Putting Our Best Faces Forward

Jamison Koehler hosts Blawg Review #296 at his Koehler Law blog. As regular readers of his blog know, Koehler is a thoughtful fellow — about his solo criminal defense practice in particular, the practice of law more generally, and the grander world beyond legal blogging. This week, Koehler thought about the way we bloggers present ourselves. We're known more for our words, of course, but when we show our faces to our audiences, are these formal pictures or informal ones? Which, Koehler wondered, better represents us? He wrote:

For blawgers who chose such a professional shot, I was interested in obtaining an alternative image, something regular readers of their blawgs may not have seen before. Unlike the more staged pictures of the photographer’s mother, the only insights offered by the formal headshots many of us use on our websites are insights into the photographer himself. It is, after all, the photographer who tells the subject how to hold his head and where to look. I was also intrigued by the blawgers who don’t use any photograph at all, and decided to track down photographs of blawgers whose images are not readily available on the Internet.

Because the best blawgers all speak with a distinctive voice, my purpose in doing all of this was to try to make a connection between the image and the voice. Where you don’t have a mental image of the blawger, your mind tends to fill in the details as you listen to the voice. It is almost like going on a blind date: You want to know if the image of the blawger matches your expectations.

I for one enjoyed the album of familiar and unfamiliar pictures of my legal blogosphere fellows. I don't consider myself particularly photo-shy, but after nearly six years here, the most recognizable pictures associated with me are the detail of the judge from Thomas Rowlandson's Court of Chancery (he's been the "me" in Infamy or Praise's sidebar since its inception), my Nintendo "Mii" avatar (which is my face many places online, including on Twitter), and the "Towel Day" photo I sent to Kevin Thompson in 2009 for his Blawg Review #213. It was this last picture which Koehler used when he very graciously linked to my most recent "Round Tuit" post. It's not a bad photo of me (in the accuracy sense, I mean, not the photogenic one); a year-and-a-half later, the lines may be deeper, the circles darker, and the beard more grey, but it's still me. Notwithstanding, after six years, it may be time for a more formal portrait online. Perhaps my online doppelgänger, prominent ski photographer Colin Samuels, with whom I've jockeyed for years for Google position, could oblige me and take the picture.

Anyhow, enough about me (and that other Colin Samuels). Amongst the highlights in this week's Blawg Review are posts about the divisions between the practical and academic blawgospheres, the inconvenient life of a witness, and the importance of finding and telling your clients' stories.

The anonymous Editor of Blawg Review is notably elusive when the cameras come out; at the moment, it's also difficult to picture the host of next week's Blawg Review. Indeed, there are no scheduled hosts for any of the Blawg Reviews during February or March. The long-running carnival of legal blogging is nearing its 300th edition, but it'll never make it without hosts to get it there. I've written or co-written six of the 296 editions thus far; it's your turn to get in the picture.

TGIS: Thank God It's Schadenfreude! (305)... The Sequel!

This week's bonus joy in the misfortune of others comes courtesy of Wired (from Thursday January 27; link good at time of posting):

An unexpected and unwanted text message from a wireless company prematurely exploded a would-be suicide bomber’s vest bomb in Russia New Year’s Eve, inadvertently thwarting a planned attack on revelers in Moscow, according to The Daily Telegraph.

The would-be suicide bomber was planning to detonate a suicide belt bomb near Red Square, a plan that was foiled when her wireless carrier sent her an SMS while she was still at a safe house, setting off the bomb and killing her. The message reportedly wished her a Happy New Years, according to the report, which sourced the info from security forces in Russia.

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (305)

This week's joy in the misfortune of others comes courtesy of the Asbury Park Press (from Thursday, January 27; link good at time of posting):

An Italian bride has asked her new hubby for a separation after he brought his mother with them on their honeymoon.

The woman, identified as Marianna C. of Rome, filed a petition Wednesday saying the problem began when her mother-in-law showed up at the airport, passport in hand, just as the couple was set to fly to Paris, ANSA reports.

....

After the honeymoon, the 36-year-old bride said her mother-in-law also spent the Christmas holidays with them, which prompted her to drive back to her family in Naples since her husband’s “excessive ties” to Mamma “made it impossible to establish a healthy conjugal relationship.”

[Previous TGIS]

A Round Tuit (54)

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.

Though in my professional life I regularly deal with employment issues and closely follow major court cases, I often avoid discussing employment matters in these Round Tuit posts. Actually, come to think, it may be because I deal with employment issues regularly that I tend to skip them here. Discussing these feels too much like doing my homework or taking out the garbage.

Nonetheless, I'd be remiss if I didn't mention this past week's Supreme Court decision in Thompson v. North American Stainless, which established a Title VII retaliation claim for some third parties and adopts a "zone of interests" test for determining standing to bring such claims. Perhaps remarkable as these expansions of Title VII law is the fact that the decision was a unanimous one, issued by what's often described as the most business-friendly Court in recent memory. Michael Fox commented on that seeming incongruity:

If there is one area of Supreme Court jurisprudence that employees can certainly not complain about it is the law of retaliation....

If I had any hope for an employer favorable decision, I had thought it would come from the strict constructionists, who could read the language of Title VII:

because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

to mean that Congress had said it was the individual who actually engaged in the protected activity that was protected, since it did not read because "he, or someone he is close to" had done certain acts. Which is what the en banc 6th Circuit had done.

I thought that they might have also noted that Congress knows how to expand the zone when it wishes, e.g. the Americans with Disabilities Act which contains a specific provision for association type discrimination where of course Title VII does not.

But when I saw today's opinion was authored by Justice Scalia, I knew it was not to be.

Russell Cawyer offered a succinct recap of the case's path to the Supreme Court:

The facts of Thompson v. North American Stainless are straightforward. In February 2003 North American Stainless was advised by the EEOC that Miriam Regalado filed a sex discrimination charge of discrimination against it. Three weeks later, Regalado's fiancee, Eric Thomas [sic], was terminated. Thomas filed a charge of discrimination of his own alleging that he was fired in retaliation because his fiancee filed a charge of discrimination. The EEOC found that Thomas had been retaliated against and issued a right to sue letter when conciliation was unsuccessful.

When the case reached the trial court, the judge dismissed the suit finding that Title VII did not recognize third-party retaliation claims. Because the case was decided on a motion to dismiss (prior to any discovery), the reviewing courts were required to take Thomas' allegation as true (i.e., that he was in-fact, terminated for his fiance's charge of discrimination). The Sixth Circuit Court of Appeals affirmed the dismissal for a different reason. The Sixth Circuit concluded that Thomas never engaged in protected activity because he didn't filed a charge on his or his fiance's behalf prior to his termination and therefore he couldn't bring a retaliation claim.

Ilyse Schuman explained that to this point, Title VII covered retaliation claims by "person[s] claiming to be aggrieved" (i.e., the person who filed the Title VII claim) and that this decision is a notable expansion of employer liability:

[T]he Court said that if the facts as alleged are true, it has “little difficulty” concluding that the plaintiff’s firing was unlawful, as Title VII’s anti-retaliation provision “must be construed to cover a broad range of employer conduct.” Relying on its prior ruling in Burlington N. S .F. R. Co. v. White, 548 U.S. 53 (2006), the Court noted that Title VII’s anti-retaliation provision is broader than its substantive antidiscrimination provision. Specifically, the anti-retaliation provision prohibits an employer’s action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Applying this standard to the facts of the case, it was not disputed that reasonable workers might hesitate to file a charge of discrimination if they believed their fiancées could be retaliated against. The Court acknowledged the concern that such a broad standard could subject employers to retaliation suits any time they fire an employee who happens to have a connection to another employee who filed a discrimination charge. The Court claimed that this concern does not “justif[y] a categorical rule that third-party reprisals do not violate Title VII. . . . we adopted a broad standard in Burlington because Title VII’s anti-retaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.”

Frank Steinberg characterized the Court's decision as "a sensible and straightforward case of statutory construction", but other legal bloggers suggested that Thompson has muddied the waters where retaliation claims are concerned. Amy Joseph Pedersen noted that the Thompson decision leaves employers in an uncertain position:

The employer argued that to permit a third party retaliation claim in this case would lead to a dangerous slippery slope – would firing an employee’s boyfriend count? How about just a friend? Anytime the employer fired a person who happened to have a connection to someone else who had filed an EEOC charge, the employer would have potential liability. The Court responded: “Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. . . . Given the broad statutory test and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules.” In other words, there is no bright line test for who is protected from retaliation.

Daniel Schwartz wrote that in finding for a Title VII claimant's fiancé, the Court expanded existing law, but by how much remains something of a mystery:

[T]he court left it to the lower courts to define the parameters as to who else might be included in the victim's "zone of interest". It did give some clues:

We expect that firing a close family member will almost always meet the [] standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.

The court went on to say that the the text of Title VII's anti-retaliation provisions are "simply not reducible to a comprehensive set of clear rules." In other words, its a case-by-case determination.

Oh, and good luck.

Eric Meyer and Patrick Smith also discussed the uncertain situation in which employers presently find themselves. Meyer wrote:

This case has an immediate impact on employers. Although, unfortunately, it is unclear where to draw the line to establish when an employer retaliates against an alleged harassment victim's co-worker. The Supreme Court expected that firing a "close family member will almost always" constitute retaliation and "inflicting a milder reprisal on a mere acquaintance will almost never do so." In the end, it all boils down to: what would constitute retaliation to a reasonable person?

Good question. That will be for the lower courts to flesh out.

