A Round Tuit (25)

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've done a couple dozen of these "Round Tuit" posts and, truth be told, sometimes I'm hard-pressed to define a most important (or at least prominent) topic of the week, let alone two. This past week, however, it's simple to see that the drama surrounding the execution of Hank Skinner in Texas was undoubtedly the most significant topic discussed in the legal blogosphere.

Skinner, who was convicted and sentenced to death fifteen years ago for the the triple-murder of his girlfriend and her two children, was within several hours of execution last Wednesday. There's been some credible information recently that Texas may have executed an innocent person; more recently, a judge cited numerous instances of death row inmates being absolved by DNA evidence when he ruled that a Texas death penalty statute failed under that state's constitution. So, was Hank Skinner guilty of the crimes for which he was going to be put to death? He was convicted, but then many innocent folk are. Does the DNA evidence collected in his case support the conviction?

No one knows.

Skinner claims that this evidence will show that someone else committed the crimes for which he was convicted. He and his attorneys had asked that as-yet-untested DNA evidence be tested; prosecutors refused. On the eve of Skinner's execution the defense asked the Texas Board of Pardon and Paroles for relief; they refused. Thus, with hours remaining before his sentence was to be carried-out, Skinner's fate rested in the hands of Texas Governor Rick Perry and the United States Supreme Court.

Noting the defense's efforts and the seemingly-commonsense notion that we should be sure of a man's guilt before he's executed, Brian Tannebaum was cynical about the public's interest in the fate of a death row prisoner:

Eh. We've got ourselves an execution today. Talk of possible innocence is distracting.

Some students at Northwestern looked at the case and compared DNA - they determined that although at his trial there was DNA showing he was in the house where the murders occurred, Skinner was innocent.

Add that to no confession or eyewitnesses, no motive or record of a violent past on Skinner's part, and it sounds like that pesky DNA should be tested.

Seventeen death row inmates have been released after DNA testing proved their innocence.

But hey, everyone catch Idol last night?

Walter Reaves has been there before, waiting for a phone call staying a client's fate; consequently, some of his thoughts last week were with Skinner's counsel:

One of his lawyers is Rob Owen. Rob is a friend of mine, and one of the best death penalty lawyers around. It takes a special kind of lawyer to devote themselves to death penalty work. They invest themselves in their cases, and developed friendships with their clients and families. They do so knowing that in the end they are going to lose most of the time. Each time they are devastated, but they pick themselves up and go on to the next case.

....

Rob and the other lawyers representing Hank Skinner are now basically on a death watch. They have done all they can do, and all that is left is waiting. They wait for the call from the governor’s office, which will tell them whether Hank Skinner lives or dies. It’s almost like waiting in an emergency room for the doctor to come talk to you.

Their ordeal brings back memories of my own. Memories that are not pleasant. It was not long ago that I was in the same position they are, waiting for news on Todd Willingham. I had hoped up until the final call that someone was going to step in and stop the proceedings. To this day I still do not understand how so many could look the other way at compelling evidence of innocence. Yet they did. The process and procedure was more important than the result.

Several bloggers sounded a call to action. Antonin Pribetic urged us to call and fax Governor Rick Perry and to sign an online petition:

Whether you support or oppose the death penalty, the issue is not simply factual guilt or innocence. The issue is access to justice. See also, The Skeptical Juror's post and The Medill Innocence Project coverage and ask yourself: why won't Texas Governor Rick Perry grant a a 30-day stay of execution to allow for DNA testing?

....

I implore my readers to call Governor Perry at Tel: 512-463-1782 Fax: 512-463-1849 Main number: 512-463-2000 or sign the Change.Org online petition.

David Sugerman authored a compelling open letter to the governor:

Those who oppose the death penalty make their strongest arguments by pointing to executions of prisoners who may be innocent of their crimes, notwithstanding their convictions. Death penalty opponents make their most compelling case when they point to major irregularities in proceedings. In short, execution of Hank Skinner without confirming DNA testing assists those who oppose the death penalty.

If DNA testing confirms Mr. Skinner’s guilt, nothing is lost by the stay. If on the other hand the testing establishes wrongful conviction, then avoiding his execution demonstrates the integrity of the Texas criminal justice system.

Jeff Gamso applauded those who called, wrote, faxed, tweeted, and otherwise contacted the governor, urging him to reconsider, but wasn't optimistic about the effect those calls would have:

Done? OK. Good for you. You did the right thing.
Unfortunately, it was almost certainly a waste of time. See, you want to know.

You want to stop the killing of an innocent person, or at least to be sure that Hank Skinner isn't innocent, before going and killing him. You're reasonable and responsible. You're detached. The truth matters to you. You're offended at the possibility that we could be making a mistake just because.

Good for you. You should feel that way.

But Perry doesn't. Oh, I don't think he's so cold-blooded that if he honestly believed Hank was innocent he'd ignore it and let the killing go forward today. He's not a sociopath. I think, that is, he's better than he imagines Hank Skinner probably to be.

....

Perry doesn't know and doesn't want to know and doesn't admit, even to himself, that there's a question. That's not confirmation blindness. He's not misreading the record to support what he believes. He's ignoring the record because it's easier never to know.

....

So do the right thing. But don't expect it from Perry.

Scott Greenfield marked "our last day with Hank":

For those who feel comfortable with the death penalty, Hank Skinner's death may also be the death of their comfort. The issue here is that there is untested DNA which may well show that Skinner isn't guilty, but the State of Texas will take no chance of upsetting its conviction and sentence. They could have tested it all and, if it went badly for Skinner, still kept his date with death. Instead, they fought it off.

....

Even for those who believe that the death penalty is a necessary and viable deterrent, the question looms why Texas wouldn't let the Skinner team have the rest of the evidence tested for DNA. If guilty as sin, then the DNA will show it. That Texas refused, stonewalled, fought and, upon the death of Hank Skinner, will have won, leaves a lingering doubt that no amount of blind faith can ignore.

There is no platitude that covers the execution of Hank Skinner to make us feel good about his execution. It doesn't matter what the outcome of the DNA tests would be. It only matters that Texas managed to avoid the tests and kill him anyway.

Mark Bennett's was the most eloquent voice during the hours before and after Skinner's scheduled execution time and he summed-up my own thoughts better than I could hope to:

I am not morally opposed to the death penalty. I recognize that “thou shalt not kill” is not a rule that can always be practically followed. There might be people who cannot be deterred or incapacitated by a lesser penalty. If we could ensure that only such people were executed, I would not oppose the death penalty.

But the mere possibility that factually innocent people might be executed is a deal-breaker for me. Death is different than other penalties, and we should be certain before imposing it.

Guilt, in death penalty cases, is determined by a death-qualified jury. A death-qualified jury is, by definition, not a representative subset of society. It is selected for bloodthirstiness. Once this jury has decided that a person is guilty and deserves killing, that decision is not reviewed. The legal rulings of the trial judge are reviewed, as are the performance of counsel and the conduct of the prosecution. But unless evidence of factual innocence shows ineffective assistance, prosecutorial misconduct, or some other Constitutional violation, it will not save a person from execution.

Whether you are a fan or a foe of the death penalty, you should favor the untested material being tested. Either it puts the final nails in Skinner’s coffin (as the DA thought it would), it shows nothing material, or it raises doubt about the identity of the killer. In any case, it’s better to know that all of the facts are known.

In another post, Bennett expressed the centrality of justice to our ideals and explained that much more is at stake when we choose to execute a condemned man:

Up through law school, we’re taught that the American criminal justice system is a wonderful thing. The organized bar—the ABA, local and state bar associations—pushes the same propaganda. It’s a lie.

The truth is that, while it may be better than any other system yet created, the U.S. criminal justice system objectively sucks. Factually-innocent people get punished every day. Pleas are coerced. Insane people get punished for doing insane things. Crappy lawyers take people’s lives in their hands. Children get treated as adults. Adults with the minds of children get treated as adults. Wealthy defendants get more justice than poor defendants.

The U.S. criminal justice system was developed by the rich and politically powerful for the benefit of the rich and politically powerful. Criminal defense lawyers stand up for the poor and the forgotten, the disenfranchised and damned.

The system is designed to be self-perpetuating. Part of its scheme is to take smart men and women of conscience and make them think they are obligated to support it. In law school we’re taught that we have a duty to the legal system. The Texas Lawyer’s Creed says, “I am entrusted by the People of Texas to preserve and improve our legal system.” But what if we can’t both preserve and improve the system?

How do you come to grips with the likelihood that the State of Texas is going to kill Hank Skinner without allowing the tests that might conclusively show Skinner’s guilt or might suggest that he was not the killer? You accept that this is indeed the big farce that it appears to be. “They” will not behave responsibly because they are determined to avoid or ignore any evidence that they might have made a mistake.

What if a system that shouldn’t be preserved refuses to be improved? Don’t we have an ethical and moral duty—a duty higher than any that can be imposed on us by the system in its own defense—to obstruct and destroy?

Welcome to the revolution.

Many of the experienced attorneys who blogged about Skinner's pending execution noted the extraordinarily long odds that either the governor or the Supreme Court would stay proceedings and permit time for testing of the potentially exculpatory DNA evidence. The wonderful thing about long odds, even the longest of long odds, is that these are non-zero; there is a chance, however remote, that the hoped-for result will occur.

Against all odds, our last day with Hank continued, as Lyle Denniston reported:

The Supreme Court on Wednesday evening delayed the execution in Texas of Henry W. Skinner, at least until the Court acts on his new case seeking to pursue a civil rights claim that he was denied a chance to have DNA evidence tested in an attempt to prove his innocence of a triple murder more than 16 years ago. The Court’s order blocked an execution that had been scheduled for 7 p.m. Washington time. The Court has not yet scheduled its consideration of his pending appeal (Skinner v. Switzer, 09-9000; his stay application was 09A743).

....

In his petition for review, Skinner contended that he has a constitutional interest under state law in seeking to use evidence that would help prove his innocence, but that he has been frustrated in trying to vindicate that interest in state proceedings. In addition, the petition argued that the conflict among lower courts on whether a DNA access claim can be pursued under civil rights law, or only under habeas law, has intensified since the Supreme Court agreed to examine that issue in the Osborne case last Term. Thus, it said, the need for Supreme Court guidance is now “more urgent.”

Lawyers on both sides have completed all of the filings in the case on that issue, so the Court is expected to schedule it for Conference within a matter of weeks. In the meantime, the postponement granted Wednesday will stay in effect until the petition is acted upon and, if granted, until it is decided. If review is denied, the postponement will expire automatically and the state could then schedule execution anew. If review is granted, a ruling would not be expected until next Term, starting next October.

Mark Bennett provided an outstanding explanation of how, procedurally, this occurred:

If four justices agree to grant certiorari, the Supreme Court will consider the merits of the appeal—whether a state’s failure to test DNA can be challenged by a convict in a civil rights lawsuit. There is a split of authority—several federal appellate circuits allow such challenges, but not the Fourth Circuit or the Fifth Circuit—which is one of the reasons that the Supreme Court will sometimes grant certiorari.

