construe it). Few things contribute more highly to human happiness.

Scarred as we all are by the events of last September (2008, that is), we may be tempted to retreat to the faux security of command and control by the best and brightest. Don't go there; don't even be tempted to go there.

....

[I]f you think the Thacher/Reagan era of deregulation and its aftermath was a misguided detour, think again. To recap [figures show economic growth from 1991 to the present]:

• US up 63%
• Canada 60%
• UK 48%
• France 35%
• Germany 22%
• Italy 19%
• Japan 16%

Finally, if you think the Asian tigers are overtaking the US, here, courtesy of David Brooks in today's NYT, is an incontrovertible rebuttal: In 1975, US GDP amounted to 26.3% of world G.D.P. The US share today? 26.7%.

The genius of the free market, present and potent since before (yes, even before) Adam Smith, is not to be gainsaid.

Still, just because close government supervision of the economy hasn't been particularly successful here or elsewhere in recent... er, centuries doesn't mean that the next time we try it, we won't do it right. Perhaps the contributors to the recent "Government and Markets" conference know what they're doing; Dan Ernst points to the just-published conference volume Government and Markets: Toward a New Theory of Regulation, which promises:

After two generations of emphasis on governmental inefficiency and the need for deregulation, we now see growing interest in the possibility of constructive governance, alongside public calls for new, smarter regulation. Yet there is a real danger that regulatory reforms will be rooted in outdated ideas. As the financial crisis has shown, neither traditional market failure models nor public choice theory, by themselves, sufficiently inform or explain our current regulatory challenges. Regulatory studies, long neglected in an atmosphere focused on deregulatory work, is in critical need of new models and theories that can guide effective policy-making.

Hey, at least they're actually thinking-through this regulation thing; that's more than can be said for those who rushed to pass the Sarbanes-Oxley Act. With the Supreme Court scrutinizing the Constitutionality of some of the Act's provisions, Rick Pildes discussed, in a pair of posts, the Court's focus on dual for-cause removal requirements at the Public Company Accounting Oversight Board (PCAOB) created by SarBox. In his first post, he writes:

Independent agencies, like the SEC, the FCC, the FTC, have been held constitutional since the famous Humphrey’s Executor case. But today, Justice Scalia asserted -- at the very start of the government's argument -- that independent agencies are constitutional only because the President has the power to remove the Chair of these agencies. This did not seem a casual comment from Justice Scalia; it also seemed that some other Justices might share this view.

....

I find it hard to believe that Justice Scalia, or any other Justice, really thinks that, once he sits down to think it through. But that would seem to be the logic of the position that independent agencies are only constitutional if the President can remove their Chairs.

In his second post, Pildes describes some of the collateral effects a Court rejection of the PCAOB based upon the dual for-cause removal reasoning might cause:

[T]here was virtually no discussion of what the consequences across the government might be if the Court were to hold unconstitutional the administrative structures created to enforce the Sarbanes-Oxley Act.

....

For starters, it’s worth noting that this would create special constitutional doctrines that apply only to independent agencies. Other agencies and departments, like the Treasury Department or the EPA, can include inferior officers protected from at-will removal. But the independent agencies could not.

....

In any event, on the substantive issue: Dual for-cause removal structures, or variations of them, might be more common than the Court assumes. The question is how common is it for independent agencies – the various “commissions,” such as the FCC, FTC, FEC, NRC, and the like – to have inferior officers working for them who are protected by “for-cause” removal provisions. The entire Senior Executive Service (SES) of the government, which includes many high-level policy figures (who are certainly inferior officers) is protected by such provisions. See 5 U.S.C 7543 (a). Employees who fall under the protections of the Civil Service system are similarly protected by “for-cause” removal provisions, see 5 U.S.C. 7513 (a); I cannot say how many, if any, of this latter group would be considered inferior officers. From these sources alone, there are probably, then, hundreds of officials in the independent agencies who are separated from direct Presidential control by a “dual for-cause” removal structure.

The same instincts which led to the passage of Sarbanes-Oxley in the wake of the Enron, Worldcom, and Tyco scandals are now driving new regulations and legal actions to "fix" the mess caused by the meltdown in the subprime mortgage market. Whether the executives whose firms controlled that market will be held legally responsible for the debacle is an open question. As Kevin LaCroix reports, recent comments by the CEO of a capital firm have caused a bit of controversy:

In a provocative statement suggesting the unlikelihood of "damage awards" against subprime lenders’ directors and officers, XL Capital Ltd. CEO Michael McGavick yesterday told a Goldman Sachs Group conference that "being collectively stupid is not a basis for a lawsuit," according to a December 9, 2009 Bloomberg article.