One BIG point to underscore here. Employees who complain about harassment in the workplace and those who are in the alleged victim's "zone of interest" are NOT bulletproof. In Thompson, the Supreme Court assumed that NAS fired Thompson because his fiancé complained to the EEOC. If, however, NAS had made the decision to fire Eric Thompson before it learned of his fiancé's EEOC charge -- for example, Mr. Thompson may have been a poor performer -- NAS can still follow through and fire him. An employer is free to fire an employee for a legitimate business reason.

Smith added:

The practical challenge this case presents for employers is identifying the zone of persons who might be affiliated with a complainant. While acknowledging this difficulty, the Court nonetheless declined to establish a bright line to determine which relationships are protected and which are not.

....

Two immediate takeaways from this case:

First, when going down the road of termination, employers need to inquire whether there is anyone affiliated with the employee to be terminated who has filed a charge of discrimination. Who is affiliated? Certainly a spouse or other close family member; definitely a fiancée. After that, who knows?

Second, just because there is some affiliation does not mean the termination should not occur. The terminated employee is still required to prove a connection between his termination and the protected activity of the other employee with whom he is affiliated.

"Good luck." "Good Question." "Who knows?" These are not the sorts of things an employer (or an employer's in-house counsel) wants to hear.

The substantive legal blogosphere periodically hashes and rehashes who's part of the group, who's outside it, who demonstrates the right motivations for writing, and whose motivations are misguided. I've been one of those guilty of engaging in this navel-gazing, most recently (I think) just last September. It's no secret that I and others view SEO-focused, marketing-driven legal blogs as destructive to the legal blogosphere. Whether I mention them in these Round Tuits or not, each week there are thoughtful legal bloggers who eloquently express our antipathy toward the marketing-centric blogs which dilute the legal blogosphere.

This week, thoughtful legal blogger George Wallace discussed how the "blawgosphere" has changed both in tone and personnel since 2003, when he first launched his Declarations and Exclusions blog:

There is some irreducible quantity of "junk" to be found in every field of human endeavor, blawging very much included. It seems, though, that the proportion of junk among blawgs has only grown as blogging has been touted, year after year, as a valuable tool for selling legal services, rather than as a good in itself. That particular mania has spread from blogging to the wider world of social media, resulting in such oddities as the insidious but seemingly serious belief that Twitter, of all things, is useful for anything other than as rollicking a good time as one is able to squeeze out of 140 characters.

But we must return to the subject at hand: blawging.

"No man but a blockhead ever wrote, except for money," said Samuel Johnson, LL.D., or so Boswell claims, but my view is that the best blogs and blawgs have been and will always be the ones that are created not principally as a conduit to healthy receipts but for, dare I say it, the love of the game. Written because the blogger wants, needs to write. Written to be read, the fact of having been read being its own reward whether or not the phone rings because of it. Written for the sake of conveying something of interest or value to the reader, as a gift, for free. Nothing taints the practice of law quite like the Business of Law, and the inherent value of a blawg to both its author and its audience suffers, says I, to the degree that it is driven by—or, heaven forfend, is actually about—the Business of Law.

A blawg post should be the voice of a single lawyer, recognizably his or her own, speaking what that lawyer really knows or really believes, with vigor, with energy, and with heart and/or mind fully engaged. The mercenary motive, the pre-packaged or ghostwritten post, blawgs whose entries are vetted by committee: that way lies the shortest path to the junk heap.

While some of us might rail against the social media law marketers and those lawyers who subscribe to their gibberish, Antonin Pribetic has realized that that way lies madness. This week he told those marketeers, "I cannot help but admire your chutzpah" and offered them a gift instead — a legal blogosphere reserved especially for them:

Just as Mark [Bennett] and Scott [Greenfield] both identify the difference between practical and academic blawgs, there is also a third kind of blawg which social medial law marketers should immediately adopt and identify with: The “Flawg”.

....

Here’s my definition:

Flawg”: noun. A legal blog without any substantive legal content that is created, monetized and promoted exclusively for profit. A Flawg will often contain posts about the latest legal tech gadgets, or the how to gain new clients through the awesome power of the internet, in the absence of anything remotely legal to discuss;

“Flawger”: noun: someone who flawgs. Usually, a non-lawyer/social media law marketer, (but also a disbarred/suspended/unemployed/underemployed/retired/or failed lawyer who quit) who writes blawg posts about how to write blawg posts, SEO, ROI, iPads, cloud computing, top ten lists, and enjoys attending law marketing conferences and twittering about using #hashtags.

I won’t bother telling you about “Splawgs”. I’m sure you can figure what that means.

This is my gift to the social media law marketers. You’ll never be part of the blawgosphere, but now you can create your own flawgosphere.

While Twitter has replaced blogging for many attorneys, in general Twitter seems a sideshow to the legal blogosphere rather than a replacement for it. While there is increasing attention in Britain paid to lawyers and firms on Twitter, Mark Gould, whose day job is in knowledge management at a law firm in the UK, suggested that it's not for everyone:

As usual, the legal world is getting all excited about Twitter well after everyone else. I understand Richard Susskind is advising law firms to sign up, the Times has had a list of top 10 legal tweeters (no link because of the paywall). Legal Week has spotted some writing talent from Twitter and is publishing their contributions on its website and on paper. And now the Law Society Gazette has leapt on the bandwagon (helped up by a report from a web consultancy on law firms' use of Twitter).

Enough.

....

[T]he advice is that lawyers should be on Twitter. Why?

If the answer to that question is that a web consultant or social media guru said so, then ignore them. If the answer is that there are people you already know there, then go ahead. But don't expect to get anything out of it if you just follow Stephen Fry and your favourite newspaper columnist. Don't even expect anything if you follow other lawyers (even in-house lawyers). Certainly don't expect any return if you just listen. Twitter is a two-way medium. It is a place for conversations. The lawyer who joins the golf club just to sit at the 19th hole and listen to other people talking is wasting their time. You need to get stuck in. Play the game, walk the course with people who have similar interests, and talk.

Don't talk about the law -- nobody is interested in legal questions apart from eager students and people with an immediate problem. The first lot want you to give them jobs, and the second should be paying for their advice. Be natural, and commit to it. If you don't feel comfortable, the chances are that the clients you would like (and who would like you) are not on Twitter either.

A recent listing of the "top ten" law firm twitter accounts in the UK (ranked using the "TwitterGrader" tool) placed Norton Rose Group's account at number ten, despite the fact that it contained — then and still — exactly zero tweets. Though the report's authors acknowledged that fact, the rankings provoked a fair bit of criticism; by "a fair bit", I mean enough criticism that it's become known as "Law Firm Twitteratigate". Steven Mather dismissed the report's rankings and explained why none of the firms listed could be considered a success on Twitter:

All of the firms listed in the report simply us Twitter as an RSS feed, posting content (most likely automatically) from their website as and when it’s updated. Sure, it’s useful information at times, as are emails that th same firms send out occasionally.

I don’t think I’ve seen any of those firms be bloody social. I can just imagine going to a function with their nominated tweeter.

Me: “hi, how are you today?”
Law Firm: “JoeBloggs LLP acts on big deal link”
Me: “Well done you! So how was your Christmas?”
LF: “Bribary Act implications for corporate days act link”
Me: “yes I saw that on twitter, but in reality most businesses will ignore it anyway don’t you think?”
LF: [3 days later] “Why wills are important link”

The fact is you’d have walked off after round one. On twitter we lawyers all follow the big firms but that doesn’t mean they are good at twitter.

Brian Inkster composed an admirable round-up of the "Twitteratigate" kerfuffle and offered his thoughts on The Times' coincidental coverage of lawyers and Twitter:

The Times (@TimesLaw) steered clear of Twitteratigate and instead published an article on Why it’s time to open a corporate Twitter account. As I am quoted in this article I know that it was being prepared just before Christmas and it was simply a coincidence that it was published in the midst of Twitteratigate.

I have no idea whether the fact that The Times published a list of the ten best legal tweeters on Twitter to accompany that article was also a coincidence. Their list is @Inner_Temple, @CharonQC, @RichardSusskind, @DavidAllenGreen, @RichardMoorhead, @in_house_lawyer, @copyrightgirl, @legalfutures, @LegalBizzle and @TheNakedLawyer.

On the whole these are excellent Twegals and the Top 5o UK law firms could learn a lot from following and more importantly engaging with them. I must, however, say that whilst I admire Richard Susskind he should not have been on this particular list. Richard is slightly better at Tweeting than the Norton Rose Group in that he has posted (as of today) 76 tweets. However, all of these are broadcast tweets. Richard has not engaged once with anyone on Twitter. Furthermore, he protects his tweets (goodness only knows why). He has, however, allowed me to follow him. I trust he will not now block me!

Bruce MacEwen posted the first two parts of his series on law firm strategy in "the new normal" (second part here). In introducing the series, MacEwen wrote:

"With all respect, I think that's the wrong question. There's always new stuff out there, and most of it's not very good. Rather than looking for the next musing, it's probably better to be thorough about what we know is true and make sure we do that well."

The question was "What's the next new thing in business strategy?" and the answer was given by a professor at the International Institute for Management Development in Switzerland. It's much like Mark Twain's, or Will Rogers' observation (various attributions) that it's not what we don't know that gets us in trouble, it's what we know that just ain't so.

In this era of unprecedented-and no-end-in-sight-change to the law land landscape, it's not a bad time to recur to first principles.

Though his focus is on litigation, Mark Herrmann's advice in a recent post is recommended reading for anyone who works with in-house counsel; speaking as an in-house guy, Herrmann expresses as well as anyone has what we're looking for from the firms with which we work (and why we're so often disappointed):

“No surprises.”

When you interview for an in-house job as head of litigation, that’s what everyone — CEO, CFO, General Counsel — is likely to say: “All we want is to know in advance what’s happening. Don’t hit us with last minute litigation surprises.”