The Supreme Court could resolve the circuit split against Skinner; this would have the same effect as denial of certiorari—Skinner would have no obvious way to compel the DNA testing. The stay would be lifted, and the State would set another execution date, probably within 30 days.

If the Supreme Court resolves the circuit split in Skinner’s favor, the case returns to the U.S. District Court to be heard on the merits. From there it is appealed again (whoever wins) to the Fifth Circuit Court of Appeals, and possibly back to the U.S. Supreme Court.

If the State is ordered to provide the evidence for testing and that ruling is upheld, the DNA gets tested. If it is exculpatory, it’s not entirely clear what Skinner’s remedy is. As I previously noted, factual innocence is not itself grounds for reversal of a death sentence. It has to be coupled with a constitutional violation like ineffective assistance of counsel (but here Skinner’s trial counsel has blocked an IAC claim by saying that the decision not to seek testing of the DNA was a strategic one) or prosecutorial misconduct.

In sum, Skinner still has two ways to lose in the U.S. Supreme Court: he could be denied certiorari, or he could be denied relief on the merits. Either way, he’s out of luck. Only if cert and relief on the merits are granted does Skinner have a chance—if he is innocent—of having his name cleared in this lifetime. Even then, it’s a long shot and it’ll keep his lawyers busy for years.

Mark Draughn was troubled by Bennett's observation that even if the DNA evidence is exculpatory, "it’s not entirely clear what Skinner’s remedy is":

So the defense lawyers end up casting about for some legal hook that will get them a retrial. Maybe they accuse the defendant's previous lawyer of being legally ineffective, or maybe they accuse the prosecutor of misconduct. Quite often they try to find some ruling by the original trial judge which they can appeal. In any case, the legal basis for the appeal is essentially a pretext to get the factual issue back before the court.

This is an ridiculous situation. Our court system apparently has no simple, honest method of dealing with the possibility that a criminal court followed all the correct procedures and -- perhaps due to facts unavailable at the time -- still reached an erroneous conclusion.

Brian Tannebaum criticized those who spun the Supreme Court stay as a victory for death penalty opponents:

Lost, entirely lost in this debate over Hank Skinner's execution, is the question of actual innocence. It is lost upon those that ridiculously argue Skinner should be executed now because the victims deserve justice.

The victims do deserve justice. But justice is not going to sleep and knowing the man you think committed the murders has been put to death. Justice is knowing the man put to death, is the murderer.

....

If you support the death penalty, and I do not, then you should insist that those put to death, are guilty.

Hank Skinner woke up today because the U.S. Supreme Court has some questions.

Questions that need to be asked. No matter on which side of this debate you reside.

Scott Henson reserved his criticism for Governor Rick Perry:

Governor Perry failed two important tests yesterday by failing to commute Skinner's sentence and forcing the Supreme Court to manage his business:

First, after he signed Timothy Cole's posthumous pardon last week, the open question remained, "Has the Governor learned anything from this experience about making sure innocence claims are fully vetted?" In the Skinner case, we got a quick answer: "No way." The attitudes that allowed innocent people to be convicted and potentially executed on his watch are still firmly entrenched.

Second, for a Governor so full of himself when he champions "states rights" and the Tenth Amendment, in this case he ignored the adage that with rights come responsibilities. Texas should be handling its own business on the Hank Skinner case, SCOTUS shouldn't have to intervene over and over because neither the Governor nor the courts have the courage to do the right thing. Governor Perry is calling for expanded state power but simultaneously demonstrating that he can't be trusted to use it wisely - that even matters of life and death will be measured according to their political calculus as opposed to the interests of justice.

Scott Greenfield and Brian Tannebaum noted the widespread campaign for justice in the Skinner case which played-out on Twitter and other social media, contrasting it with the self-promotion which prevailed elsewhere online. Greenfield wrote:

We're not so delusional as to believe that it was our twitter campaign that moved the Supremes to grant an 11th hour stay, or had Texas Governor Rick Perry cowering in the corner of his governor house hiding from the digital townspeople with their pitchforks and torches. But it showed that they cared enough about the right thing to act. If it played any role, even to merely encourage those engaged in the real fight to stop the possible execution of an innocent man, it served a purpose. If it played no role whatsoever, at least we didn't turn our backs.

It was a day of gross juxtaposition, however. While some blawged, some twitted, some did both, in the name of keeping Hank Skinner alive long enough to make sure he was guilty before killing him, other lawyers were occupied with doing the things most important to them. They had no time to notice the impending execution of Hank Skinner. They were busy with more important things.

There was marketing to do.

....

It made me proud that I could be a part of the group of lawyers who raised a hand, maybe only a finger, to be part of the solution. It may have meant absolutely nothing to the grant of a stay or the transitory extension of Hank Skinner's life, but it's better to try than not. In contrast, the swell of lawyers who were too busy going about their daily lives online, eying themselves in the mirror to see if their hotpants made their butt look fat, may have found a new client while we were trying to save a life.

These are the choices that lawyers have to make in this digital age. Social media can be put to good use, but it's up to each of us to decide what a good use is, and whether trivial, self-serving interests are sufficient to make you feel that you're day wasn't wasted.

Tannebaum added:

It is a ridiculous notion to think that the Justices of the United States Supreme Court were surfing twitter yesterday and saw the outpouring of interest. It is less ridiculous to think that their young clerks and staff may have seen the posts.

But let's accept the argument that not a single person at the Supreme Court saw a single message about Hank Skinner's pending execution. Let's accept that the stay was granted without any knowledge of the online campaign.

The shame of it is that the social media marketers, some who are lawyers, largely stayed out of the postings. It wasn't part of their marketing campaign, it wasn't part of their "brand," and it wasn't self-promotion. It is these low-life marketers who only see social media as advertising, self-promotion, and a method to talk about "me."

....

That a message was spread of a possible injustice about to occur is so beyond the mindset of these social media types that all they can do is try to dissuade anyone who may think that social media can be used for a good, relevant purpose.

Yesterday the lawyers came together to pass along information to their colleagues and friends about a real legal issue that mattered.

The social media lawyer marketers, watching their world become one of relevance and not gamesmanship, took a pass.

Though I'm a moderate supporter of capital punishment, this entire episode has caused me to reconsider many of the assumptions I held. Notwithstanding, I can't say that my thinking has gone through as much of a change as Johnny Gardner's. He thought things through in an excellent (and tongue-in-cheek) post. I won't do him the injustice of excerpting it; read the whole thing and later on thank me for making you do it.

The Anti-Counterfeiting Trade Agreement (ACTA) has been in secret negotiations amongst representatives of several nations for some time now. Rumors of its outrageous terms have circulated for nearly as long, but were denied by officials and unverifiable owing to the veil of secrecy drawn by participants over their negotiations. When bureaucrats are fearful that their discussions, if fully understood, would incite such opposition as to jeopardize their careers, we're right to be concerned.

The secrecy was broken this week when a draft of the ACTA was leaked and quickly analyzed by knowledgeable folk throughout the blogosphere. Their verdict? It's as bad as feared and the Obama Administration has much to answer for, both for the contents of the document and their participation in the secret bargain which produced it.

Mike Masnick rounded-up a few of these observations — border searches of iPods and other devices which contain creative works, "a massive increase in secondary liability" without provisions for fair use, injunctive relief against "imminent infringement" of intellectual property rights — and suspected that these were just the tip of the iceberg. It is noteworthy that this far-ranging document is being positioned not as a treaty (subject to Congressional approval) but as an executive agreement to which the Administration can bind us on the President's soleauthority.

Jack Goldsmith and Lawrence Lessig outlined the constitutional implications of adopting ACTA as an executive agreement:

The goal of the trade pact is to tighten enforcement of global intellectual property rules. The leaked draft, though incomplete in many respects, makes clear that negotiators are considering ideas and principles not reflected in U.S. law.

....

These proposals might or might not make sense. But they ought at least be subject to public deliberation. Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a "congressional-executive" agreement. But the Obama administration has suggested it will adopt the pact as a "sole executive agreement" that requires only the president's approval.

....

Joining ACTA by sole executive agreement would far exceed... precedents. The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.

The administration has suggested that a sole executive agreement in this instance would not trample Congress's prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected.

....

These mostly secret negotiations have already violated the Obama administration's pledge for greater transparency. Embracing this deal by sole executive agreement would repudiate its pledge to moderate assertions of executive power. Congress should resist this attempt to evade the checks established by our Framers.

David Post was similarly concerned about the ACTA negotiators' secrecy and subterfuge, suggesting that this is the "copyright tail wagging the internet dog":

It’s hard to know... which is more appalling: the fact that the Obama Administration has conducted the ACTA negotiations in secret, or that it has indicated that it plans to adopt the final Agreement as an “Executive Order,” one that does not require submission to or ratification by the Senate (or any Congressional action whatsoever) to become effective.

I cannot imagine what justifications the Administration might proffer for this affront to our constitutional law-making schemes.... Those of us who follow copyright law have been here before, and we know what’s coming: the President signs the Agreement, and then changes to US Copyright law are introduced into the Congress and supporters will say something to the effect that the changes are required in order to bring our law into harmony with international norms and with our international obligations. It happened during the run-up to the 1998 Digital Millennium Copyright Act, and it will, I promise you, happen again here. It amounts, in effect, to presidential law-making, and if it isn’t (as Lessig and Goldsmith argue) unconstitutional, it damn well should be.

None of this would be of too much concern were the Agreement — as far as we can tell, given the veil of secrecy the Administration has thrown around it — full of substantively bad ideas and lousy law.

Margot Kaminski listed two dozen instances of those bad ideas and lousy laws; she wrote:

[ACTA] amps up IP protection and criminal sanctions, without respecting existing international institutional process and involving the interests of developing countries.

Unsurprisingly, the US is an IP maximalist here, pushing for the strongest provisions. Singapore is a minimalist. Australia fluctuates depending on the provision. Japan appears to be on board with the US except for DMCA provisions, with which it heartily disagrees.

What's at stake here? Institutional process and legitimacy (why is this taking place outside of the World Trade Organization (WTO) and WIPO?), and a rush to standardization on approaches to the Internet around the US standard, which arguably isn't the ideal.

Privacy interests (implicated by data sharing with both other countries and with rights' holders) and liberty interests (why rush to the unreasonable US standard of criminalization?) are also very much at stake.

It's enough to make even the most loyal American, in the immortal words of Anthony Anderson's Burger Shack employee in Harold and Kumar Go to White Castle, "want to burn this motherfucker down." If you feel so inclined and wish to discuss your plans at the Popehat blog, Ken asks that you follow a few guidelines and work at least three common themes — comparing one's opposition to Hitler, for example — into your rant.

Across the water, Carl Gardner is adamant that Britain does not need a written constitution; he explains a viewpoint which may be a bit difficult for Americans to understand — constitutional change without what we would recognize as a constitution:

I love constitutional change. I think one of the best things about politics in Britain is that there’s continual debate about our constitutional arrangements and the way we protect rights, and as a result, regular and ongoing reform. At the moment we’re discussing changing the House of Lords further, and radically reforming libel law. Not long ago we gave more powers to the National Assembly for Wales, we continue to debate the wisdom of the domestic human rights law system we adopted twelve years ago (which we retain the option of abandoning) and the powers of local government. Just five examples where reform has happened recently, or is expected soon. One of my main complaints against a written constitution is that overnight, its effect would be to freeze our constitution, and make constitutional reform a much less important part of our national discourse as we found we were simply straitjacketed within the entrenched written arrangements we now had and were unable so easily to talk about and make these sort of piecemeal changes. I find it astonishing that this simple point isn’t more often grasped.