As reflected in the article, McGavick indicated that investors have little chance of extracting damages awards from executives and board members at firms that lost money, as the article put it, "betting on subprime mortgages." McGavick is quoted as saying that its "very hard to pick out the management team that did something wrong to the level that the law requires."

....

As an initial matter I note that while it may be true that "collective stupidity" hardly represents a legal theory on which liability might be based, it also is not a very promising defense. Even setting aside the colorful use of the word "stupidity," it is not a great defense to argue that everybody managed to get it wrong, as proved to be the case in the connection with options backdating, for example.

For now at least, the folks who are really dealing with this mess aren't in Washington, D.C.; we're out here in the real world paying our underwater mortgages or not paying them and finding a way to live with the consequences. According to Mike Cernovich, those of us in the former group are "Debt Slaves":

You buy a home as an investment. The home's value drops, and might not rebound for a decade. Paying your mortgage would be no different from running a business at a loss. Yet like a good little debt slave, you'd feel guilty walking away. "But I promised the bank I'd pay."

That sentimentalism is exactly what banks are betting upon. It's like giving two weeks' notice. The company demands that you give notice before quitting. Yet many times they'll fire you on the spot without giving you two weeks' severance. "It's just business," they'll say, "It's not personal."

Walking away from a home is just business.

....

It's time for a New American Morality. It's time that the average American played by the same rules banks play by.

Admittedly, I felt more than a little defensive when I read Cernovich's post, but even after rereading it a couple of times I'm not sure that the premises of his argument are entirely correct, at least not for all of us. While a home is an investment, it's not just an investment. Stocks are just an investment; a home is something in which you build your life and the lives of those in your family and it's not a simple matter to cast that aside, even when it makes business sense to do so. Likening paying an underwater mortgage to running a business at a loss doesn't clarify things much for those of us who've owned our own small businesses or known others who have. After all, not all intangible value can be accurately dismissed as "sentimentalism". Still, I think that Cernovich's discussion of the morality of mortgage default is a worthwhile one. It's certainly given me something to think about.

In my underwater home, Sundays from ten in the morning onward are all about watching football and considering standards of appellate review. Wait a second... that's Joseph Blocher's home; at my house, there's only the football. Blocher's recent post concerning the instant replay review standards in the NFL has prompted discussion across the blogosphere; he wrote:

Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires “conclusive” or “indisputable” evidence to overturn an incorrect call? Why not review them de novo?

....

An umpire or referee operating in real time is not in a better place to make a correct call than another referee (or even the same one) viewing the same play, from multiple angles, in slow motion, on a monitor. Am I missing something, or aren’t the usual arguments for having a strict standard of review—primarily, the relative competence of the factfinder—absent in the context of instant replay?

Ilya Somin suspects the reason may be a pragmatic one:

One possible answer to Blocher’s question is that allowing de novo review on instant replay challenges would lead coaches to challenge more calls, which in turn would delay games unduly. However, the NFL has already addressed this problem by giving each team only two instant replay challenges per game. Even if more coaches will now use both of their challenges, the added loss of time is unlikely to be great. Moreover, any harm caused by loss of time must be weighed against the benefits of getting more critical calls right (presumably, rational coaches will save their challenges for dubious calls that are especially important).

Josh Patashnik's conclusion is that the stringent review standard is rooted less in pragmatism than in obfuscation:

First, I think it's worth pointing out that, just as appellate courts often don't defer to trial courts as much as their doctrines suggest they should, most referees don't truly impose an indisputability standard. If it's genuinely impossible to tell from a replay which team has the better claim, the call on the field will usually be upheld, but there are plenty of cases in which a call is reversed even though it's not completely conclusive that the call on the field was wrong. In practice, it's more like an intermediate standard--something more than de novo review, but something less than true indisputability.

Second, I have a different explanation for the heightened standard of review. It has to do with the interrelation between arbitrariness and legal procedure. One of the dirty secrets of football is that a huge number of referees' calls are, to a very large degree, arbitrary.... In these cases, review might help at the margin, but won't make the ultimate outcome appreciably less arbitrary, because the calls are so subjective even with perfectly clear video evidence.

....

But suppose instead a very close call goes for your team on the field, is challenged, and is overturned even though the video evidence is inconclusive. That outcome, I think, would cause most fans significantly more anguish than the first scenario described above. In part, this is because of settled expectations--once the call goes for you on the field, you begin to internalize the outcome, and the loss of that benefit exceeds in magnitude the gain in utility you would get by having a marginal call reversed to go in your favor. But perhaps more important, by reversing the outcome, it draws attention to the arbitrariness of the call in the first place.