That characterization is only half true. Half the job is what you would actually expect, and why someone would actually pay money for a person to do this gig: Half the job is to minimize liability. That task, at least, requires a law degree and a little bit of skill.

But, remarkably, the other half of the job — avoiding surprises — is the aspect that seemingly draws the ire of the folks who run the joint. And that task is one that the kid down the block ought to be able to do with about fifteen minutes of training: How hard can it be to avoid surprises?

....

Avoid surprises.

That’s much, much harder than it seems. Help us out, and you’ll have our gratitude — and, over time, an increasing share of our business.

Cops lie. Not all the time, certainly, but often enough that the de facto presumption amongst judges and jurors that they don't lie is unsupportable. Coupled with the deference appellate courts show to determinations of credibility made at trial, decisions like that in Ruiz v. State can result. Orin Kerr described it:

Ruiz is a drug case involving an alleged consent search at the suspect’s home. The officers testified one way; the defendant testified very differently. The officers testified that they approach Ruiz on the street and politely asked him for ID. Ruiz invited the officers to his home, where his ID was located, and asked the officers to come with him. When the officers entered the home with Ruiz, they saw drugs in plain view. RUiz then agreed to tell the police about all the drugs he had stored there. Ruiz testified that the officers approached him on teh street with guns drawn, ordered him to provide ID, and then told him that if he didn’t produce ID they would arrest him. The officers then brought him to his home where they searched his entire apartment without his consent. The trial court found the officers’ testimony credible and the suspect’s testimony not credible.

The appellate court decision in Ruiz makes very clear that the appellate judges found the officers’ testimony hard to believe. Their testimony was not so inconceivable that the trial judge’s factual findings were clearly erroneous and could be overturned. But it was unlikely enough that the court used the opinion as a platform to talk about perjured police testimony and the need for trial judges to scrutinize police testimony to ensure the vitality of Fourth Amendment rights.

Scott Greenfield explained that facts like those in Ruiz are not uncommon and aren't always as sinister as these might appear to observers unfamiliar with life in the criminal justice trenches:

Constrained by deference, the court had to accept the hearing court's credibility determination, despite it's belief, strong enough to compel the court to write this benchslap, and affirm the denial. For every criminal defense lawyer who has presented a facial challenge at a suppression hearing of a defendant's testimony against a cops, we know the frustration. Absent extrinsic evidence, courts always back cops in a swearing contest.

....

What do the judges know? Some know that it all smells, but they don't have the good to hang a lie on a cop. When we give them that hook, and we happen to be before a judge with some gumption, we can get the right ruling. But when the best we can offer is he said/she said, almost no judge will ever side with the defense.

....

Truth isn't always clean, neat or normal. Truth can be the one in a million shot, the ridiculous oddity that we would never expect. They say "you can't make this stuff up," and we find that to be the case over and over. It never bears the "ring of truth." It bears the ring of absurd. Yet it's true.

Life in the trenches bears no resemblance to life in the choirloft. We conduct suppression hearings because we must, even knowing that offering two competing versions of the truth will do little to win over the judge. It's not enough that they know that cops lie, or that a defendant's testimony has more "ring of truth" than the cop's.

Before a judge will find that a police officer lied on the witness stand, committed the crime of perjury by knowingly and materially testifying falsely, we need to give the judge something hard to hang his decision on. Offering truthier testimony than the other side isn't a good enough reason to condemn the cop. Those of us charged with defending the accused know this. We realize what we're facing.

Finally this week, I want to highlight a post from Brian Tannebaum. Following the killings of two Miami police officers, he reminded us that the divisions between those in criminal defense and others in the criminal justice system are professional, not personal:

Events like this rock not only the police community, but the criminal justice system as a whole, and that includes defense lawyers.

....

It was sad yesterday to see a defense lawyer comment on a local blog about the murders that "I know we criticize the cops, but....." It was as if to say "I know some of you can't understand that everyone does their jobs....."

It's like saying "I'm a Republican, but I'm still upset over the attempted murder of Democrat Gabrielle Giffords."

It's at the heart of the problem with society today - we are unable to understand, accept, and behave in a manner that teaches our children that while people may argue, and disagree, and fight, and battle in an arena, whether that is a courtroom or political chamber - there is another side of life. There are relationships that transcend our profession(s).

....

I mourn the loss of Officers Castillo and Haworth, regardless of the prosecutors and cops that may say I have no right to do so because I represent criminals and therefore somehow I'm part of the problem. I do not support crime, I don't support violence, and I don't feel better knowing two officers are dead. There are people out there though that can't understand that a criminal defense lawyer would feel this way. It's too bad no one can help them.

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

Macintosh and DHS share a birthday; one comes from Apple and the other's bananas.

Reigning Blawg Review of the Year award winner Kevin Thompson offers a strong contender for this year's award with Blawg Review #295 at his Cyberlaw Central blog this week. On the dual anniversary of the Apple Macintosh's glorious introduction and the Department of Homeland Security's somewhat more ignominious one, Thompson focuses Blawg Review's sights on technology, security, and cyberlaw issues. Highlights include posts discussing trading something for less-than-nothing, analyzing the FCC's conditions for the Comcast-NBC merger, and defining the "Flawg" for fun and profit. Jamison Koehler will host next week's Blawg Review #296 at his Koehler Law blog.

TGIS: Thank God It's Schadenfreude! (304)

This week's joy in the misfortune of others comes courtesy of The Telegraph (from Thursday, January 20; link good at time of posting):

John Button, father of the Formula One driver [Jenson Button], told police that he feared his Ferrari 550 had been swiped from where he parked it in the town of Alassio, on the Italian Riviera.

For more than 48 hours, between Saturday and Monday, police scoured the area for the £50,000 supercar.

But it slowly dawned on Mr Button, 65, a former rally cross driver, that in fact he had confused Alassio with a neighbouring town, Laigueglia, which has an almost identical layout and lies less than a mile along the coast.

He retraced his steps and sure enough, the Ferrari was parked just where he left it.

"It's all a bit embarrassing, but the roads that lead into Alassio and Laigueglia are almost identical, even the railings look the same, and they both have a fork in them," Mr Button told The Daily Telegraph yesterday.

[Previous TGIS]

A Round Tuit (53)

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

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

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

I'm a member of the Oregon Bar and, as a Registered In-House Counsel, of the California Bar as well (membership numbers 954014 and 800953, if you're keeping score at home). Every so often, one or the other will send me something other than a magazine I won't read or a flyer for a continuing education seminar I won't attend. Ballots for bar positions or rule changes get a meaningful glance, which puts these somewhere between Christmas cards and Publisher's Clearinghouse notifications on the mail review continuum.

When I started-out, I was far more diligent about considering the qualifications of those who sought elected positions within the bar's bureaucracy and the ramifications of the ethics and other rule changes proposed year after year. I suppose that I cared more back then. Many rule changes done from one year to another seem pointless and fussy, done primarily to demonstrate that the bar's leadership has accomplished anything other than organizing a golf-filled annual conference.

I was reminded this past week that at worst, those fussy rule changes can have potentially dramatic effects for many of the clients our profession serves. It's fair to say that the next time a bar ballot lands in my inbox, I'll make more of an effort to consider its real-world consequences. A member of two bars, I've had my eyes opened by a rule change in a third — Texas — and a few criminal defense attorneys there.

Paul Kennedy discussed the proposed rule change and its effect on the criminal defense bar and its less well-to-do clients:

[T]he State Bar has decided it's time to update the disciplinary rules - apparently for no better reason than they haven't been updated it a while.

Most of us in the criminal defense bar charge flat fees to represent clients charged with criminal offenses.

....

Some of the proposed changes are good - but some are very troubling to criminal defense attorneys.

Chief among these is proposed Rule Number 1.15. This rule lays out the obligations of an attorney who is holding property belonging to a client or another party. Section 1.15(d) reads as follows:

[a] lawyer shall deposit unearned fees and advanced expenses into client trust account, to be withdrawn by the lawyer only as fees are earned or expenses are incurred.

We don't bill by the hour. We bill for our service. A prospective client either agrees to pay our fee or they find someone else who will charge less. I charge a flat fee for DWI defense. While I have a good idea of what needs to be done on the case, I don't know going in how much time I'm going to have to spend working on it. How much discovery is there going to be? Witness interviews? Pretrial motions? It's not practical on a criminal case to call your client up and tell them they need to bring in more money because the case has gotten more complicated than you first estimated. Most of our clients don't have the money.

We are also bound by our ethical obligations to provide a vigorous defense. But what if a client can't ante up halfway through a case? It would put both the attorney and the client in untenable positions.The basis of a criminal representation is the relationship between the attorney and the client -- let financial issues get in the middle of that relationship and something's got to break.

That an entire segment of the profession — and a particularly vulnerable segment of the public — could be adversely-affected by this rule-making should give others in the bar reason to pause for careful reflection. Kennedy noted, however, that the Texas bar is in hard-sell mode:

[T]he State Bar is burning up the internet with e-mails from Bar officials telling us why the proposed changes are the equivalent of sliced bread. Every one of these e-mails attacks the voices that raise questions about the new rules. And while the State Bar is sparing no expense to entice lawyers across the state to vote for changes, nowhere on the State Bar's website is there any dissenting opinion.

Urging his fellow bar members — criminal defense counsel or no — to vote against the unearned fees rule change, Kennedy countered the bar's "nothing to see here" messaging:

In the commentary to the existing rules we learn that it can be difficult to determine what is or isn't a reasonable fee and that such a standard would be "too vague" to use in disciplinary procedures, but the new rule talks about fees that are "clearly excessive" and the commentary indicates that a reasonableness standard should be applied to determine if the fee arrangement violates the rules.