I respect Gardner's intellect tremendously and I suspect that once made up, his mind isn't easily changed. However, if he should reconsider, I hope that he and his fellow Britons will take our Constitution as their own. We're no longer using it and I'd like it to go to a good home.

Rick Horowitz is one of my favorite legal bloggers and I'm glad anytime his writing get the attention it deserves. His recent post "And the Money Just Squirts Away" was typical of his work — well-observed, well-written, confrontational, and compelling. Why this post in particular garnered so much attention, however, is something of a mystery to him, as he mentioned on Twitter. Hopefully, this week's Round Tuit will send dozens more to his site, thereby deepening the mystery.

Many bloggers have had the opposite problem — they write brilliant posts which should find an appreciative audience but don't. The Popehat bloggers have experienced this themselves and aim to do something about it. As Ken describes, they're starting a new blogging carnival to give a second chance to those posts who were overlooked the first time around:

[I]nspired by the consistently excellent Blawg Review, I’ve decided to do something about it. Most blog reviews are dedicated to posts that other people thought were great. The Dance of the Wallflowers will be a blog carnival devoted to the blog posts that the bloggers themselves viewed as their beloved but ignored children.

....

What kind of blogs would I like to see participate? Well, I suspect that our core constituency will be the blogs you see in the Blawg Review and that we frequently link to — blogs that feature legal and political issues, if not blogs solely devoted to them. But I see this as an opportunity to learn about blogs I haven’t followed before, too.

JoAnna Forshee offered an overview of the various short presentations at the "IgniteLaw" event at the ABA's recent technology conference. Several seem worthwhile and, at just a half-dozen minutes each, won't require much of your time to view. Scott Greenfield was unimpressed by the discussions for the most part, but was particularly bothered by Ari Kaplan's legal marketing presentation and by the ABA's seal of approval on his message:

There are... a significant group of lawyers who are susceptible to this sort of proselytizing. The new lawyer. The lawyer without business. The crappy lawyer. The greedy lawyer. The desperate lawyer. And as one lawyer jumps on the bandwagon to "success", others fear that they will be left behind, beaten to the punch by the lawyer who seizes the opportunity to use every means available to market, and jumps on before he's left behind.

Why would they take this seriously? This is the ABA. The American Bar Association, the staunch defender of America legal mores and tradition. If the ABA promotes it, it must support it. And if the ABA supports it, it must be fine. This is the way of the future or the ABA would want no part of it.

....

It's a fraud. Forget Ari Kaplan's frenetic, breathless extortion to market like a four year old plays with a Wii. It's a lie. One of the most offensive parts was the notion that legal ethics, being slow and plodding, resistant to change and unable adapt to ever changing technology, is to be ignored. The problem isn't with every new-found method of marketing being unethical, but rather with ethical approval lagging behind technology. Just do it, and eventually it will be fine.

This is being promoted across the internet by a group of people who do not practice law, but who earn a living by persuading people who do that it's okay to pay for their services, buy into their philosophy, and validate their business model. This isn't about your business model as lawyers, but their business model as snake oil salesmen.

That the ABA would tolerate this crap is a disgrace. That the ABA would promote this cabal determined to convince lawyers that ethics are no longer a part of our obligation is inexcusable. That they send this message to your computer is a conspiracy to commit wire fraud, because this is nothing but a lie. It is not acceptable to engage in unethical behavior, even if it can make you money, even if it involves cool technology, even if a bunch of former lawyers turned pitchmen say so.

What you won't see at IgniteLaw is anyone spending their six minutes telling lawyers to work hard, put their client's interests ahead of their own and conduct themselves with integrity and dignity, even if it means that they lose a few bucks in the process.

Brian Tannebaum took issue with IgniteLaw host Matthew Homann suggestion that "Your peers fear change, only because they fear you'll change better than they will." He wrote:

I consider myself a traditional lawyer. I built my practice by word of mouth referrals. I have an office. I wear a suit. I don't market myself to death or sit in Starbucks all day telling other lawyers how to use a computer. And yes, I think the way lawyers are being evangelized into the marketing world, is pathetic.

But I don't fear change.

What I fear, is new lawyers who listen to non-practicing lawyers go from conference, week in and week out to tell them all the wrong ways to get business, and that the way they are doing everything, is wrong. I fear many of the people who spoke here. I fear that I have witnessed a live version of everything I criticize.

That's what I fear.

I fear that we are creating a generation of marketers, and not advocates (unless they are advocates for themselves, and marketing, and their twitter account.)

Venkat Balasubramani posted a sensible and even-handed take on some of these concerns:

The message a young lawyer may take away from this (I'm assuming young lawyers attend these events, but maybe I'm wrong?) is that if you learn the tech and keep abreast of these technological developments (if you're an "early adopter") you are good to go. We're painting a picture that you can jump past the nuts and bolts of lawyering and focus on things like technology, social media etc.... If you don't learn the fundamentals of lawyering - assessing your client's issue, figuring out what they want to accomplish, and above all, figuring out how to achieve the result within the legal system - you may as well go home. All of Susskind's pontifications aside, the core of lawyering (at least in an adversarial setting) will never evolve away from understanding and digesting the law, having solid writing skills, and engaging in advocacy in front of a factfinder or tribunal. Maybe I'm wrong, maybe it will. But the day it does, I'll happily pack my bags and finally open up that restaurant that I've mused about over the years.

I realize the focus of the show is on technology in the legal profession so you can expect the focus to be on technology, but I'm still bothered by the lack of mention of the fundamentals. I think it's a disservice to young lawyers who may be attending or following along. Given that the ABA is putting on the event I would think this would be a concern to them? It's a lot tougher to learn the fundamentals than it is to learn the tech/social media stuff. The ABA should emphasize that in the early years, we should be spending much more time and energy learning the fundamentals.

Finally this week, if you're like me and the concept of "too much Charon and Insite Law Magazine" is as inconceivable as "Tea Party Nominee Sean Penn", the new "Charon Reports" and "Insite Newsletter" are very welcome. Check out the concept documents and get signed up to the mailing list so that you don't miss an issue.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., IlPostiglione.com, ICanHazCheezburger.com, and Paris Odds n Ends Thrift Store.

Question Authority

Lance Godard, who produces the 22 Tweets Twitter-based interview series, hosts Blawg Review #257 this week at his Are You Writing This Down? blog.

Until now, finding one's post included in the carnival of legal blogging marks the end of the blogging process; nothing more is required of you, apart from basking in the well-deserved glow of your peers' acclaim. This week, however, Godard isn't letting the twenty-two bloggers linked in his Blawg Review get away so easily. After all, these are twenty-two of the best legal bloggers around... why pass up an opportunity to solicit their views on the issues of the day and the broader concerns facing our profession?

It's an interesting twist on the Blawg Review concept. Highlights of this interactive Blawg Review are the public relations boost enjoyed by Google following its dustup with China, the difference (if any) between justice and fairness, and the fragility of our right to counsel.

Cathy Gellis will host next week's Blawg Review #258 at her Statements of Interest blog.

TGIS: Thank God It's Schadenfreude! (263)

This week's joy in the misfortune of others comes courtesy of CNN (from Wednesday, March 24; link good at time of posting):

Authorities said a bank employee received a phone call from a person demanding that $100,000 in large bills be gathered, or there would be a "blood bath" if the orders were not carried out.

....

According to [Det. Lt. Michael] Gagner, the accomplice handed a teller a note demanding money at the exact same time the bank employee was talking on the phone to the police.

"The guy is literally giving us a blow-by-blow, saying the robbery is going down," Gagner said.

After passing the note and collecting about $900, the suspect politely asked to be let out of the bank, Gagner said. By this time, patrol cars were on the scene.

The suspect left the bank and encountered a police officer who ordered him to stop, Gagner said. The suspect then tried to run to the car where the other suspect was waiting. Both were arrested without incident.

Police identified one suspect as Albert Bailey, 27, of Bridgeport, Connecticut. The other suspect is a juvenile.

The two are charged with first degree robbery and threatening in the first degree. Gagner said Bailey is on probation for another bank hold-up several years ago.

....

"We were all kind of cracking up with the call ahead aspect of it," Gagner said, "definitely unusual technique."

[Previous TGIS]

A Round Tuit (24)

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.

Eric Goldman undoubtedly summed-up the Viacom-YouTube smackdown best this week:

Who doesn’t enjoy a good old-fashioned mud-slingin' showdown? That’s exactly what we’ve got on our hands in the dueling summary judgment motions from Viacom and YouTube in the long-running copyright infringement case (see my initial post from March 2007). While we might have some voyeuristic fun watching the sparks, the latest salvos prove that the parties are both losers for not finding a way to settle this case. Only the lawyers win when two heavyweight contenders get locked into a cosmic death struggle. Everyone else would be better off if Viacom and YouTube instead had poured their millions of dollars of legal fees towards developing innovative and profitable ways to serve consumers’ interests. It’s ridiculous that they can’t find a way to do this.

The stakes are certainly high enough. Is YouTube, formerly a brash startup and now a jewel in Google's crown, a "Video Grokster" built on the theft of others' copyrighted works or a responsible player which does more than the (often ambiguous) law requires to protect those works? The dueling motions for summary judgment filed by Viacom and Google paint, as Goldman puts it, "a 'Tale of Two YouTubes'", with Viacom's brief focusing "on YouTube of Yore, circa 2005-06, while YouTube’s brief largely focuses on YouTube of Now. In that sense, the briefs largely talked past each other."

Mike Masnick covered the exchange often and insightfully. On balance, he concluded that Google's brief described the stronger position of the two; he highlighted a number of weaknesses in Viacom's arguments:

[N]owhere does Viacom explain how YouTube employees could distinguish which content was actually infringing and which was put up for promotional purposes or what was fair use. This is a major weakness in Viacom's motion.

Viacom's secondary arguments get weaker as you go down the list. It argues that because YouTube uses advertising to make money, that shows the company directly profits from infringement. That argument makes no sense -- because it would effectively wipe out any safe harbors for any commercial operation, which clearly was not the intent of Congress.

....

Viacom argues that Google could have blocked uploads with fingerprinting technology it had licensed, but fails to note the massive weaknesses in those fingerprinting technologies (which we still see thanks to Google's bad automated takedowns). It tries to bolster this argument by saying that Google refused to use the fingerprinting on Viacom content unless Viacom agreed to license its content to YouTube.... The way the fingerprinting works is that Google would need copies of the content to be able to recognize them -- and the only way to do that is if Viacom licensed works to them.

....