It seems logical, but as everyone knows, there's nothing arbitrary about NFL football; it's all a cold, calculating conspiracy to screw over the Seattle Seahawks and their long-suffering fans. Somin also remains unconvinced:

In my view, concerns about the exact nature of the process are only a tiny fraction of the pain fans feel when they think a bad call has gone against them. In any event, I think any small increase in hurt feelings is likely to be outweighed by increases in the accuracy of calls — to say nothing of the joy of the fans whose team wins the instant replay challenge.

Joy? I wouldn't know about that. Go Seachokes.

If there's a division between the haves and have-nots amongst football fans, it's nothing when compared with the widening division between academics at top law schools and practitioners in the field. Dave Hoffman recently suggested that a joint JD/PhD might soon be a must-have for entry into academia:

Five years ago, as law fellowships themselves exploded onto the scene, the purely strategic choice weighed decisively against the PhD outside of a few specialized fields –e.g., law and history, law and philosophy, law and corporate finance — where the PhD was a huge value-added on the entry-level market. But now consider today’s market, and put yourself in the position of an individual about to choose between applying for a two year fellowship or a PhD program, and your goal is to maximize the chance of getting a job at an American law school. In my view, it’s an easy choice (with a few qualifications): go PhD or go home.

Scott Greenfield, who's been amongst the most vocal in the blawgosphere in criticizing the disconnect between the theoretical law taught in schools and the practical law necessary beyond those schools, was concerned:

The implications are serious for lawyers, as the nice folks who are supposed to be teaching youngsters to be lawyers have made the personal choice to put as much distance as possible between themselves and the nastiness of legal profession. In the past, one might at least anticipate the most lawprofs spent a couple of years in the library of a large law firm or prosecutors office where they believed that they now knew everything there was to know about being a lawyer.

If Dave Hoffman is right, the closest they will ever come to a courtroom is one that has the word "Moot" in its name. Instead of gaining the benefit of learning about life in the trenches, their world view will be formed while running from one campus building to another, never realizing that there is a whole world outside the university to which they've never been exposed. And these will be the men and women who train future lawyers.

....

As law schools continue to compete for students, perhaps this will present an opening for those schools that aren't likely to be the top draw for the brainiest PhDs to counterprogram themselves as the practical law schools, "the law school where you actually learn how to be a lawyer." We can dream, can't we?

Ken Adams can see both sides:

If as a general matter practitioners are driven by expediency and are pressed for time, it would seem unpromising to leave to them the task of preparing the analytical underpinnings of transactional practice. With some notable exceptions... most practitioner-prepared materials that I consult are, at best, a good starting point for a given analysis. And they tend to recycle the conventional wisdom.

But I’m hardly suggesting that rarefied academe—more PhDs!—is better placed to produce analytical materials for transactional work. Instead, I’m simply suggesting that the odds are against reliable, insightful, and innovative materials being produced as a sideline, or by “volunteers.”

....

So we’d be better off if more transactional materials were produced by people with the necessary aptitude and the willingness to invest the time required to produce works of lasting value. We could do with more scholarship, and if you can deliver it, who cares what hat you wear.

Like many who don't try cases to juries on a regular basis, if ever (and like many who do), I've occasionally had my doubts about the capacity of juries to resolve complex issues rationally. The D.A. Confidential blog has a bit more faith:

[I]ndividual jurors can fixate on irrelevant details, I have spoken to every jury I have tried a case in front of, and there's no doubt that's true. But, my experience has been that in almost every instance, the one juror who is going off the reservation gets pulled back in by the other eleven. That's the beauty of having a dozen of 'em. You see, judges can fixate too. All of us can, and I'd argue that the more professional or experienced or knowledgeable we are in a field, the more entrenched we become in our fixations. But when you have twelve lay people who are not sure of the law, not masters of forensic science, they can bend and sway with the input of other people....

I would also argue that if a jury gets so hung up on an irrelevant point that a decision is not reached, or a wrong one reached, then that's our failing as lawyers. Throughout the trial we need to be explaining what matters and what doesn't, and we can do this explicitly in opening statements (to a great degree) and most definitely in closing argument.

If that blogger is adamant that closing arguments are necessary, Norm Pattis isn't entirely sure. Recently, he and his client made a tactical decision to forgo their closing arguments when it seemed a prudent risk to do so:

Yesterday, the prosecutor in my case gave a textbook example of hide-the-ball opening argument. The first three minutes of his "argument" was merely a repetition of the complaining witness' testimony with simple declarative sentences about what other witnesses said: a sort of TV Guide version of the trial condensed into uncritical and bland prose that were not intended to persuade. He spent the balance of his time merely reciting the law the judge was about to read. He ended with a simple request for a guilty verdict. The state failed in its opening to address any of the weaknesses in its case. It was not really argument at all.