That, my friends, is a tremendous change and a scary one at that. Who determines what's reasonable? Will it be other criminal defense attorneys in the area? Will it be other criminal defense attorneys who handle a particular type of criminal case on a routine basis? Will it be attorneys from BigLaw who have no idea of what goes down in the criminal courts or what is involved in defending a person accused of committing a crime?

In the course of less than six years, how did we get to a point where a reasonableness standard isn't too vague anymore?

The State Bar attempts to answer concerns from criminal defense attorneys that the new rules will change the way attorneys have to handle flat fee arrangements (or if such arrangements are even allowed). According to the State Bar

The proposed rule does not change this law (and it could not) and puts criminal defense lawyers in no worse or better position than the current rule.

Well, if that's the case, why change the rule at all?

It's fortunate that social media offers a means for dissenting voices to counter the official line. In a series of posts, Mark Bennett explained in considerable and persuasive detail what's at stake in the Texas referendum. Noting that flat fees make sound economic sense for both clients and lawyers, he wrote that for many facing criminal charges, flat fees offer access for effective representation which they would not otherwise have:

It’s enough for me that the State Bar wants to do away with flat fees. Most people who have the money to pay me a flat fee, in which I accept the risk that litigation will drag on and the client accepts the risk that it won’t, could not possibly afford to deposit enough in trust to cover my hourly rate through every reasonably anticipable contingency of my representation. Forbidding criminal-defense lawyers charging flat fees would deprive many of effective representation.

Bennett discussed the disconnect between the state bar's aspirations for client mobility and the realities criminal defendants face:

For as long as there has been a criminal-defense bar in Texas, Texas lawyers have been charging flat fees in criminal cases and not placing them in trust, and not refunding any money if they are discharged before the case is complete. (Smart criminal-defense lawyers, when discharged, will sometimes refund reasonable portions of fees, but this is a matter of prudence and personal ethics rather than law.) Why the disconnect between what the State Bar wants the law to be, and the longstanding practice of thousands of highly ethical criminal-defense lawyers?

....

Where the parties agree that a fee is earned upon receipt, does the fact that it may be refundable make it unearned? No, of course not. Again, contract principles apply unless there is good reason to ignore them. There is, at least until the statute of limitations expires, the possibility that a fee will be refundable. That has nothing to do with whether it is earned or not.

....

Those in the State Bar who think that flat fees are unethical want people to be able to change lawyers; that’s a worthy aim, but if a defendant can’t afford to hire a lawyer in the first place, it doesn’t do him any good to be able to change lawyers—the defendant whose resources have been exhausted with the first lawyer can’t change lawyers freely. Neither, though, can the indigent defendant who has been appointed counsel, nor the client who has been tapped out by an hourly-fee lawyer. That defendants should be able to change lawyers at will is not a principle; it’s a nice goal, but there’s no reason it should control over the principle that the parties to a contract should be able to choose its terms, or the principle that private criminal-defense services should be accessible to more than only the very wealthy.

Digging a little more deeply into this disconnect, Bennett explained that the rule change is driven by a relatively-small group of non-practicing "experts" whose views have been rejected by the courts under the current rules:

What’s really going on here is this: a few opinionated non-practicing lawyers... think that a flat fee can’t be earned upon receipt. The rules don’t support this proposition, and neither does public policy, so they have never been able to get any traction for it in the courts. If they tried to amend the rules to explicitly say so, 10,000 criminal-defense lawyers would be up in arms; they probably won’t even get it on the referendum ballot. So they tweak the rule a little bit to shift the focus from “property belonging to the client” to “unearned fees.”

If the rules, the law, and public policy don’t support the proposition, why do these non-practicing lawyers think flat fees can’t be earned upon receipt? I suspect it’s because in their worldview lawyers sell their time, punching clocks and justifying their value to the client in 6-minute increments. In such a world, it’s easy to tell what has been earned and what hasn’t. By making the trust rule “unearned fees” they try to squeeze us all into thinking like wage slaves.

Murray Newman, a former prosecutor, addressed those who are still in prosecutors' offices around the state:

If you are anything like I was when I was a prosecutor, you are more than likely asking yourself "why the hell would I care about a bunch of rules that only pertain to lawyers in private practice"?

The simple answer is because sometimes you might end up in private practice. Even if right now you are pretty sure you are going to be a Prosecutor for Life.

Now, the rules that concern me aren't the ones prohibiting sexual contact with clients. If a lawyer is stupid enough to enter into a romantic relationship with a client or (God forbid) take sex as a payment for services, then that lawyer has got more freaking problems than the State Bar can regulate.

The ones that concern me are the others, which, if implemented would basically collapse private practice as we know it. If you are hoping to someday come into private practice, the Regulations that the State Bar's referendum is currently trying to pass will make it more complicated and more restrictive.

And trust me, starting a new law practice is already complicated as it is.

From New York, Scott Greenfield added his thoughts to those of his Texas brethren and his support to their efforts:

The nature of criminal defense has always been different than others practice areas. Our clients are different. Their situation is different. We, the lawyers who defend them, are different. Rules that work fine for other niches don't work at all.

The basic notion is that in the normal course of affairs, we either get paid up front or don't get paid at all. The latter might be okay with some, who aren't deeply concerned with lawyers getting paid, but they ignore the consequences. If criminal defense lawyers don't get paid, then no lawyer who like to eat will be able to sustain a practice as a criminal defense lawyer. Whether we all run off to do real estate, or wills, or mergers and acquisitions (because their fees make complete sense) doesn't matter. We won't do criminal defense, no matter how much we want to. Our kids still need shoes on their feet. That's life.

....

No decent criminal defense lawyer can live with himself if he's not doing right by his client. We fight because it's a fight that needs to be made. We compromise because it's in the client's best interest. We can do this because money isn't in issue; we are not in a conflict with our client. This will change.

Just at the moment in their life when they need us most, legal fees will prove an impenetrable divide between lawyer and client. They owe it and they don't have it. We are forced to choose whether to work for free or hurt a client. This is an untenable situation. This situation cannot happen without undermining our purpose for being lawyers. Worse still, they don't necessarily mean to stiff us on the fee, yet you can't get blood from a rock. The lawyer gets screwed and has to eat the loss.

With that as a future, who would want to practice criminal defense? Who could afford to do so? Without flat fees, there could be no viable private criminal defense bar, unless the lawyer happened to be heir to so vast a fortune that he never needed to make another dollar. How many guys like that are around?

While the theoretical underpinnings of flat fees, such as the right to contract freely which would be available to everyone other than criminal defense lawyers, are worth arguing, there remains a fundamental point that can't be ignored. Without flat fees, there can be no private criminal defense bar. Except for that one rich guy who does it for kicks.

Floridian Brian Tannebaum gave a nod to Greenfield's mention of a "right to contract freely" but wrote that the reality is far from that ideal:

We have the right to do what our State Bar says we can do, because as I've said before, State Bars exist today for the sole purpose of protecting the public from lawyers. "Pay your dues, and keep the clients perfectly happy" is their mantra. While one Bar prosecutor once told me "there are two types of complaints, complaints against lawyers, and complaints against criminal defense lawyers," more and more the civil lawyers who Scott refers to as "Bar types," show their lack of love for us.

....

The Texas Bar's focus on the criminal defense lawyer's "flat fee," is disgraceful. But it is symptomatic of what Scott Greenfield refers to as the "Bar types" that mill around state bar committees when they are not in their offices waiting for someone to bring them coffee in embossed ceramic cups (with a saucer Goddammit, and now).

And so Mark, I have some bad news for you. Your criminal defense colleagues may vote against this and all the new proposals. More likely, they will remember after the deadline that the ballot went in to the garbage, and they didn't have time to vote because they were "in trial." You are screaming from the rooftops, maybe others are joining you, but the masses won't pay attention until they receive a letter a year from now from the Texas Bar about their non-refundable $2,000.00 fee.

I am a Bar-type. I mill around those Bar committees in my khakis and blue shirts (no-tie) while the masses of civil lawyers in suits with briefcases tagged with their initials in gold who "tolerate" us, cast us off as part of the problem in the profession - disregarding that their precious billable hour is the definition of fraud. I am a Bar-type, I pay my own way to meeting after meeting, speaking up when I hear our criminal defense bar malinged, and constantly trying to convince my colleagues there is a good answer to "why do you go to all these meetings?" They all think I'm doing it for my resume, or some judicial aspiration, and are still wondering why after 16 years, neither has been true.

Until the criminal defense bar infiltrates state bars, gets on every committee, and participates at the same table as the manicured civil bar, we will continue to beg for our constitutionally mandated existence.

Good luck Mark, and good luck my brothers and sisters in the Texas Criminal Defense Bar. May the rights of clients to be guaranteed a flat fee and not be nickel and dimed for every .2 conversation, or charged for when we are "thinking about the case" throughout the representation, be protected.

We hear a lot of talk from our state bars about donating our time and money toward ensuring that all have "access to justice". This week's referendum in Texas should remind us that, in the context of criminal law, this means that a defendant's ability to pay should not determine whether he or she will be able to secure effective defense representation. The Texas Bar and its clutch of non-practicing ethics consultants should be reminded that that cause is ill-served by rule-making which undermines the economic sustainability of defense bar or forces more people into underfunded public defense programs by sapping their capacity to pay for services other than hourly.