The crux of Viacom's argument rests on trying to break the DMCA safe harbors because Google and YouTube execs knew that there was a lot of infringing content on the site. But Viacom's argument breaks down entirely when you realize it doesn't explain how Google could ever make the actual determination of which videos are infringing. Viacom tries to get around this with some legal tap dancing, basically saying that it doesn't matter and Google just should have known what was infringing and what was not. But that makes no sense. Viacom is basically saying Google should have had a magic wand to figure out what's infringing and make it disappear. That's impossible. No law could possibly require Google to do the impossible. The fact that some of the videos Viacom sued over were uploaded by Viacom itself proves this point clearly.

He found Google's discussion of Viacom's own questionable marketing activities compelling:

Viacom tries to brush off the fact that it uploaded many videos itself, by saying (in a footnote) that most of those videos were clearly designated as being from Viacom. Google counters by pointing out that (a) this is not true and (b) Viacom repeatedly disguised who uploaded those videos on purpose -- even quoting Paramount's SVP of marketing saying that the clips "should definitely not be associated with the studio -- should appear as if a fan created and posted it." Among the users who uploaded Viacom clips on behalf of Viacom itself?

MMysticalGirl8, Demansr, tesderiw, GossipGirl40, Snackboard and Keithhn

On top of that, they registered with non Viacom email addresses, and even went to the local Kinkos to avoid uploading from Viacom directly. How Google was supposed to distinguish those clips from those uploaded by random users is not explained anywhere by Viacom, which is a hugely damning point against Viacom's case.

Further damning to Viacom's case -- the fact that Viacom regularly had to backdown on its takedown notices after it was realized that the takedowns were incorrect. This is a point that we've made before and is driven home repeatedly in Google's filing. If Viacom itself can't get it right -- when it holds the copyrights and some of the videos were uploaded by itself -- how the hell is Google supposed to know which videos are legit and which are not?

Masnick suggested that Viacom's underhanded "stealth" marketing might just put the company in the Federal Trade Commission's crosshairs: "While certainly helping Google make the point that it's ridiculous to expect it to know which videos were legit and which were infringing, these also seem to certainly violate the spirit of the FTC's recent guidelines on questionable 'stealth' marketing practices."

Others saw the balance tilted more in Viacom's favor. Eriq Gardner was impressed by the damaging e-mails amongst YouTube's founders and the picture these painted (whether in context or out being a matter of some dispute) of a group of entrepreneurs willing to ignore copyright law to boost traffic to their site and more concerned with appearing to enforce the rules than actually enforcing them:

YouTube has proclaimed a "safe harbor" from liability under USC 512(c) thanks to efforts to respond dutifully to takedown requests. But Viacom goes out of its way to present the case that YouTube was founded upon and continues to exist as the result of intentional copyright abuse.

....

The brief positions Google/YouTube as "not just innocent and unwitting accomplices to infringement perpetrated by YouTube users" but rather liable for infringement they intentionally made possible in the interest of growing the website."

Viacom argues that the Digital Millennium Copyright Act provides no safe harbor due to "actual knowledge" of infringing activity and cites Google/YouTube's reluctance to use abilities to "control such activity." Finally, Viacom argues that YouTube is more than a web-hosting service but rather predicated on the public performance of videos, much like a television station.

These are all pretty strong arguments. Viacom clearly wants to hang its adversary by the neck of their own mouths. We understand how the lengthy discovery proved fruitful and why Google wished to keep much of this under seal.

Scott Vine also discussed the damaging discussions amongst YouTube's founders, Chad Hurley, Steve Chen, and Jawed Karim, as well as the gaps in the recollections of some key players on the YouTube/Google side:

Even more damning a memorandum personally distributed to YouTube’s entire board of directors by Karim just 6 months before the sale to Google stated: ” As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 91 1, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube’s popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptivelv removing content that is blatantly illegal and likely to attract criticism. ”

Viacom then turns to Google – who it commends for running a totally legal rival video hosting service, Google Video, before its purchase of YouTube for $1.8 billion in October 2006. It points to internal Google documents where Google identified YouTube as “a rogue enabler of content theft”; “business model is completely sustained by pirated content”, and “it’s a video Grokster”.

It seems Hurley was not the only person to have difficulty finding and remembering what happened in the early days. When asked to produce any relevant documents including emails that dealt with the acquisition of YouTube, Google CEO Eric Scmidt managed to find just 19. He explained this by stating it had “been my practice for 30 years to not retain emails unless asked specifically” – this from a company that launched Gmail in 2004 so people would never have to delete an email again. Viacom also point to the testimony of Larry Page who apparently could not even remember whether he was in favour of Google buying YouTube or not.

While their briefs were directed toward the legal decision makers, Viacom and Google did not neglect to try their cases in the court of public opinion as well. Viacom issued a statement which characterized YouTube as the most wretched hive of scum and villainy this side of Mos Eisley:

Google bought YouTube because it was a haven of infringement. Google knew that YouTube’s popularity depended on infringing materials with several senior Google executives warning that YouTube was a “rogue enabler of content theft.” Instead of complying with the law, Google willfully and knowingly chose to continue YouTube’s illegal practices.

Google and YouTube had the technology to stop infringement at any time but deliberately chose not to use it. They would only offer to protect Viacom’s content if Viacom agreed to license those works, effectively holding copyright protection as ransom for a license.

The law is clear that Google and YouTube are liable for their infringement. The Supreme Court unanimously held in Grokster that a service that intends infringement is liable for that infringement. No case has ever suggested that the DMCA immunizes rampant intentional infringement of the sort Google and YouTube have engaged in.

These facts are undisputed. The statements by Google regarding Viacom activities are merely red herrings and have no relevance on the legal facts of this case.

To summarize, MMysticalGirl8, GossipGirl40, Snackboard, and the other red herrings have one final thing they want you to consider: "Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense! Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense!" By the way, wouldn't "Snackboard and the Red Herrings" be a great band name? I digress. In reply, Zahavah Levine, YouTube Chief Counsel, touched on those red herrings and put things into perspective:

With some minor exceptions, all videos are automatically copyrighted from the moment they are created, regardless of who creates them. This means all videos on YouTube are copyrighted -- from Charlie Bit My Finger, to the video of your cat playing the piano and the video you took at your cousin’s wedding. The issue in this lawsuit is not whether a video is copyrighted, but whether it's authorized to be on the site. The DMCA (and common sense) recognizes that content owners, not service providers like YouTube, are in the best position to know whether a specific video is authorized to be on an Internet hosting service.

Because content owners large and small use YouTube in so many different ways, determining a particular copyright holder’s preference or a particular uploader’s authority over a given video on YouTube is difficult at best. And in this case, it was made even harder by Viacom’s own practices.

Amidst the fingerpointing between Viacom and Google, Fred von Lohmann focused on the "YouTube of Yore" versus "YouTube of Now" characterizations noted by Eric Goldman:

One surprise from Viacom is a concession that it basically has no beef with YouTube as it has been run since May 2008: "[W]e do not ask the Court to address potential liability for post-May 2008 infringement in this motion and, if Viacom's summary judgment motion is granted, do not intend to do so at trial." What happened in May 2008? That would be when YouTube launched its Content ID system, enabling copyright owners to "claim" their content and decide whether it will be blocked or monetized on YouTube.

In other words, this case isn't really about YouTube (at least YouTube circa 2010). It's about Viacom's effort to get the court to re-write the DMCA safe harbors to require everyone else to implement (and pay for) copyright filtering. If Viacom succeeds, it would radically change the innovation environment for all Internet companies that depend on the DMCA safe harbors.

....

[W]hat Viacom is asking for here is a radical re-write of the DMCA that, if accepted, would put all kinds of online service providers at risk of huge statutory damages for copyright infringement. Is eBay used to commit copyright infringement every day by some users? Sure. Do people use Microsoft's Bing to find infringing materials? Check. Do online lockering services get used to store infringing materials? Do users send infringing email attachments? How about the "send file" features of every instant messaging system? The only reason these (and many other) online services exist is because the DMCA safe harbors give them rules to follow that are much clearer than the murky standards for "secondary liability." If Viacom is right, then there are no clear rules to follow, except "beg permission from every copyright owner first." And that's a rule that would hobble innovation and competition online.

Mike Masnick suggested that Viacom's endorsement of the "YouTube of Now" (after implementing filtering technology) indicates their "real intent":

Viacom is claiming that the DMCA requires filters. Yet, the DMCA is explicit that this is not true, and always has been. In fact, if I remember correctly, Paramount Pictures top lawyer (Paramount is a Viacom subsidiary) said in a discussion we wrote about last year, that he felt the current DMCA was deficient, in that it had a notice-and-takedown provision, rather than requiring proactive monitoring.

....

No one is saying that copyright infringement should be allowed on YouTube. The only question is whether or not it should be YouTube's responsibility to proactively monitor that content and stop it from being uploaded. The law is pretty clear that this is not required -- and, as Google's filing makes clear, even if it were required, given Viacom's own actions, this would be impossible.

This is certainly a case worth watching closely; whether you choose to watch on an authorized channel or on a haven of infringement is, of course, entirely up to you.

I feel sorry for our nation's youth. With all this "sexting" going on, these impressionable and naïve children are harming themselves and one another, perhaps irreparably in some instances.

You know who I feel sorry for more than our nation's youth? Myself. I was born after the Summer of Love, was too young for the sexual revolution, came of age in an era of protected sex and fear of AIDS, and am now too old and fat for sexting. Timing is everything.

Well, I suppose that timing is but one thing; location is another. Here's a pro tip: if you're underage, don't get caught sexting in Tunkhannock, Pennsylvania. But before I discuss sexting in Pennsylvania, did you know that you can't spell "Pennsylvania" without p, e, n, i, and s? I won't even tell you what "Tunkahannock" means in the local Native American dialect. Disgusting.

Anyhow, it seems that in Tunkahannock a kind-hearted prosecutor wanted to give a few local misguided youth a second chance after they were caught sexting or, as it's known in Tunkahannock, "participation in the distribution of child pornography". Contacting parents with threats to prosecute their children for sex crimes unless they set their Constitutional rights aside to attend moralizing lectures seemed like a great idea straight out of Angels With Dirty Faces, but as Ashby Jones reported, the Third Circuit wasn't buying it.

Eugene Volokh explained the decision in Miller v. Mitchell: "[T]he prosecutor (1) threatened to prosecute plaintiff’s daughter (2) even though it turns out he didn’t have probable cause for a prosecution (3) unless the daughter went through the “education program.” All three elements, it turns out, seem to be crucial to the decision." The court found that the "education" program requirement hit the trifecta — it violated parental rights, violated children's First Amendment right against compelled speech, and threatened government retaliation for the exercise of Constitutional rights.

Notwithstanding this clear condemnation, the court emphasized that the real problem was that the prosecution lacked probable cause — a number of the allegedly pornographic photos were hardly even risqué and no effort was made to connect those pictured to the distribution of the photos. This leaves open the question whether a prosecutor whose threats are less obvious or whose potential case is better-founded could get away with the conduct struck down in Miller. In a follow-on post, Volokh suggested that this decision, in conjunction with existing retaliatory prosecution law, was an important limit on other prosecutions:

What’s noteworthy about this Third Circuit decision is that it says there is something wrong with threatening a defendant — especially a juvenile defendant — with prosecution if she refuses to take a class.... And while [the decision] says that retaliatory prosecution can’t form the basis for a damages action unless there’s probable cause to prosecute, well-settled retaliatory prosecution law holds that retaliatory prosecution for constitutionally protected speech (and, presumably, the defendant’s parents exercise of their parental rights) is a defense to the criminal charge. So while the Circuit says that “if probable cause exists, the injunction must be lifted,” and the prosecution will be allowed, the prosecution will be futile, again even if there’s probable cause to prosecute.