....

If by arguing we really were going to do nothing more than give the state a final shot at what we had already laid before the jury, what, frankly, was the point? We picked a smart and self-confidence jury. We trust that group.

So we waived closing argument.

....

Of course, I worry that I made the wrong call in waiving argument. But part of that is sheer ego. I argue well. Like most defense lawyers I harbor deep fantasies of setting men free with the power of my voice and my skill as a rhetorician. But trial is not about the lawyers.

Pattis' fellow defense attorney Scott Greenfield wished him well but didn't agree with the decision to skip closing arguments:

[W]hen Norm says that he liked his jury, "[w]e trust that group," it's hubris run amok.

Juries are not to be trusted. It's not that the jurors aren't trustworthy. It's not that they are stupid or foolish or evil or hostile. It's that we never (emphasis on never) know what's really going on in their heads. We want to believe that we've picked a "smart and self-confident" jury, but we can't tell. And if they're self-confident, and it's not clear what that means with regard to a jury, how do we know if those satisfied smiles mean they are for us or against us. Both smiles look the same.

....

Closing argument is when we put it all together. We add up all the points scored throughout the trial and, mustering every ounce of our persuasiveness, make it as clear as possible. If we're lucky, they were listening and heard us win our points. When we raise it in argument, something clicks in their heads and they say to themselves, "oh yeah, I remember that." Now it has meaning. Until summation, it was one of a great many loose sounds that floated through the courtroom, disconnected from the many others.

....

As for me, I've never waived closing argument and can't imagine ever doing so. Let the prosecutor have two shots arguing against me. I only need one. But I would never give up that one shot to explain to the jury what they've just experienced.

Pattis' confidence and judgment might well have been well-founded, but as things turn out, so were his doubts; his client was convicted:

Should I have not waived closing argument and told the jury what I thought? Certainly, the decision not to do so is controversial. But I stand by the tactical decision. A jury prepared to convict on the decade's old allegation of a single witness without corroboration is a runaway train. Better perhaps to have thrown myself in front of it, I suppose.

Tom Goldstein announced what will surely be a welcome addition to his blog's incomparable analysis of Supreme Court matters — plain English:

The Supreme Court deals with a lot of technical legal issues. Our posts tend to be written in the same way, so that if you aren’t a lawyer it can be hard to understand exactly what we’re saying. We try not to go too deep into jargon, but it’s hard. As a result, we don’t connect with all of our readers as well as we could. Many of you aren’t lawyers. It’s important that everyone understand the Supreme Court, and we want to be a comprehensive resource.

So, on a regular basis, we’re going to step back and write about what’s happening at the Court in plain English.

One post at the SCOTUSBlog site this week which, while perhaps not meeting the "plain English" standard, was well-worth reading was Lyle Denniston's analysis of the "Honest Services" law at issue before the Court, a law he suggests is "beyond saving".

I'll conclude this week with a couple of cheers and jeers. Cheers to Geeklawyer for single-handedly saving the Inner Temple and Middle Temple libraries:

As a deeply, and unjustifiably, modest man Geeklawyer is too often loathe to accept the praise rightly due to him. Perhaps on this one occasion he may ascend to the stage to receive the bouquets of roses from a grateful legal librarian ship community. It seems that Inner and Middle Temple have decided that merging the two libraries is not as attractive a cost saving option as initially thought. Geeklawyer has posted on this topic before in uncharacteristically intemper­ate terms.

....

Geeklawyer will now be able to continue his second career of supply secret gins at work to the lady librarians, in exchange for sexual favours and being able to steal Halsbury’s laws.

Not as deserving of accolades this week, however, was the Department of Homeland Security which, as Kevin Underhill reports, managed to lose track of a criminal fugitive who worked in one of their offices and continued to work for them in another office after she fled:

Reports last week said that Tahaya Buchanan had simply walked into the U.S. Citizenship and Immigration Services office in Atlanta, despite the existence of a nationwide alert seeking her arrest. In fact, she apparently did this repeatedly for quite some time, because, you see, she worked there.

....

"We found it surprising [and] alarming," [prosecutor Michael] Morris said, "that an employee of the Department of Homeland Security is a fraudster, and we do not understand how she could have remained employed there with an open criminal warrant for her arrest remaining on the interstate system without being discovered."

NOTE: This post was updated after publication to fix a few typos, one which ruined an already weak joke. For these I apologize sincerely and unreservedly to everyone who read the uncorrected post or, indeed, anyone connected to the internet around that time.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Matthiu (DeviantArt), Organizations and Markets, and Paris Odds n Ends Thrift Store.