For most, this past Monday's commemoration of Dr. Martin Luther King, Jr. Day was a welcome holiday; for many, it was a "day on" rather than a day off; for some, it was a day of particular meaning celebrating the life and work of a singularly remarkable man. The legal blogosphere offered many examples of this last group, including Gideon's Blawg Review #294. Amongst the many King-themed links Gideon collected was a curious one wherein the Defense Department's general counsel argued that, were he alive today, Dr. King would support the war effort. Gideon found it laughable to suggest that the famously non-violent and anti-war King would've come around to the DoD's way of thinking. Jesse Walker, who discussed the comments in Reason wrote:

Now, I suppose it is theoretically possible that if Martin Luther King were alive today he would support Washington's wars, in the same sense that it is theoretically possible that Ronald Reagan would be a celebrity spokesman for the Workers World Party. People change! It could happen! Maybe he'd have a personality-changing concussion or something! And hey, Reagan probably told a parable at some point that a socialist could use for his own ends...

Come on, people. You want to argue for the merits of a war, either argue forthrightly against King's clear views on the subject or have the good taste to leave him out of the discussion altogether.

In the limited reading I've done on the Civil Rights movement, I've always been impressed with Dr. King's adherence to a policy of nonviolent civil disobedience, both despite the violence perpetrated against his followers and despite the alternative courses favored by other leaders. Jon Katz noted and celebrated King's nonviolence:

In overcoming violence, we have a very long way to go. Let us make the first step and the next step today on the non-violent path.

Happy birthday, Martin Luther King, Jr., and thanks many time over.

Scott Greenfield discussed the dual themes of equality and freedom in Dr. King's "I Have a Dream" speech and urged us to honor the great man's memory by fighting for both:

Rather than view equality and freedom as competing values, this suggests that they were both necessary aspects of each other, that one without the other necessarily failed to be realized.

I suspect that Martin saw equality as an artificial roadblock on the path to freedom, constructed by some foolish and troubled people who needed to come to grips with their own limitations and challenges before they could recognize the impropriety of accepting others as human beings and fully equal in all respects. I suspect he believe that equality, though not easily achieved, would eventually be realized. And then, I suspect, he believe that equality would put those who suffered discrimination on the road to achieving freedom.

....

Martin would never bargain away freedom to achieve equality. He knew that the latter without the former was a hollow victory, and that the true purpose of equality is to attain freedom. Yet those who follow in Martin Luther King, Jr.'s intellectual footsteps today are fully prepared, if not chomping at the bit, to give up freedom for equality. It's become a flagrant battleground with freedom of speech, a great right provided no one's feelings get hurt in the process, in which case it gets tossed out the window in a flash.

It's much easier to argue for equality at the expense of freedom. It's a big, shiny bargaining chip, making every potential trade very attractive. It may well offer the clearest, fastest path to equality. But it's a deal with the devil. Give away freedom and your equality has lost some meaning. Give away more freedom and equality is rendered worthless. So what if we're all equal, and all miserable, and all equally subservient to ordered?

Martin wouldn't have bargained away freedom. Who are you to advocate doing so? Equality must be achieved, but never at the expense of freedom, as it's freedom that makes equality so worthwhile a goal.

Mirriam Seddiq recognized King as someone who undeniably mattered to his contemporaries and to those of us in the generations after his; she wrote that we should all aspire to matter and be diligent in working for social justice:

When you fight you know there will be blows that land in tender spots and you will be achy and bruised even if you are ultimately victorious. That hose the police turned on you hurts like a motherfucker and that dog is trained to bite. And yet the people in Montgomery and Atlanta and Norfolk and Baltimore stood there and they took those hoses and those dog bites. And they got up and did it again. Over and over and over. Despite being mistreated, beaten and arrested. They fought through the fear and the pain. Through the sweaty palms and sour stomach. Nelson Mandela said "courage is not the absence of fear, but the triumph over it. The brave man is not he who does not feel afraid, but he who conquers that fear." ( Now, which one of you is going to call Nelson Mandela a wuss?) They fought through the nay-sayers and the powers- that -be that told them to just wait, be patient, in due course, justice will be yours.

....

It's been years since I've taken to the streets for a cause. I can't even remember what it was for. And, it is only recently that I've found the fortitude to speak up (in my mousy little voice) against the injustices that we face on a daily basis. We write blogs and decry the awesome power of the state but without a unified force we are nothing more than armies of one. I sit in my little office in Takoma Park while another sits in his office in Connecticut, or California, or Ohio. All of us sing the same song but we are certainly not a choir, more like a cacaphony, with no voice or sound distinct enough to stand out and rise above the rest. There is no pretty faced, charismatic leader to give us courage in our fight. There is no one to compare to Jesus or Thomas Jefferson. There is just me. And you.

And I don't matter.

Do you?

King is an American hero; not an icon only of the political left, or of ethnic minorities, or of the anti-establishment. In the midst of a particularly divisive period in our recent political history, Dan McLaughlin reminded us that King's example is for us all:

There are three men in American history distinguished enough that they have been honored with a national holiday - George Washington, Abraham Lincoln, and Martin Luther King jr. - but only Dr. King has been honored solely for his time as a private citizen, having never held public office or military commission.

Unsurprisingly, to be so honored, all three men hold lessons for conservatives and liberals alike. All were in some sense revolutionary figures, unwilling to sit quietly on the status quo for the sake of comity and going along to get along, even at the sake of personal danger and the making of many enemies. Washington took up arms against his own government, and forged a new nation unlike any that had come before. Lincoln led a new, sometimes hard-edged political party that challenged a deeply embedded evil afoot in the nation, never backing down from his anti-slavery convictions even when accused of fomenting violence by anti-slavery radicals, nor when half the country took up arms in rebellion rather than accept his election. And Dr. King challenged, with stubborn persistence, the equally entrenched legacy of slavery in the form of Jim Crow laws. Yet by the same token, none of the three was a radical. Washington, like others of his generation, saw himself not as author of a new order but the protector of an Englishman's traditional liberties against novel encroachments such as new and unjust taxes. Lincoln, for all his hatred of slavery, was initially willing to accept the pragmatic half-measure of stopping its spread, and only came to the drastic step of emancipation in the midst of a horrible war. And Dr. King eschewed the call to arms of the African-American radicals of his day, pushing for reform through the system and calling on his fellow Americans not to reject their heritage but to live up to the promises of America's founding documents and answer to their Christian consciences.

He was a remarkable man, one whom we honor not for military victories but for nonviolence, not for political achievements but for moral ones. He made us better despite ourselves. For that we remember him and are reminded of the debt we owe him.

Mike Masnick has been a diligent and effective critic of the U.S. Immigration and Customs Enforcement's domain name seizure campaign. This past week, the head of ICE, John Morton, attempted to reassure the public that his agency's actions were not meant to chill free speech; Masnick explains that ICE (and its partners in the corporate world) have done just that, for questionable reasons and sidestepping existing legal protections in the process:

There are existing laws that allow the government or private parties to file a lawsuit against anyone accused of breaking the law, and allowing (as per our normal due process system) an adversarial hearing to be had in court so that both sides get their say. What Morton and his team did ignores all of that. It ignored due process. It seized sites that had substantial non-infringing content, it used serious technical and legal errors to get a judge to rubber stamp seizures of domain names that were widely used by the music industry to promote their own works. And he addresses none of that.

Finally, he claims that the domain seizures were really effective because a bunch of other websites shut down in the wake of the seizures. This is kind of funny because of how naive it makes Morton and ICE appear. Yes, some websites that knew they would be equally easy for Homeland Security to seize without due process or respect for the First Amdenment switched to other URLs outside of US control, but it's pretty naive to think that those operating the sites simply stopped doing so.

No one has yet come up with a reasonable explanation why suing these sites first was not possible. Why did they need to be seized? The only explanation given so far was that some third party might get ahold of them and use them for nefarious purposes, but we already explained how that makes no sense. A judge could easily have issued an injunction barring the sale of the domain names while a lawsuit was ongoing. It's troubling that the best John Morton can do is to simply make stuff up to support a campaign of censorship on behalf of the entertainment industry (who was such a close partner that the initial part of this campaign was announced from Disney's headquarters). We should be quite concerned when law enforcement officials are taking orders from companies, and the best defense they can come up with to support these actions is to lie and pretend that there were no other legal means that do not violate free speech or due process.

Though he doesn't defend the effectiveness of the domain name seizures, Terry Hart argues that the ICE's actions do not violate the First Amendment:

In this case, we’re talking here about whether the seizure — the initial taking of the property into governmental custody to initiate forfeiture proceedings — is an impermissible prior restraint. Whether the ultimate forfeiture of these domain names violates the First Amendment is a completely separate question....

The argument that these domain name seizures violate the First Amendment comes down to timing: does the First Amendment require a hearing before the domain name is seized, or are the procedures available after a seizure occurs — the Rule 41(g) motion, the actual forfeiture proceedings, etc — adequate?

The answer to that question is actually not an easy one to answer. As far as I know, no court has heard a First Amendment challenge to the seizure of a domain name as property used in the facilitation of a crime in order to be forfeited.

As I see it, we’re actually dealing with three separate questions here.

1. Are the domain names that have been seized considered “expressive content” such that a higher bar than seizure of ordinary property is required?
2. Are the seizures predicated on presumptively protected speech — the allegedly infringing works disseminated on the sites — so that, in effect, they are akin to seizing expressive content and thus require the same higher bar?
3. Is there a high enough burden caused by the seizures on the other expressive content on these web sites — message boards, blog posts, etc — making these seizures an impermissible prior restraint?

Hart explained why all three should be answered in the negative.

Rick Horowitz discussed freedom this past week, albeit of the Second rather than First Amendment variety, writing that in the wake of the shootings in Tucson, calls to limit freedoms in the name of security should be regarded with greater rather than lesser skepticism:

Freedom is a dangerous thing. Ask any fascistic despotic ruler. Free people tend to follow their own predilections; they tend to do what they want with their lives. Those who wish more control over the lives of others cannot tolerate this.