Jeff Gamso was less optimistic that this case be a restraint on other prosecutions; he suggested that in this instance, the prosecutor "left the smoking gun" and others will be more circumspect:

It's always nice, and far too rare, to see a prosecutor slapped around for being a heavy-handed, moralistic, jackass.

....

Most prosecutors don't make such overt, public threats, on the record.

In fact, people are arrested and prosecuted every day for exercising their constitutional rights. Sometimes the charges are eventually dismissed. Sometimes the defendants are found not guilty. Every time there is damage - arrest, jail time, public opprobrium, loss of income, maybe of family, the not-inconsiderable cost of hiring counsel, and that's just for a start. But there was no smoking gun, no prosecutor declaration that "I'm going after this guy for what he says or what he thinks or how he looks or what he does that the law and the constitution protect."

It's not hard to find those cases.... Just open the newspaper.

Good for the Third Circuit to prevent heartbreak and slap [Prosecutor George] Skumanick around. Too bad it won't happen more.

Emily Bazelon agreed that this was a case study in how not to prosecute sexting, but was was otherwise essentially sui generis:

In the end, George Skumanick is such an outlier that his loss on appeal won't mean all that much in terms of setting precedent. Other prosecutors can find ways to be hard-charging about sexting. The problem for the court here was the retaliation for not attending the education program, after all, not the idea of the prosecution in itself. But as organizations like the National District Attorneys Association back away from harsh reprisals against teens who sext in most contexts, the 3rd Circuit's ruling has a like-minded ring of sanity. A girl who poses in her bra while making a peace sign, or whose photo is snapped while she's coming out of the shower in a towel, shouldn't have to sit in class for months while a prosecutor's office schools her on female identity. Or anything else.

In other criminalization-of-youthful-hijinks news, Marc Randazza discussed an unusual (we hope) announcement at a New Jersey Wal-Mart store:

A 16 year old boy grabbed a public address system microphone at a New Jersey Wal-Mart store and said “Attention, Wal-Mart shoppers: Will all the black people please leave the store. Thank you.” He and his friends then ran out of the store, and were off to more of whatever it is 16 year old dipshits do.

For some reason, this incident sparked an investigation that finally led to this dangerous scofflaw being apprehended.

....

Is this what we have come to? A 16 year old kid engages in a stupid prank. Everyone knew it was a prank. “Witnesses said store officials took about 5 minutes before announcing that the statement was a prank and apologizing.”

Instead of that being the end of it, there was a police investigation, and a police press conference, and this 16 year old moron has to face the possibility of a year in jail?

In my opinion, the only person in this equation who belongs in jail is the dipshit cop who decided that this incident required not only a police investigation, but an actual arrest.

Perhaps he'll get some time knocked-off for concluding his announcement with "Thank You"? Scott Greenfield was similarly dismayed that an obvious prank — however offensive — has led to a criminal prosecution:

Harassment statutes are deliberately vague and meaningless, as they are meant as a catch-all for conduct that people think should happen and have to be written in such a way as to cover a broad array of conduct. As bad conduct goes, this comes relatively close to something that, at least arguably, is covered.

But do we really want to put kids into jail, or even saddle them with a conviction, for pulling stupid pranks where no harm occurs? This remains a great teaching moment, both for the kid as well as the rest of us. Are we afraid he's going to become a serial prankster, roaming from Wal-Mart to Wal-Mart, trying to sneak onto the announcement system?

If he does it again, throw the book at him. This time, let's turn one incredibly stupid act into something positive. And that doesn't include the standard prosecutor announcement that this kid's going down. Every stupid and offensive act does not require a prosecution.

As Ken Lammers noted, several legal bloggers recently discussed bad criminal defense attorneys and the clients who love them; he produced a handy field guide to recognizing the various types, from the true believers and the overly-empathetic to the raging asshole and the BigLaw partner out of his element in criminal court. The commonality amongst them is that, good intentions or bad, all are failing when their clients need them the most.

The clients of public defenders are failed as often, and most likely more often; there's certainly as much variation in the competency and performance of public defenders as there is in the private criminal bar and the scarcity of resources and excessive caseloads diminish the effectiveness of even the most competent public defenders. Jeff Gamso read recently of a couple of public defense failures which can't be chalked-up to excessive caseloads or cuts in budget; he noted that a defendant urged to to plead guilty to a felony, serve several months in jail, and spend several years on probation was failed by her counsel — her offense was a misdemeanor which wouldn't ordinarily carry a serious penalty, information her attorney ignored. Acknowledging that such clear instances of incompetence exist in public defense, Gamso wrote that resources are root of the problem:

Indigent defense is problematic pretty much everywhere - even when it's superb - because at some point the system, and in particular its funding, is in the hands of the government. And indigent criminal defendants don't have a great lobby and don't make big campaign contributions.

....

Public defense at its best provides superb representation. There are places and settings (and lots of individual public defenders and appointed counsel) who provide that level of representation on a regular basis. But the system doesn't. Not broadly enough, anyway.

....

That just makes me more sure that these cases are important. If standing up for our clients is what we do (the rest is mechanics and details), if we understand that the clients, rich or poor, are on one side and the weight of the government is on the other, then the Sixth Amendment right to counsel needs constant and vigorous defense precisely because the clients have no lobby and don't make big contributions.

It's often said that public defense comprises good lawyers (with a few bad apples here and there) attempting with little-to-moderate success to manage excessive caseloads and to defend their clients without adequate resources. Mike Cernovich suggested that a double standard exists — individual police misconduct is highlighted and used to attack "the system", but the incompetence of many within the public defender system is papered-over in favor of ascribing all weakness in that system to lack of resources specifically and racial or economic prejudice more broadly. He discussed "the dirty truth about public defenders" and the similarities between defenses of the public defense system and the "blue wall of silence":

Criminal defense lawyers often decry the blue wall of silence. Why don't police officers speak out about corruption? Yet criminal defense lawyers defend the indefensible public defense system.

There isn't a criminal defense lawyer reading this post who would, if charged with a crime, choose to be thrust into the public defense system rather than hire counsel. Sure, you know a guy in the office you'd entrust with your case if he had the time to spend on your case.

You'd go into the public defender's office if - unlike poor people - you could choose your lawyer, and demand that he not treat you like another piece of meat on the assembly line. Which means, in reality, you do not trust the public defender system.

....

Aren't public defenders who allow incompetent colleagues to take on clients the Burkean men who allow evil to flourish by doing nothing? If we were talking about police rather than public defenders, you know how you'd answer, don't you?

"They are overworked, and their caseloads are too high." Why don't you demand that public defenders go on strike? Bring the system to a halt. That's what you demand of police: Speak out, even if it means risking your job. Well, why don't you demand that public defenders risk their jobs to improve the system?

The general defense of public defender is to ignore the individuals, while attacking the system. Yet when criticizing police misconduct, criminal defense lawyers attack both the system and the individuals who are part of the system. After all, change is possible only when those on the front line take bold action.

Gideon, a public defender himself, couldn't disagree more with Cernovich's take:

The fault in the system lies with the players, he essentially argues. That the good lawyers are few and far between. That there is no internal management, no checks, no corrections for poor performance and that we support one another blindly.

On one hand, I think it overestimates the authority that one colleague has over another. On the other, I think the points he makes are somewhat valid. While I would not hesitate for a second to place my liberty in the hands of those I work in close proximity with, there are several public defenders that I wouldn’t let within 5 miles of own criminal case. But this isn’t the issue in the fight for adequate funding or the fight against ineffective lawyers. Any lack of training or oversight or personal responsibility can be traced directly back to the issue of money.

As it is, public defenders are underpaid. The resources they are given are meager. They’re routinely ridiculed, demeaned and dismissed. Even those that work tirelessly for their clients are compared unfavorably to the “real lawyers” that the client could hire, only if he had money. We’re the backup to the backup.

This perception won’t change if I decide to go on strike. This perception won’t change if I step in front of an overworked colleague and prevent him from misrepresenting a client.

Agree or disagree with this particar viewpoint, you'd be hard-pressed this week to find a legal blogger who wrote more persuasively on difficult subjects than Gideon did. Two other of his posts deserve your attention: one concerning proposed restrictions on the right of Habeas Corpus in his home state of Connecticut and another which discussed proposed residency restrictions for sex offenders. As he put it, some of what he writes "is extremely rude and vitriolic. But if you don't read it, you support terrorists." I couldn't agree more. Go Gideon! Beat Osama!

From Osama to Obama (still different people, despite what you may have heard on Fox News), this was the week when Obamacare officially took over our lives and our grandchildren's bank accounts. How exactly the federal government has the Constitutional authority to compel citizens to purchase health insurance is a bit murky at this point. Speaker Nancy Pelosi famously said that Congress had to pass the healthcare bill so that the hoi polloi could find out what was in it; perhaps now that it's passed, she can explain how it's Constitutional (assuming she's concerned about such trivialities). Though many have suggested that the bill falls under the government's very broad commerce power, others have suggested that it's defensible under the taxation power. This prompted David Kopel to explore whether the tax power has limits:

Americans today are not bound to meekly accept the most far-ranging assertions of congressional power based on large extrapolations from Supreme Court cases that themselves come from a short period (the late 1930s and early 1940s) when the Court was more supine and submissive to claims about centralized power than was any other Supreme Court before or after in our history. American citizens, in the political process and in their personal lives, will ultimately have the final word on the Constitution.

A large and permanent majority of the American people immediately accepted Social Security as a constitutional solution to poverty among the elderly and to massive unemployment (since Social Security would open up jobs by encouraging people to retire sooner). The American people have not accepted Obamacare as a constitutional solution to health insurance problems. If the American believe that there is a “crisis” about the high cost of health insurance, then the American people can also believe that the solution is not to punish people for refusing to buy overpriced insurance that they don’t want. The American people can reject the notion that our Constitution should be contorted and distorted to accommodate such a destructive and intrusive scheme.

It is eminently within the authority of We the People to act politically on our constitutional beliefs that the congressional power to regulate interstate commerce does not extend to forcing people to buy a product which Congress has forbidden to be sold across state lines; that the power to regulate interstate commerce is not the power to compel a person to participate in instrastate commerce; and the that power to levy income or excise taxes does not include the power to impose punishment in the form of punitive taxes on persons who choose not to buy something–or who choose whether to wear hats and when to sleep.