But as recent events in Tucson, Arizona have shown us, freedom has other consequences, as well. So it’s not just those who desire to impose their own will on others who are questioning freedom.

The thing about free people is, as I said, they do things they want. If they happen to want to say something, for example, critical of the government, and to encourage change, they will. If they happen to be people who want not to procreate, they will try to avoid that. If they happen to begin the process of procreation unwillingly, they will try to stop it prematurely. If they want to own guns, for whatever reason, they will. They might argue that the government should, for the most part, leave them alone. They may tend to believe that government, in fact, should only have so much power, and no more. They may recognize government as “a necessary evil.” Or they may not feel the government is evil, but that it could become evil if unchecked.

To the historian and people who know how to read, there is every bit of evidence that our Founders held beliefs like those outlined above, that free people might tend to hold.

But, as I said, freedom can be dangerous.

If you happen to think that people should not be able to control their own bodies — you might even say, “at least under certain conditions,” or “sometimes” — then you will not like people trying to exercise freedom over their own selves. If you happen to think that people should not criticize the government, at least in some of the time, you will be upset about those who do. If you are stupid enough, you might even believe that guns are capable of killing people all by themselves and therefore no one — not even intelligent, thinking, friendly people who would never shoot at anyone else — should own a gun. And, of course, you will think that government shouldn’t leave people alone. Particularly if they want to own guns.

Erich Veith noted that the government's efforts in curtailing freedom have become decoupled from its interests in punishing criminal conduct or maintaining national security, as evidenced by the increasing trend toward confiscations and searches of personal data without even suspicion of wrongdoing, let alone probable cause:

The sad bottom line is that there is no political momentum to condemn and bar this practice, even in the context of ubiquitous rhetoric regarding the need to limit the power of the federal government.

It seems odd to suggest that a free nation could properly be a nation of criminals, but it seems that in the government's current view only criminals resist the authority of the state. Criminals we all are, then — or should be.

This week, we honored a champion of our civil rights for his conscientious civil disobedience. I hope that our disobedience will be non-violent, but my greater hope is that our resistance will be effective. We should remember that in marching for civil rights, nonviolence was an effective means to an end, but not the end in itself. Frankly, some credit is due to those then in power for yielding, rather than obliging their people to choose other means. No legitimate government would require the American people to opt for violence to secure their Constitutional rights.

Though it may be progress of a sort to find that a few decades after Dr. King's death, the government controls and oppresses its people by playing on our fears of terrorism and drug violence rather than our racial prejudices, I suspect that King would tell us we still have a ways to go.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Carny Life, Wikimedia.org, and Paris Odds n Ends Thrift Store.

Collectively We Enjoy a Waking Dream

Gideon hosts, as he often has, a Dr. Martin Luther King, Jr. Day edition of Blawg Review this week at his A Public Defender blog. Gideon's written in past years of the lessons he's drawn from Dr. King's words and efforts and Blawg Review #294 is a worthy addition to his remarkable series of annual posts. Highlights of this edition include posts concerning the price and value of freedom, the right and wrong meanings drawn from King's words, and the real-world consequences of poorly-considered state bar rule changes. Kevin Thompson, a former Blawg Review of the Year honoree, will host next week's Blawg Review #295 at his Cyberlaw Central blog.

TGIS: Thank God It's Schadenfreude! (303)... The Sequel!

This week's bonus joy in the misfortune of others comes courtesy of Reuters (from Thursday, January 13; link good at time of posting):

Two would-be thieves called in their own crime to police in Germany after they could not escape from a broken-down elevator over the weekend, police said in a statement.

"This sounds really dumb," one of the thieves told police in Cologne over the elevator's emergency phone, "But I'm afraid that we wanted to break in and the elevator has gotten stuck."

....

They decided to phone for help when one thief injured his hand attempting to pry open the door.

Firemen eventually freed the men and they were arrested.

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (303)

This week's joy in the misfortune of others comes courtesy of The Telegraph (from Saturday, January 8; link good at time of posting):

The North Korean government's official Twitter account appears to have been hacked, with the feed calling for an uprising to remove the leaders from power.

The microblogging site ranted to its 11,000 followers about huge spending on nuclear weapons and leader Kim Jong-il's lavish drinking parties "while 3 million people are starving and freezing to death."

....

The tweets, in Korean, were unlikely to harm the internal image of the country, as internet access is widely prohibited.

However, the hacking will come as an embarrassment to the regime – especially as Saturday was thought to be the birthday of Kim Jong Un, the man believed to be poised to take over.

....

One tweet from @Uriminzok on Saturday read: "Let's create a new world by rooting out our people's sworn enemy Kim Jong Il and his son Kim Jong Un!"

Though it remains uncertain who coordinated the breach, South Korean citizen media sites and the Yonhap news agency attributed the scheme to South Korean hackers.

[Previous TGIS]

A Round Tuit (52)

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.

At times, the sounds of sirens in Tucson, Arizona this past Saturday were all but drowned-out by the noise generated by cable news commentary, partisan bickering, and angry recriminations from all quarters. The facts of the shootings of Congresswoman Gabrielle Giffords and others, to the extent those facts are yet known, need not be summarized here.

In the hours and days since the tragic event, many in the legal blogosphere have taken time to comment on various aspects of the debate and to weigh-in on the forthcoming criminal trial of the accused, Jared Loughner. Though I'll not try to gather a comprehensive, or even representative, collection of those posts, I'll offer a few here which (for me at least) stood-out amongst the chatter.

Killed in the attack on Representative Giffords was Federal Judge John Roll, the chief judge of the District of Arizona. In a pair of posts from Ashby Jones (see here and here), other Federal judges remembered a man reputed as "a conservative and even-handed jurist" who was "always fair-minded and absolutely attentive to everyone who appeared in his courtroom." Somewhat jarringly, they also demonstrated that it's never too soon after a judge is murdered to begin publicly fretting about the hassles involved in redistributing his caseload.

Several people distinguished themselves with quick-thinking and decisive actions to subdue the gunman, bringing the horrible incident to a close before there was further loss of life. Eric Turkewitz noted those heroes' names and added another — Loughner's new defense lawyer (and former Unabomber defense lawyer) Judy Clarke:

Why celebrate the defense lawyer? Because here is a person that will:

• Represent a hated individual;
• Receive death threats from other wackos out there;
• Be outgunned by the Department of Justice;
• And move from a private practice in Southern California to Arizona in order to do it, and do it for public dollars as opposed to more lucrative private ones.

In other words, she and her team will voluntarily take on one of the crappiest jobs in America, and do so at great personal risk. Whatever personal risk may usually exist for the criminal defense bar — and it surely does for many who represent some tough characters with even tougher frenemies — it will likely be magnified a zillion-fold in a case like this.

....

And since my personal definition of a hero is a person that sacrifices safety or comfort and goes to a place of danger, and does so for the benefit of others, then these defense lawyers will fit that bill.

A couple of legal bloggers commended John Green, the father of murdered nine-years-old Christina Green, for his measured and inspiring comments in the wake of his child's death; in speaking with media, Green said:

This shouldn’t happen in this country, or anywhere else, but in a free society, we’re going to be subject to people like this. I prefer this to the alternative.

Radley Balko wrote that Green "gets it":

After all the partisan, self-serving, asinine commentary of the last two days . . . bless John Green. What remarkable perspective, composure, and clear-thinking in the face of a grief that few of us can imagine.

....

It’s enough to restore one’s faith in humanity.

At the Popehat blog, Ken wrote of Green and his wife Roxanna:

In their shoes, I would be railing against guns, against mental health laws, against politicians, against God, against anyone I could blame in any way, whatever my closely held beliefs before the tragedy. But John Green is a better man.

There was only so much one could say about the human costs of this tragedy and much of the discussion this week necessarily concerned policies rather than people. To their discredit, many commentators on the left side of the political spectrum were quick to pin some measure of blame for the Tucson shootings on former Vice-Presidential candidate Sarah Palin, whose website had "targeted" Giffords' district during the election cycle. Elie Mystal was just as quick to dismiss such criticisms, laying sole blame for Loughner's acts on Loughner himself. Notwithstanding, Mystal suggested tightening gun laws in Arizona and across the country, and even considering repealing the Second Amendment, to prevent easy access to firearms for "unstable lunatics" like Loughner, or indeed anyone else:

So I’m going to say something that I haven’t heard for a long time, even from the left: maybe the Second Amendment is wrong. Maybe it hasn’t “lived,” and maybe it doesn’t need to be interpreted differently given our modern sensibilities. Maybe it’s just straight-out wrong. The Founders got a lot of things right, but maybe the whole “well-armed militia” thing was an overreaction to the bloody war for independence they had all just fought. Maybe a citizenry with easy access to firearms does more harm than good to our political discourse.

Heck, it wouldn’t be the first thing that the Constitution got wrong. Trying asking a woman or a black person whether or not that document was perfect when it was first ratified. Or hell, just ask anybody who likes voting for their United States Senator if the Founders worked out all the kinks on their first try.

If we can’t live in a world where we have a Second Amendment and the ability to stop people like Jared Loughner from getting his hands on a firearm, then maybe we need to live in a world without the Second Amendment. I’ll take my chances with federal government rolling tanks into my neighborhood without having a well-armed militia to save me. In exchange, I’d just like to live in a world where I could go to a supermarket or a school or a political rally without fear that somebody is going to shoot up the place with weapons they legally obtained thanks to a right that made sense to people in the 1700s.

Mike Sacks considered the consequences of Mystal's provacative suggestions and concluded that, in the very unlikely event that these were advanced as legislative changes or a Constitutional amendment, the effects would be disastrously counterproductive to the gun control cause:

Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it. But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.

And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”

In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment. In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.

I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass. As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.

For Brian Tannebaum, the weekend was "of the First (not Second) Amendment"; he wrote that the embarrassingly-misguided and appalling chatter of the cable news anchors, media talking heads, and assorted self-promoters was evidence of the strength of the First Amendment:

I saw little restraint. Actually, I saw one instance of restraint. FOX's Shepard Smith was hesitant to announce the name of a member of Congresswoman Gifford's staff because he wasn't assured the family knew of his death.

Reporters and anchors have become creative in violating ethics at every instance in the race to be first. Over and over again we hear speculation in the form of non-speculation - "we have no evidence that this is terrorism." Ok, so why mention it? Because "terrorism" attracts viewers. Journalists guess how investigations will proceed, bring on psychiatrists to "evaluate" the suspect, and of course, bring on lawyers to discuss how "they" would handle the case from their TV studio stool.

All of this is ok. That's my point. This weekend was not about the Second Amendment.

....

I was embarrassed this weekend. I think some people in the media were as well, but their voices are being drowned out by talk of whether this is the fault of one person or another. The media has a way of moving on from mistakes, especially in these days of blaming others for your lack of ethics.

If anyone questioned the strength of the First Amendment, you saw it this weekend.

Brian Cuban suggested, however, that public tolerance for broad First Amendment protections — for others' speech, mind you — was ebbing in the present climate:

Outside of courtrooms and far away from 1st Amendment legal briefs, a post 9-11 and Nidal Malik Hasan society is becoming more thin skinned to veiled written threats that may have one time never made it to a jury but now are taken seriously and result in convictions even though there is no real imminent threat to the intended recipient or even to a general class of individuals. Prosecutors are getting convictions on web rants and internet threats in which ranters are left to wonder what went wrong while they do prison time and their appeal winds its way through the court thinking they had followed the “can’t touch me” 1st Amendment blueprint. As society becomes more fearful and tired of such internet vitriol the 1st Amendment becomes less of a Kryptonite shield and such arguments to a jury are more likely to fall of deaf ears. Times are changing. The 1st Amendment and the societal concept of “free speech” is changing with them.

For now at least, the First Amendment remains in relatively good shape. Eugene Volokh explained that, though the details of these plans are spare at this point, many of the speech restrictions discussed by legislators in the immediate aftermath of the shootings would run afoul of current Constitutional law's "true threats" requirements. Nonetheless, he wrote that an angry Congress intent on "doing something" might find a Constitutional way to do so:

The one way Congress could broaden the ban on threats against Congressmen to match the ban on threats against the President is to cover all true threats, and not just true threats “transmit[ted] in interstate or foreign commerce.” The “commerce” requirement is not hard to satisfy — communications that are routed through computers in other states, for instance, would suffice — but it sometimes won’t be satisfied, for instance when they are made face-to-face or even in a purely intrastate telephone call. But all the supposedly threatening/inciting/menacing/violent/etc. speech that I’ve heard faulted in the Arizona incident went out across state lines. And I know of no evidence that purely intrastate threats against federal legislators are somehow a serious problem that is being inadequately dealt with under state law.

Like many, I'm bothered by any calls — particularly in the days following a tragedy like this — to mandate more civil political discourse. Such restrictions diminish us and serve only those already in power. At times, I find myself at a loss for words to express my opposition to laws which mandate a loss of words. Thankfully, others are not so tongue-tied. Though he's not a legal blogger, because it so perfectly expresses what I can't, I'll highlight something Slate columnist Jack Shafer wrote this week:

Any call to cool "inflammatory" speech is a call to police all speech, and I can't think of anybody in government, politics, business, or the press that I would trust with that power. As Jonathan Rauch wrote brilliantly in Harper's in 1995, "The vocabulary of hate is potentially as rich as your dictionary, and all you do by banning language used by cretins is to let them decide what the rest of us may say." Rauch added, "Trap the racists and anti-Semites, and you lay a trap for me too. Hunt for them with eradication in your mind, and you have brought dissent itself within your sights."

Our spirited political discourse, complete with name-calling, vilification—and, yes, violent imagery—is a good thing. Better that angry people unload their fury in public than let it fester and turn septic in private. The wicked direction the American debate often takes is not a sign of danger but of freedom. And I'll punch out the lights of anybody who tries to take it away from me.

Discussing his frustrations with the injustices of the justice system, Rick Horowitz has occasionally written of the possibility that a "revolution" will be needed to correct this broken system and renew our society; after the events of this past weekend, he took pains to explain his position:

I am, believe it or not, a sane person. I do not want people to die.

I say this because I’ve written — and said — some provocative and even vitriolic things. Some people will consider a bit of what I say here, today, to be provocative, as well. People who either never read any other article of mine but this one will think, because I’m going to explain something rather than spit out a soundbite, that I’m in favor of violence in response to abuses by our government against its own people.

That is not true. Or maybe I have to be intellectually honest and say that I do not believe it is true, or that it is not quite true, or something along those lines.

I’ve written about that at greater length before, so I won’t go into it all again.

You see, right now, at this point in time, I absolutely do not favor violence in response to abuses by our government against its own people.

But I do believe it is sometimes a necessary response.

....

What a lot of people want — what I want — is to see the Constitution — not changed, and not just read, but followed. I want a government that recognizes that the ideals delineated in the Constitution have allowed this Nation — once-great — to survive for two-and-one-quarter centuries now. The recent reading of the Constitution by Congress is a good start. Reading the Constitution is something we should all do.

Often.

One of the things you’ll learn if you read the Constitution is that the government is supposed to have certain limited powers.

....

Right now, in the United States of America, our government has become overgrown…and overblown. This does not ensure domestic Tranquility; it sows domestic Discord. It certainly does not provide us with increasing Liberty.

We cannot ignore this.

Scott Greenfield also wrote that efforts to calm political speech are misguided:

One idea being floated is to create new federal crimes for threatening elected officials. From a security standpoint, this would facilitate protection by giving law enforcement a tool to pinch a potential attacker before the notion of an actual attack is even a twinkle in his eyes. But then again, rhetoric being what it is, much is said and written for impact, to make a point, to emphasize a belief and position, using words that might suggest a more radical approach in the real world when its purpose and intention is merely to persuade and inspire the slugs who occupy the easy chairs to get off their duff.

But the potential new federal crime of Hyperbole in the First Degree serves less to identify those who might actually do harm than to stifle expression at the core of democracy. Words are necessary to convey messages, and they are often messy and over the top. It's not to say that inflammatory or vitriolic rhetoric is a joy of political expression, but that criminalizing it would be the death of political dissent.

We might end up with nicer, calmer politics, but at the expense of honest dissent. The use of subtle, nuanced discussion to make our positions clear, unfortunately, ended when William F. Buckley's Firing Line was canceled. Heck, he would have been forced to change the title of his show, given how it incites violence.

Instead of speech restrictions, Greenfield suggested an alternative likely to do more good, perhaps less dramatically but with less destruction to our already-strained civic fabric:

[T]he solution to stopping this violence isn't in criminalizing the world of the rest of us, or undermined basic tenets of democracy. How about identifying those with mental illness and providing them treatment? How about making sure that people whose minds struggle to function in a nonviolent way, who see harm as a viable means of expression, receive the care they desperately need?

Of course, it's hardly as bold a reaction to a terrible tragedy than, say, establishing a new congressional protection service, or passing a slew of laws criminalizing the use of words that could be misinterpreted to suggest radical change. But it might help to address the cause of the problem, and actually do some good in the process.

....

If we need to have a knee-jerk reaction to this tragedy, would it be so terrible to have one that actually did some good for people?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment seems like such a lovely idea. How is it that such a succinct, eloquent statement of personal rights has become so consumed by exceptions as to lose its meaning? Fewer than six dozen words and there's hardly a one that the police and courts can stomach.

The latest indignity came this past week when the California Supreme Court decided People v. Diaz. Diaz was arrested after selling Ecstasy to a police informant; his mobile phone was taken from him upon his arrest. Though the phone was no longer in Diaz' possession, meaning that he could no longer delete or alter any evidence contained in its memory, and no circumstances existed which prevented a warrant application from being sought, police searched the data contents of Diaz' phone without a warrant. Bending over backwards to justify the police's actions, the California court built upon earlier Fourth Amendment exceptions to establish a new one — until further notice, any data accessible on one's mobile phone is subject to warrantless search incident to arrest. Jacqui Cheng explained the result:

The court said that the phone was "immediately associated" with Diaz's person, and therefore the warrantless search was valid.

The decision was not unanimous, though. "The potential intrusion on informational privacy involved in a police search of a person‟s mobile phone, smartphone or handheld computer is unique among searches of an arrestee's person and effects," Justices Kathryn Mickle Werdegar and Carlos Moreno wrote in dissent.

They went on to argue that the court majority's opinion would allow police "carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."

Mike Masnick noted that bootstrapping this new exception onto older ones — such as those involving the contents of pockets in clothing or cigarette packages carried by arrestees — makes little sense, considering both the nature and extent of personal data contained on (and accessible through) modern smartphones:

The judges' argument is based on the idea that current case law allows police to seize and examine anything they find on you -- such as your clothing or a cigarette package. Even if you accept that this is reasonable, to extend that to the contents of a mobile phone seems to be going too far. Similar to our concerns about border patrol being able to snoop through your laptop, accessing the contents of your mobile phone involves access to all sorts of private information. The issue is that the caselaw that the court used to make this ruling was based on stuff you actually chose to carry with you specifically. But, these days, with a smartphone that has access to the internet, and is basically a mini-computer, it's not like you specifically select which emails/browsing history/etc. to "take with you" when you go out. So assuming those things are fair game makes little sense. Indeed, a couple of judges on the panel dissented, noting how mobile phones were quite different.