The Constitutionality question is no longer an academic thought exercise; as Ashby Jones reported, the ink was not yet dry on Obamacare before numerous states' attorneys general filed a lawsuit to stop it:

The suit makes a variety of assertions:

First, it alleges that Congress, in passing the bill, overstepped its authority; that the Commerce Clause of the Constitution does not grant Congress the power to pass so sweeping a law;

Second, the plaintiffs allege something we, frankly, didn’t see coming — that the bill deprives the states a “Republican Form of Government,” in violation of Article IV, Section 4 of the Constitution;

Third, it asserts that in passing the law, the feds have encroached on state sovereignty, in violation of the Tenth Amendment to the Constitution;

Fourth, it alleges that the provision of the bill mandating that all Americans purchase health care or be fined constitutes an unconstitutional tax that violates Article I, Sections 2 and 9.

Though he's no fan of either the Obamacare legislation or modern commerce clause doctrine and would dramatically change both if he could, Orin Kerr is not putting his money on the attorneys general:

I just don’t see lower courts finding these issues difficult, and I don’t see the Supreme Court likely to take the case. I recognize there’s always the theoretical possibility of the Supreme Court doing something totally unexpected — a Bush v. Gore moment, if you will — but I think the realistic possibility of that happening is less than 1%.

Kerr's co-blogger Jonathan Adler is slightly more optimistic — but only just:

[W]hile I think judicial rejection of the mandate is unlikely, I hardly think the chances are as remote as Orin suggests.

....

It is also worth speculating on the politics of the individual mandate by the time any legal challenges reach the Court. If, as many believe, the Court is somewhat responsive to political pressures and popular sentiment, this could influence how the Court evaluates arguments that Congress has gone too far. If recent polls are to be believed, a substantial majority of Americans oppose the health care reforms passed by Congress, and those who strongly oppose the reforms outnumber those who strongly support them by about two-to-one. Striking down a popular health care provision would be a risky course for the Court. But what if unhappiness with health care reform were to fester and grow? What if the only thing preventing repeal were to be the same supermajority requirements that almost killed health care reform in the first place? Were this the case, the Court would not be picking a fight with the political branches so much as it would be reaffirming the popular will. In such a case, a Court decision against ObamaCare would not provoke howls of protest so much as sighs of relief.

In closing, let me also stress that the arguments against the individual mandate are anything but frivolous.... And while it’s a relatively safe bet to predict the Court will reaffirm federal power if pressed, the Court has confounded such expectations before — and there’s a non-trivial chance it could do so again.

Do I hear one percent? One percent? One percent? Thank you, Mr. Kerr! Do I hear ten percent? Ten percent? Eight percent? Five percent? Come now, five percent, gentlemen? Five percent? How about "a non-trivial chance"? Excellent, Mr. Adler! Thank you, sir! Now, can I hear moral support for these fine attorneys general? Anyone? Yes, I see Scott Greenfield, the Virginian from New York:

Within minutes of President Barack Obama signing health care reform into law, the attorney general of Virginia (and maybe 13 other states) will file suit against the United States of American to block imposition of the mandate as being unconstitutional. The basis for this suit will be that the federal government has exceeded its authority under the commerce clause. I stand with the Virginny AG.

The argument that Congress has applied the commerce clause with Hamiltonian abandon such that it covers everything short of a dirty look between spouses under some ill-conceived theory that the air molecules moving through the lungs of Americans originated in some foreign state has long been troubling. Virginia says it's unconstitutional. I do too.

No particular reason to mention at this moment that if Virginia prevails, every federal criminal law and regulation enacted within the past 50 years is also unconstitutional.

....

Forget the odds, Virginia. Go for it. Stand up to those usurpers in Washington. Don't let them tell you that you can't win.

Go Virginia! Fight, Fight, Fight!

Ah well, win or lose, it's not the end of the world... is it? Richard Eisenberg wondered the same thing this week:

Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate. But the day that it does will be a tragic one for the Republic.

The reason will not be the survival of ObamaCare. It is, I think, a poorly conceived proposal that will do more harm than good. As written, it seems likely to fail and, if not abandoned, may well lead to a single payer system. But we have survived worse.

It will be tragic because the notion of a Congress limited by the scope of its enumerated powers will have finally suffered the coup de grace. The Bill of Rights (once famously – and now ironically – thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress. If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what – save some other constitutional restriction – it cannot require you to do – or prohibit you from doing.

I appreciate that many people – including most of my colleagues in the legal academy – see nothing wrong with this. There are, to be sure, still political constraints on Congress. Even if Congress can ration trips to McDonalds, it won’t.

The extent to which you are comfortable with this may turn on the extent to which you are comfortable with the centralization of authority and, in a world in which Congressional enactments are increasingly delegations of authority to bureaucrats, your confidence in the capacity of experts to “get it right.”

I am not very comfortable. I am not very confident.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., techshout.com, the East Riding of Yorkshire Council (Thomas Savage, A Child Criminal), and Paris Odds n Ends Thrift Store.

"Blawg Reviews. He's welcome to them."

Kevin Thompson, the reigning Blawg Review of the Year award winner, hosts this week's edition of the carnival of legal blogging at his Cyberlaw Central blog. The science fiction-minded Thompson honors his favorite science fiction novel, Frank Herbert's Dune in Blawg Review #256. He writes:

[T]he novel is an amazing piece of literature. Most sci fi novels before Dune had one or two major ideas per book, but Dune emerged fully formed with layers upon layer of complexity, with deep ideas of religion, politics, the messiah complex, revenge, prophecy, technology, and ecology, to name just a few. I hope the planned film remake that keeps getting postponed will do the book justice.

Dune is often credited with raising awareness of our planet as a living complex organism, and has also been credited with supporting the movement now known as Earth Day. March 22, 2010 is also World Water Day, which makes Dune particularly relevant. On Arrakis, water is the most precious resource. The culture of Arrakis is based around the lack of water, so much so that spitting is a sign of respect (a gift of the body’s water) and when the main character, Paul Atreides, cries at a funeral people are amazed that he is giving water to the dead.

It took Herbert six years of research and writing to create the complex plot and worlds of Dune. The story is set 20,000 years ahead of our time, after an anti-technology jihad and the diaspora of mankind across the galaxy. It’s set mainly on the planet Arrakis, the desert planet which is the only source in the universe of the spice Melange. Melange is the source of power in the universe, as the Spacing Guild’s navigators rely on the spice to navigate between worlds, the Bene Gesserit sisterhood require it for their rituals, and the rest of the universe is addicted to it for its life-extending powers.

....

Dune is an amazingly layered story that rewards a careful reader, or better yet a re-reading. Personally, I’ve re-read Dune once a year ever since I first had my mind blown upon first reading it.

I re-read the series myself from time-to-time and it's a considerable undertaking (to Herbert's original six Dune novels have been added a number of prequels and sequels written by his son and a co-author) but one which invariably rewards. At this point, I have difficulty recalling how I came across the books in the first place all those years ago; it's entirely possible that playing the old Avalon Hill Dune game was the first I knew of this engrossing saga. I recall being shocked at the difference in tone between the first novel, with its story of Paul Atreides' heroism, and the second, Dune Messiah, which jumps ahead several years from the first and tells how Paul's ideals have become corrupted by the power concentrated in his hands by his control of Arrakis and by the scale of the responsibility he has assumed.

Another recurring theme in the Dune stories may have some bearing on this week's Blawg Review and the processes of online life more generally. In a number of contexts, various characters and groups in the novels seek access to a supraconscious form of memory. The Bene Gesserit sisterhood is able to access "other memory" — the lifetimes of memories of all of their female ancestors (as well as those other women with whom they choose to share memories). Once accessed, these other memories are not static recollections but rather living consciousnesses within their own, to whom a Bene Gesserit may turn for counsel. By the time the events of Dune begin, the sisterhood has sought for centuries to create a "Kwisatz Haderach", a male Bene Gesserit who, unlike the sisters, will be able to access all other memories including those of male ancestors. The only character present in all of the (original) novels is Duncan Idaho, a soldier and trusted confidant of the Atreides family; dozens of times over centuries, Idaho is killed and reborn as a ghola — a living being copied from the cells of a dead one — and grows beyond himself through the awakening of the memories of his predecessors, essentially allowing him to live forever. At the end of the final novel, Chapterhouse: Dune, a pair of enignmatic enemies who represent the greatest threat to humanity recognize the ghola Idaho as a threat to them; the final lines of that book are spoken by one of the pair, dismissively but with an undercurrent of apprehension: "Gholas. He's welcome to them."

Where once we were isolated legal students, practitioners, and academics who could share our thoughts only with those in proximity, blogging and social media have turned us all into a kind of "other memory" for one another. The knowledge, experience, and insight we are able to access here, within our ever-expanding networks of colleagues and friends, colleagues-of-colleagues, friends-of-friends, is nothing short of amazing. By participating, we are able to give and receive and grow beyond ourselves while allowing others to grow as well. Thanks to our tools, these memories need not fade or become inaccessible, but we should always keep in mind that tools do not create — we do.

Thompson's Blawg Review #256 is, like the Dune novels which inspired it, amazingly-layered. If any doubted whether he would be the man to beat for Blawg Review of the Year honors this time around, this edition of the carnival of legal blogging will put those doubts to rest. Amongst the many highlights of this issue are considerations of the law of environmentalism, appreciations of "the strong women of the legal blogosphere", and thoughts on representing unpopular clients.

Lance Godard will host next week's Blawg Review #257 at his 22 Tweets blog. If this week's lengthy Blawg Review overwhelmed you, come back next Monday; twenty-two tweets comes to just 3,080 characters.

TGIS: Thank God It's Schadenfreude! (262)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Wednesday, March 17; link good at time of posting):

Alaska State Troopers needed just one traffic stop to make two arrests for drunken driving. Troopers said a highway patrol officer arrested a 42-year-old man for drunken driving after stopping him for speeding on Sunday. A short time later, a 29-year-old man arrived to take custody of the car. The officer determined he had driven to the scene while drunk.

The Fairbanks Daily News-Miner reported that the second man also had an outstanding warrant for failure to report to jail from a prior DUI.

[Previous TGIS]

A Round Tuit (23)

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 recall that during finals in Political Science 101, there were more than a few of us humming the classic Schoolhouse Rock song "I'm Just a Bill" to ensure that we didn't forget any of the steps required to create a valid law:

Bill: I'm just a bill
Yes I'm only a bill,
And I got as far as Capitol Hill.
Well, now I'm stuck in committee
And I'll sit here and wait
While a few key Congressmen discuss and debate
Whether they should let me be a law.
How I hope and pray that they will,
But today I am still just a bill.

Boy: Listen to those congressmen arguing! Is all that discussion and debate about you?

Bill: Yeah, I'm one of the lucky ones. Most bills never even get this far. I hope they decide to report on me favourably, otherwise I may die.

Boy: Die?

Bill: Yeah, die in committee. Oooh, but it looks like I'm gonna live! Now I go to the House of Representatives, and they vote on me.

Boy: If they vote yes, what happens?

Bill: Then I go to the Senate and the whole thing starts all over again.

Boy: Oh no!

Bill: Oh yes!

It's somewhat disillusioning to discover all these years later that Schoolhouse Rock misled us and we didn't need to worry about all that voting crap. On the other hand, it's a relief to know that Bill wasn't really in any mortal danger — bills can become laws the usual way or, if the votes just aren't there, a quick rule change can "deem" them passed and ignore the fact that they weren't. Good for Bill; bad for the Constitution.