Sharon Nelson was one of very few bloggers I found who expressed no concerns about the ruling. She seemed to accept that this new exception flowed naturally from earlier "incident to arrest" exceptions; indeed, she suggested that much of the widespread commentary was prompted by incomplete reporting of the decision:

The story got a lot of play, largely because many media sources failed to include the fact of the arrest in their headlines so the viral tidal wave that followed was often based on a misconception that any kind of warrantless cell phone searches by police were permitted.

....

One of the exceptions to the Fourth Amendment is a search incident to an arrest, where the search looks for weapons, means of escape or evidence of a crime. Law enforcement is permitted to search an arrestee's person as well as the area within the arrestee's immediate control. And yes, there is precedent that these searches can take place substantially after the arrest.

Scott Greenfield attempted to pull us back up the slippery slope a bit, to better understand how, exception built upon exception, we managed to make our way from the Fourth Amendment as written to a state of affairs wherein the vast amount of data on our smartphones is now subject to warrantless searches:

This is another instance of following the rubric while forgetting the rationale, the judicial road to perdition. Searching the contents of a pack of smokes as a search incident to arrest is justified under the notion that it could contain a weapon, such as a razor, or physical contraband, such as marijuana or cocaine, neither of which would do well to remain in the defendant's possession after arrest, nor returned to a defendant subsequently. It's not the firmest rationale around, but not entirely nonsensical. It's at least the natural offshoot of container searches.

Of course, container searches, as part of a search incident, are a slide down the slippery slope, as a seized defendant, once separated from any container that might hold a weapon or contraband, no longer has access to it for use against a police officer. At that point, there is nothing to prevent police from obtaining a warrant at their leisure to search anything they have cause to search.

Container searches are nothing more than a shortcut to ease the burden of requiring a warrant. This is justified under the "easy button" clause of the 4th Amendment, a little appreciated, invisible portion of the text that says "no officer shall be required to obtain a warrant from a neutral magistrate when we all think it would be easier to just let them search what they want, knowing that they're going to do it anyway."

....

[T]he appropriate reaction to this plaintive post is that the rationale behind container searches, finding physical items before harm is done, doesn't apply to a device that can only contain digital evidence, and that the California Supreme Court's decision is a wrong application of the tech neutral doctrine. Had the court applied the doctrine properly, it could be argued, by returning to the rationale for container searches rather than knee-jerk employing the rubric that "containers = exception to warrant clause," we wouldn't be in this pickle.

While the point has some merit, it fails in light of legal experience. We start with The Rule, contained in the visible words of the Fourth Amendment. From there, a judicial eternity is spent chipping, chipping, chipping away at the rule, crafting exceptions to prevent the rule from applying in individual circumstances. Each time an exception is crafted, it's grafted onto the rule in the form of a rubric.

Courts love rubrics. They make for easy application, shorter opinions and a firm launching pad for the next extension of the exception. Baby steps, if you will. Given enough time, even baby steps cover a long stretch, until they've far outpaced the rule itself.

Kashmir Hill focused on the split which has now emerged between the state courts in California and Ohio, and predicted that this issue will someday reach the Supreme Court:

As a place to live, California has a lot going for it: the Pacific Ocean, pleasant weather, celeb spottings. But if you’re concerned about the police perusing the contents of your smartphone without a warrant, you might prefer to spend your time further east in the Buckeye state.

The Supreme Courts of California and Ohio have come down on opposite sides of the question of whether police need a warrant to search an arrested person’s cellphone. California may be perceived as the tech savvy state thanks to playing host to Silicon Valley, but when it comes to how the law applies to technology, its analysis is rather simplistic.

....

Ohio’s court, on the other hand, ruled in December 2009 that a cell phone is more like a laptop, holding vast amounts of personal information and thus subject to greater privacy protections — namely, a warrant for searching it.

....

As a California deputy attorney general notes in the San Francisco Chronicle, this may well head to the Supreme Court for resolution. The California judges in the majority are ready for that to happen. They ended their opinion [PDF] with a nod to the Nine: “[U]nder the United States Supreme Court’s binding precedent, the warrantless search of defendant’s cell phone was valid. If, as the dissent asserts, the wisdom of the high court’s decisions ‘must be newly evaluated’ in light of modern technology (dis. opn. of Werdegar, J., post, at p. 1), then that reevaluation must be undertaken by the high court itself.”

Norm Pattis also discussed the likelihood that this issue will find its way to the High Court. He's not especially confident that the Court will see things differently than California's Supreme Court has, and suggested that decisions like these ensure that we "enjoy" the sort of government we consistently demand:

California from time to time tries to opt out of the republic. With an economy larger than that of many third world countries, the state's efforts to go its own way is perhaps understandable.

....

The Diaz decision is not a frontal assault on the Fourth Amendment. It is something more dangerous, and more insidious: By expanding the scope of an exception to the requirement that police officers get a warrant before search our papers and effects, the high court engaged in the sort of judicial activism that neuters a key component of the Bill of Rights. Shame on Justices Chin, Kennard, Baxter, Corrigan and George.

....

This is a specious and threadbare decision devoid of any meaningful conception of the need to limit the police power of the state. It is what one would expect of elected justices in a state whose citizens think the end of combatting crime justifies the means.

....

Of course, there is no telling what the federal Supreme Court will make of this case. I fear it will endorse the California court's conservative judicial activism by blessing the expansion of this exception to the requirement that police officers get a warrant before searching our papers and effects. Indeed, I fear far more.

The seminal case regarding what limits are to be placed on police officers conducting searches arose in response to the search of a now-antiquated piece of technology: the pay phone situated in a phone booth. In the Katz decision, the Court held that in order for the Fourth Amendment to apply, a person had to assert a right to privacy that was both honestly held, and one that the rest of society was prepared to respect. Recall that the Fourth Amendment does not bar all searches, only unreasonable searches. In the case of phone booths, the court held there was no expectation of privacy society as a whole was prepared to respect, no matter what an individual caller expected.

....

It would be an easy matter to apply this sort of reasoning to cell phones, and I fear the Court may tilt in that direction when it decides Diaz.

With more and more conduct criminalized, police becoming increasingly belligerent and petty, and the courts ever-more-willing to sanction any governmental action, however unreasonable, I've calculated the possibility that one day I will be arrested for something. I put it somewhere beyond "possibility" and this side of "likelihood". I'm a generally law-abiding person, but I am also a rational person and the patchwork of laws and arbitrariness of police conduct with which we're all faced is irrational. Far from being a framework by which we can define and maintain civilization, the law has become a lottery in which none of us wants to be selected. I wonder if my day is coming.

My mobile phone has (for what it's worth) a password protecting it because the courts will not. If the police, not bothering to seek a warrant, want to know my password, I'll tell them it's 1-2-3-4-5 just to hear the inquiring officer exclaim that that's the combination to his luggage. When that password doesn't grant them access to all of the names, numbers, e-mails, and other data on my mobile, I expect that they'll make suffer for it in big ways and small.

It'll be worth it to speak Spaceballs to power.

As the bulk of my day-to-day work involves the drafting (and redrafting, ad nauseum) of contract language, I've found Ken Adams' guidance indispensable over the years, first at his Adams Drafting blog and more recently at The Koncise Drafter. This week, he discussed best practices for drafting indemnification clauses in nondisclosure agreements:

Indemnification can be helpful in two ways. First, it allows you to replace a regime of contract claims with something more customized. For example, indemnification can help a party more likely to be subject to a claim by allowing it to specify time limits for bringing claims and put caps on liability. Second, indemnification can help a party more likely to bring a claim by, among other things, allowing it to bring in deep pockets and allowing it to provide a remedy for losses caused by nonparties.

I discussed the role of indemnification in [an] August 2009 AdamsDrafting blog post. What prompted me to write that post was the sense that drafters are too quick to throw indemnification provisions into a contract without considering whether a contract cause of action would be adequate.

That excessive use of indemnification may be what has prompted the resistance to indemnification that I’m now encountering. But I think we’re at risk of throwing the baby out with the bathwater. For example, it’s perhaps unhelpful to say that indemnification provisions don’t belong in confidentiality agreements. That’s like saying that representations don’t belong in confidentiality agreements. Instead, you have to look at how indemnification provisions are used.

Last week, Charon QC wrote a monumental Blawg Review focusing on legal blogging in the United Kingdom particularly. Those Brits are masters of the epic legal blogging round-up, it seems. This past week, Paul Hajeck offered an impressive survey of the state of affairs across the pond, collecting dozens of UK legal blogs. He wrote that in Britain, "legal blogging is slowly coming of age in a much wider business sense" and the review he offers supports that. Amongst the many blogs and bloggers linked are a number of my personal favorites (in addition to the aforementioned Charon), including David Allen Green, John Bolch, Carl Gardner, Brian Inkster, and BabyBarista (Tim Kevan).

Finally this week, Antonin Pribetic offered an impressive analysis of differing American and Canadian perspectives on international corporate liability issues. He remarked on Twitter that "tl;dr is an appropriate and welcome comment." "tl;dr" is internetese for "too long; didn't read"; in my case, "tl;tr;fm;si;fs" — "too long; tried reading; failed miserably; skimmed it; felt shame" — would be more apt. The interest was willing but the intellect was weak, as it were. Still, as I've followed various bloggers' ongoing discussions of human rights issues under Canadian law, I was glad for his explanation of the basis for their jurisdiction over such issues. Recently, Pribetic challenged his fellow Canadian legal bloggers to discuss international legal issues more frequently and substantively; he's certainly not shy to lead the way.

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