Now that Schoolhouse Rock no longer seems a reliable source of information concerning the limits the Constitution places on the legislative process, we're obliged to turn to academia for a sanity check — can the House of Representatives' leadership really do something like this without running afoul of the Constitution?

Professor Michael McConnell of Stanford thinks not:

It may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a "Bill" to "become a Law," it "shall have passed the House of Representatives and the Senate" and be "presented to the President of the United States" for signature or veto. Unless a bill actually has "passed" both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to "determine the Rules of its Proceedings." Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

....

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 "the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal." These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

In the other corner is Professor Jack Balkin of Yale; Balkin thinks that the plan could be made Constitutional, but only if the political cover sought by the Democratic majority's leadership is abandoned:

There have to be two separate bills signed by the President: the first one is the original Senate bill, and the second one is the reconciliation bill. The House must pass the Senate bill and it must also pass the reconciliation bill. The House may do this on a single vote if the special rule that accompanies the reconciliation bill says that by passing the reconciliation bill the House agrees to pass the same text of the same bill that the Senate has passed. That is to say, the language of the special rule that accompanies the reconciliation bill must make the House take political responsibility for passing the same language as the Senate bill. The House must say that the House has consented to accept the text of the Senate bill as its own political act. At that point the President can sign the two bills, and it does not matter that the House has passed both through a special rule.

....

The structural constitutional reason for this requirement is that members of the House must not able to avoid political accountability for passing the same bill as the Senate. The point of bicameralism and presentment is that all three actors (House, Senate and President) must agree to the legislation, warts and all, so that all three can be held politically accountable for it. They cannot point fingers at the other actors and deny responsibility for the policy choices made. The House cannot say, "oh we didn't pass X; that was the Senate's decision." If the House doesn't accept the same language as its own, even if that language is then immediately changed in an accompanying bill, there is no law.

Speaker Pelosi is trying to give House members a way of saying they did not vote for the Senate bill, but my point is that however much she and they may be trying to do this rhetorically, she and they can't really do this politically and constitutionally. They have to take responsibility for what they are doing and the language of the bill has to say that they are taking responsibility. This is the point of Article I, section 7.

A number of legal bloggers wondered whether the Congressional rule shenanigans would be a justiciable controversy; Congressional leaders and the Obama Administration probably hope that it isn't, if for no other reason than the fact that relations between the Judicial Branch and the Executive are more than a little tense at the moment. David Lat connected the dots for us this week — from Chief Justice Roberts' flubbing of the Presidential Oath at the Inauguration to the President's criticism of the Court's Citizens United decision during the State of the Union Address to a recent exchange of comments by Roberts and a White House spokesman concerning the State of the Union Address criticism. Ashby Jones discussed the Chief Justice's comments, made at a law school address:

Responding to a question, according to the [Associated Press], Roberts said anyone was free to criticize the court.

“So I have no problems with that,” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum.

“The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according the requirements of protocol — has to sit there expressionless, I think is very troubling.”

According to the story, Roberts pushed forward, wondering if the justices should continue the tradition of attending the speech. “I’m not sure why we’re there.” Justice Antonin Scalia seems to agree with Roberts — he no longer attends the speech.

If Article I is about to be... um, Slaughtered, Amendment I's prospects might have seen a slight uptick recently. Marc Randazza hailed the introduction of "The Citizen Participation Act", a federal equivalent to the anti-SLAPP laws on the books in several states:

About half of the states have some form of legislation against this, but only California and Oregon have anti-SLAPP statutes that are worth a damn. Flori-duh’s is so watered down that it may as well only apply when a Unicorn shits on the Defendant’s lawn. However, in California and Oregon, if a Plaintiff files a lawsuit that implicates the Defendant’s First Amendment rights, the Defendant can file a “special motion to strike.” Then, the Plaintiff will need to show that his suit is not just a baseless and harassing claim. If the Plaintiff can’t do that, then the case is dismissed and the Plaintiff has to pay the Defendant’s attorneys fees.

Congressman Cohen’s bill is very similar to the California law... and provides the right kind of remedies.

....

I can not stress how important a bill like this is.

At the Popehat blog, Ken is generally a strong proponent of anti-SLAPP protections, but he has some reservations about the recently-introduced federal bill:

Let’s get this straight from the start: I’m in favor of anti-SLAPP statutes and vigorous legal protections for free speech. I’m just not convinced that federalizing libel law is the right way to go about it.

....

But here’s where the Citizen Participation Act really creates a dramatic change. It lets defendants in state court remove lawsuits to federal court in order to file an anti-SLAPP motion. In other words, it creates an entirely new basis for federal jurisdiction:

SEC. 6. FEDERAL REMOVAL JURISDICTION.
(a) IN GENERAL.—A civil action commenced in a State court against any person who asserts as a defense the immunity provided for in section 3 of this Act, or asserts that the action arises from an act in furtherance of the constitutional right of petition or free speech, may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending.

Now, the statute provides that the case gets remanded to state court after the federal court rules upon the motion. But still, this is a huge addition to federal jurisdiction. It amounts to federalizing a substantial amount of defamation law and defamation cases. It would create an immense additional burden on federal dockets — and bear in mind that the competitive advantage of federal court is the comparatively lighter dockets allow for more individualized attention. Federal judges, I guarantee you, will hate it. Finally, it would pit free speech against federalism. It sends the signal that state judges can’t be trusted to rule upon First Amendment or privilege issues — and encourages state court hostility towards such issues. It mandates not just a respect for constitutional rights, but a very specific procedural vehicle for pursuing them. It effectively makes federal courts the sole arbiter of freedom of petition defenses and most freedom of speech defenses in civil actions, and lets the states off the hook for defending those rights.

Do I like a vigorous defense for free speech? Absolutely. Do I think that on balance federal courts do a better job of it than state courts? In most circuits, yes. But that’s still not a good reason to federalize all First Amendment litigation.

Ken's co-blogger, Patrick, highlighted one state, Rhode Island, which isn't doing a great job of protecting free speech rights; that state has introduced a bill which would prohibit the sale of videogames rated "Mature" or "Adults Only" to people under the age of eighteen:

Another rason the bill is problematic, that is to say unconstitutional, is that it makes the ESRB, a voluntary trade association with no governing power whatsoever, the sole arbiter of what is and is not a crime in Rhode Island. Just because some prude at ESRB considers Headshot II: the Columbine Simulator offensive, doesn’t make it obscene. Rhode Island would not only be violating the First Amendment; It would be unconstitutionally delegating sovereign power to a private corporation.

Just how misguided is this bill, constitutionally speaking? It’s so unconstitutional that even Jack Thompson, the disbarred crank Florida lawyer famous for his anti-videogame crusades... agrees with me....

....

Rhode Island’s Senate has achieved what we thought could never be done: They’ve made Jack Thompson look like a thoughtful and judicious defender of free speech.

Free speech is faring a bit better this week elsewhere in the Northeast; Eric Turkewitz reported that the restrictive attorney advertising rules in New York have been struck down:

The new rules had barred, among other things, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results. I had previously criticized some of those rules on First Amendment grounds.

The lower court had dumped those rules. The only part of the lower court's decision that changes is the prohibition on portrayals of fictitious law firms, and that is just a minor modification.

....

It's a big victory for the First Amendment. But with that will also come more lawyer tasteless ads that embarrass the profession.

Scott Greenfield shared Turkewitz' satisfaction that free speech has prevailed (for now), as well as his apprehension about the depths to which advertising attorneys are likely to sink:

[A]s I believe that flagrant marketing is distasteful and unprofessional, bad for the profession and part of our race for the bottom, that doesn't mean that I support legal restrictions or prohibitions. The former is bad. The latter is worse....

....

The missing link is lawyers ourselves. I can't envision any set of restrictions on lawyer marketing that won't, coincidentally or not, be so overbroad as to include speech that lies outside and is entitled to protection, whether full or limited as commercial speech. I don't want my free speech restricted because your tacky and disgraceful marketing effort makes people's stomachs turn.

The Circuit has given lawyers a second chance. Here's the deal. Stop the race to the bottom, the next effort to be even more outrageous, more ridiculous, more unprofessional and undignified, than anyone before you. Stop trying to find some new way, some brighter light, some trickier claim, to make you stand out more than the next guy. Stop it, and chances are very good that the state will not seek to recreate restrictions on lawyer free speech that will chill the rights of the rest of us.

In another post, Greenfield wondered why Justice Clarence Thomas has been, for more than four years now, so reticent to exercise his right to free speech during oral arguments:

It's unfathomable to me that he would choose to sit on the bench in silence. The sheer monotony seems unbearable, the droning of sound from advocates where there's no personal involvement, no exchange, no activity. Despite the efforts of anyone arguing their cause, not every case is fascinating nor every argument compelling.

....

There is nothing worse for an appellate advocate than to face a silent bench. Oral argument is the opportunity to hear the challenges to your cause and face your weakest point. While some believe that no one wins a case at argument, or that judges have already decided who wins and loses before argument rolls around, I don't buy it. Let them try to shoot down my point, and let me have the opportunity to make my case. Give me that chance to persuade you. That's what oral argument is all about. If you don't try to knock me down, I don't know what issues the judges are concerned with and can't address them. Silence is death.

The other justices on the Supreme Court are not at all reluctant to ask questions, to challenge, even to ridicule, the arguments of advocates. These questions are what advocates live for, to face them squarely and respond. Without knowing what negatives lurk in the judges mind, we can't confront them, change their minds. We can't win over anyone who remains silent. We may not win them over anyway, but at least questions give us a chance.

Once the robes come off, though, it seems that he's more willing to talk. Jess Bravin noted that Justice Thomas was amongst the many famous folk who responded to inquiries from an author posing as a ten-years-old child; asked about his favorite McDonald's food, Thomas replied, "I like the Egg McMuffin. Actually, I like almost everything there." Does this account for his silence on the bench? Perhaps he just doesn't want to speak with his mouth full. Justice Thomas' wife, Ginni, has no trouble speaking her mind; this week, she formed a nonprofit conservative lobbying and political-organizing group, Liberty Central. Ashby Jones reported that her efforts have generated some criticism:

[P]artly spurred by recent press coverage, a debate has broken out about the propriety of a justice’s spouse diving headlong into a political movement.

A central question, it seems: could Virginia Thomas’s work present a conflict of interest for her husband?

Sue Hamblen, Liberty Central’s national coordinator, told the WaPo that Virginia Thomas met with ethics officials for the federal courts and was told her work “was in no way a conflict of interest.” Hamblen added that the group does not intend to make endorsements in political campaigns but that it will issue “scorecards” ranking candidates on conservative issues. The group is reportedly not aligned with the conservative “tea party” groups.

This isn’t Thomas’s first foray into activism. She has worked for former House Republican leader Richard A. Armey (Tex.), the Heritage Foundation and the U.S. Chamber of Commerce. She most recently worked in Washington for Hillsdale College, a small liberal arts school in Michigan.

Kashmir Hill offered a snapshot of the professional lives of other "Supreme Spouses"; by and large, they're a professional lot and unlikely to cause trouble, though I'd keep an eye on Justice Stephen Breyer's wife, who's a member of the British aristocracy. Returning to Ginni Thomas, Eugene Volokh wrote that her political organizing is hardly something to be worked-up over:

What we have here is the inevitable result of the growing equality of women, the resulting growing tendency of lawyers to marry lawyers (and lawyers are disproportionately likely to go into politics), and the general tendency of people to marry others like them. It makes sense that many judges these days are women whose husbands are of the profession, social class, and cast of mind that makes them want to go into politics. It makes sense that many male judges have wives who are likewise likely to be interested in politics. And of course since spouses are supposed to help each other (and much such help is entirely legitimate), the success of one may yield more opportunities for the other.

Nor does this strike me as particularly pernicious or dangerous: Judges have plenty of political and ideological predispositions that they bring to the job from their earlier lives, and of course they have judicial philosophies that often make them in sync with particular political groups. That too is inevitable, and the fact that a spouse (or a child) has a high-profile political position doesn’t add much, I think, to those existing predispositions. In particular, I don’t think that the desire to remove any such mild additional influence of the judges justifies limiting the lives of the judge’s spouses and children. Virginia Thomas, like Ramona Ripston [wife of a Ninth Circuit Judge and, until recently, head of the Southern California ACLU], should be free to go where her beliefs and talents take her, without having her spouse’s job cripple those ambitions.

There's a lot of ink (well, pixels) spilled each week in the legal blogosphere concerning clients — how to get them, how not to get them, how to keep them, how to serve them, how to bill them, what not to do for them, and so on (and on, and on, and on). One thing I can't recall seeing discussed before this week is the question why some attorneys who, frankly, aren't very good are very good at attracting clients; not that you'd necessarily want them as your clients, but what makes those clients tick? Brian Tannebaum, in conversation with Lee Rosen, touches on something — some of these attorneys are exceptionally good at communicating to their clients that they care about their clients' outcomes, regardless the fact that, unbeknownst to those clients (and perhaps the attorneys themselves), they're ill-equipped to accomplish successful outcomes regularly. He continues:

This is a fascinating issue. We all know that clients hire lawyers for the strangest reasons. Something, one thing the lawyer says or does can determine the client's happiness with the lawyer. In the criminal practice we all experience the difference in the client who barely shakes your hand when you win his case, and the client who hugs you after you lose his case and before he's shipped off to jail.

From a client's perspective, the definition of a "crappy" lawyer is completely different from that "within" the profession.

Lee asks the important question:

It all makes me wonder whether she’s really a crappy lawyer or whether I have ideas about what’s important that might be irrelevant. Who sets the standard for crappy? Lawyers or clients? Maybe my idea of crappy doesn’t really matter?

Maybe.

As mob hitman Jules Winnfield observed in Pulp Fiction, "Personality goes a long way." Scott Greenfield can accept that perhaps the path to easy economic success in private practice is to focus on personality rather than competence, but he's not recommending it:

This makes for a brutally painful choice. It also explains why the internet is replete with lawyers trying desperately to appear to be "caring and concerned and empathetic" rather than skilled. After all, what good is being competent if no one retains you?

There is, however, an alternative way to view this. While there will always be lawyers whose business is built solely on their likability, despite their either being incompetent or engaging in conduct that pleases the client but destroys their professional credibility, there are also practices built on outcome and effort. Granted, it requires a better, more knowledgeable clientèle to appreciate skill over empathy and long telephone calls, but they are out there and have more mature expectations of counsel.

....

It's up to each of us to decide what type of lawyer we want to be. The question seems to come down to whether it's more important to get the clients' money by meeting the clients' likability needs or to provide the client with great legal service. The irony is the client may well love us more if we're better friends and worse lawyers.

Mike Cernovich writes that people who've become involved in the legal system — both civil and criminal — are generally not completely "normal" and they want an attorney who'll not just give them a chance at prevailing but will also validate their quirkiness:

Most people in the system have issues.

Most clients want to feel the love. They want validated. They expect you to answer their calls to discuss the same issues over and over again. They expect you to file every motion their reading of USA Today has told them is relevant.

Most lawyers resent this. "Didn't we discuss this already?" "That motion won't work." "No, I'm not going to tell the judge he's biased. I have a reputation to uphold." "How dare these clients tell me how to do my job?!"

Yet tapping into a client's need for constant validation is profitable.

If personality trumps competence, that's a shame for both the legal profession and our clients. If you're still keen to develop and demonstrate competence, however, B.W. Barnett passes along some great guidance this week for criminal defense attorneys who hope to sway a prosecutor to give "special treatment" to a deserving client:

Is there is way you can help the prosecutor see that your client deserves special consideration? Absolutely.

Now, keep in mind, this doesn’t apply to all of your clients. Like it or not, the defendant who has been to state jail is not going to get the same open-mindedness from the prosecutor as the first time offender. That should be obvious. Maybe your client does have some history, but has really turned her life around. This was just a stupid mistake. Is the fact that your client is a first-time offender always going to get that special deal or is the fact that your client has a criminal history always going to preclude such a deal? Nope. What you need to do is…

Go the extra mile. Prepare a folder with mitigating information. Yes, a folder. Prepare it as if you were turning it in to a professor. Why? Can’t you just tell the prosecutor the information? You may think that he probably wouldn’t have time to really look at a folder anyway… Wrong. Remember, you, the defense attorney, portray the image of your client to the prosecution. Portray it in a professional manner. And a folder full of mitigating information about your client will grab his attention.

What do you put in the folder? Anything that demonstrates your client’s redeeming qualities: letters of recommendation, transcripts, proof of employment, recent accomplishments, anything. The sky is the limit.

....

Provide hard copies of mitigation to the prosecutor. And, if you’re going to do that, do it right. Don’t throw a bunch of letters together into a 33 cent folder. Do it right. Keep that mindset of a college project that’s going to be graded. After all, your client is, in some way, being graded. Go for the A+!

Barnett's Texas-centric Liberty and Justice for Y'all blog received an A+ recently from fellow bloggers Scott Henson, Mark Bennett, and Scott Greenfield; Greenfield was even prompted to wonder:

Whether it's the water or the barbecue, I can't say, but once again, Texas leads the way in criminal defense blawgs with the newest kid on the block, Liberty & Justice For Y'all.

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What's notable about L&J4Y is the absence of any self-promotion in the background. When I first read through the blawg, I had no idea who was doing the writing. Brandon has since added in a bit of background info so at least we knew who to praise or yell at, as the case may be. This is all about the law, with no ulterior motives.

The legal blogosphere may be kicking harder in Texas, but it seems to be at least alive and kicking everywhere else as well, according to Kevin O'Keefe, whose LexBlog group has completed another "State of the AmLaw 200 Blogosphere" report. This isn't to say that the legal blogosphere isn't subject to ebbs and flows as bloggers — a thoughtful and self-critical bunch by nature — assess and reassess, as two noted bloggers did this week. Prompted by a comment by Bob Ambrogi, Venkat Balasubramani, who blogs at Spam Notes and guest-blogs regularly at Eric Goldman's blog, wondered whether the broadening of his legal interests over the past three-and-a-half years of blogging suggest that he should "make a clean break" from his focused personal blog and start a different one; he weighs the pros and cons in a thoughtful post. Coming full circle, Bob Ambrogi took to heart Balasubramani's discussion (prompted by his own comment) and added his own thoughts about shuttering his venerable LawSites blog in favor of a new one which covers the breadth of his interests:

The question for both of us is: Does it make sense to make a clean break from one blog and start anew with another? For both Venkat and me, the question is complicated by the fact that our blogs have achieved some degree of recognition and regular readerships. My blog has even won some awards, including twice being named one of the ABA Journal's Blawg 100.

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What was most striking to me about Venkat's post was his comment that this question "literally weighed me down." I know precisely how he feels. It seems almost silly to spend so much time pondering the fate of a blog. Perhaps it shows that both Venkat and I remain passionate about blogging, if uncertain about our blogs.

Also considering the future — of the entire legal profession — is Richard Susskind. Dan Hull recommended a recent interview of Susskind conducted by Mike McIlwrath for his International Dispute Negotiation series (part one and part two). Hull wrote:

As clients and the profession continue to change before our eyes, only a few have made it a full-time job to think through the fallout and discuss solutions. Susskind is a expert on legal technology who, in the mid-1980s, studied and took a post-graduate degree in computers and law. In the next 25 years, he wrote, lectured, and authored two other books, as well as countless columns on law for The Times of London.

Much of his work concerns the effects technology is having on corporate law practice globally. A popular speaker these days, Susskind teaches in Glasgow and London and, since 1998, has been IT Adviser to the Lord Chief Justice of England.

"More for less" as the new regime. Susskind has long predicted IT-driven changes in the relationships between in-house departments and firms. How work will get done, and paid for, Susskind has argued, is about to change, radically and in the long term. Moreover, those changes, while threatening at first, are likely to make lawyering more enjoyable--or at least more fun for the handful of us drones who actually like it anyway.

If you're looking for more from Susskind, don't miss his excellent interview with Mike Semple Piggot in the Inside Track podcast series (transcript).

Ron Coleman has said it before and he'll say it again — entrepreneurs shouldn't put the cart before the horse by rushing to register their trademarks:

For well over nine out of ten new businesses, the odds of your idea sinking or swimming on the strength of a trademark are slim indeed, and slim too is the war chest most entrepreneurs bring to the battle of free enterprise. Prove to yourself and the world that you have a business plan, a product or service that people want, the ability to deliver it and to scale it up, the capitalization to fertilize all that and the smile of Providence on your efforts. If in the process you develop something worth protecting as a trademark, that mark has already been storing up goodwill and secondary meaning and is enforceable as against infringers under state law and Section 43(a) of the Lanham Act. If it would be a good, business-justifiable use of what is still early-stage capital to register your trademark at this point, by all means do it.

Coleman continues to discuss what makes and doesn't make a trademarks case, something which tends to be overlooked amidst all the intellectual property rhetoric flying about.

Rick Horowitz explained his long and winding road from information technology management in a large company to the practice of law and told of the night which "doomed [him] to the practice of criminal defense". Enjoy the whole thing.

Sadly, I must leave you this week, but at least I'm telling you this myself rather than ducking-out and having my attorney let you know with a carefully-worded letter. According to Kevin Underhill, actor Barry Williams was less Greg Brady than Johnny Bravo recently:

Elizabeth Kennedy, the 31-year-old ex-girlfriend of 55-year-old ex-Greg-Brady Barry Williams, told RadarOnline recently that he broke up with her via attorney. On December 11, 2009, Kennedy claims,

[Barry] told me he was going down to the car to get his cellphone and instead he let his lawyer in. And so I was out on the patio and the next thing I know -- I look up and there's Joan Daniels [Williams' lawyer]. And she tells me that I have 10 minutes to put my shoes on, hand over my keys and get out of the house.

I think this proves that Mike Cernovich was right — endlessly validating your clients' narcissism is the road to riches. I'll see you all later... I just need to go down to my car to get my cellphone.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., the American Bar Association, the University of Minnesota Bio-Medical Library, and Paris Odds n Ends Thrift Store.