Defenders of the prosecution seem to think that anyone charged with a felony must somehow deserve punishment. That idea can only be sustained without actual exposure to the legal system. Yes, most of the time prosecutors do chase actual wrongdoers, but today our criminal laws are so expansive that most people of any vigor and spirit can be found to violate them in some way. Basically, under American law, anyone interesting is a felon. The prosecutors, not the law, decide who deserves punishment.
Tim Wu, former professor of mine at Columbia Law, nailing it in the New Yorker

Source: newyorker.com

My Office, Today

  • (Partner walks into my office.) Partner: What are you working on?
  • Me: (3 seconds of silence) Summarizing [law] for Other Partner.
  • Partner: Oh, you look frazzled.
  • Me: (3 seconds of silence) Umm, I guess that's just what I look like when I'm thinking.

Modern legal research tools give attorneys access to cases from 1857!

But I’ll be damned to the third—no, fourth—circle of Hades if I can figure out what they mean:

So far as the contract proved relates to the prosecution of suits for the defendant, in the legal establishment of the rights intended to be purchased, and contemplates a participation in the advantage or profit to accrue from the purchase of the titles, and maintaining them at law, whether treated as a contingent fee for professional services, or as a part of the general undertaking to purchase, prosecute suits, and share in the profits, we can not discover that it is tainted with crime, or against the provisions of any statute, or that it contravenes any principle of public policy under our law.

Newkirk v. Cone, 18 Ill. 449, 453 (1857).

Side bar: There’s a comment to be made here about the de/evolution of language over time and whether my grandchildren will be able to understand my mellifluous writings.  But IDK, whatever, Imma take a nap bc I’m wicked tired.

This, if anything, only leads me to the ineluctable conclusion that what is sauce for the goose is sauce for the gander.
Global Telesystems, Inc. v. KPNQwest, N.V., 151 F. Supp. 2d 478, 483 (S.D.N.Y. 2001) 
I’m just going to put this here in case I ever need support on the goose v. gander sauce issue.
FYI: This is a real decision by a real judge in the real as ballz State of New York.  

Define “Victory”?

Lawyers have a way with words.  ”A way” meaning “a propensity for stretching and manipulating their meaning with reckless abandon.”  So it was with glee that I stumbled onto this gem from Skadden Arps’ website: 

Skadden secured three recent victories in cases involving mortgage-backed securities. On August 14, 2012, we obtained an interlocutory appeal to the U.S. Court of Appeals for the Second Circuit for UBS in a suit brought against it (and 16 other banks) by the Federal Housing Finance Agency seeking to recover billions of dollars in alleged losses by Fannie Mae and Freddie Mac from investments in mortgage-backed securities.

Lawyer readers may notice this right away, but let me point out that Skadden is bragging about their ‘victory’ in getting an appeal accepted for the case that they lost.  Picture me slow clapping.  Ballsy spin, bros.  

Source: skadden.com

iggymogo: waterman12053: Cuomo avoids pesky FOIL law for his emails:  He has none ALBANY — There’s one phrase Gov. Cuomo never hears: “You’ve got mail!” Cuomo refuses to communicate with his staff by email, sources close to the governor revealed to the Daily News. If aides can’t talk in person or by phone, they are told to use the BlackBerry PIN-to-PIN messaging system — a function that leaves no lasting trail because it bypasses data-saving email servers. It allows users to connect directly through their devices using Personal Identification Numbers. Maybe this is the defense attorney in me, but I read this and thought “Cuomo has good lawyers.”  One can make an argument that he’s being shady, but it doesn’t sound like he’s coloring outside the lines.  In fact, it sounds like he’s tracing directly within them.  If we as NY citizens have a problem with it, well, change the picture.  I’d support that.
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iggymogo:

waterman12053:

Cuomo avoids pesky FOIL law for his emails:  He has none

ALBANY — There’s one phrase Gov. Cuomo never hears: “You’ve got mail!”

Cuomo refuses to communicate with his staff by email, sources close to the governor revealed to the Daily News.

If aides can’t talk in person or by phone, they are told to use the BlackBerry PIN-to-PIN messaging system — a function that leaves no lasting trail because it bypasses data-saving email servers. It allows users to connect directly through their devices using Personal Identification Numbers.

Maybe this is the defense attorney in me, but I read this and thought “Cuomo has good lawyers.”  One can make an argument that he’s being shady, but it doesn’t sound like he’s coloring outside the lines.  In fact, it sounds like he’s tracing directly within them.  If we as NY citizens have a problem with it, well, change the picture.  I’d support that.

(via iggymogo-deactivated20120925)

Source: waterman12053

theatlantic: America’s English-Style Legal System Evolved to Conceal Truth, Not Reveal It In the Anglo-American common law system, lawyers are encouraged to obfuscate the truth and use sophistry to besmirch the integrity of honest witnesses. In the U.S., it is estimated that upwards of four percent of the prison population is innocent (a staggering 80,000 people, more than double the prison population of Canada) — with some on death row — but more than half of guilty defendants get off. […] Read more.[Image: Reuters] This is the single stupidest article about the legal system I’ve read in weeks, and I troll Above the Law regularly.  I understand the article’s meant to be international, but I’m only licensed to practice law in the US, so I’ll confine my comments to this continent.  One could only wish that the Aussie author, Evan, would have done the same. Warning: Lawyer Rant Ahead Now, is the American legal system perfect?  Of course not.  Far from it and perhaps closer to broken irrevocably than perfection.  But this article is (1) structured idiotically so that it’s hard to even understand the arguments, (2) fails to acknowledge why some of the allegedly negative protections are in place, (3) treats the US, UK and Australian legal systems like a monolithic entity, and (4) who the fuck is Justice Russell Fox and why should I be moved by his profundity that “truth walks with justice”?  (Answer: Former Australian justice.  I’m sorry, but it’s Oliver Wendell Holmes or GTFO, blogger.)  For example, Evan finds fault with the fact that we have a 5th Amendment right against self-incrimination.   Over the last 200 years, judges have invented myriad truth-defeating devices, including a few that conceal important evidence.  Here are a few:…The “right” of silence. The rule against self-incrimination is based on a lie by the first legal academic, a charlatan named William Blackstone. It’s estimated to get off about a quarter of guilty defendants. There’s so much wrong with these statements that I can barely respond.  But here are some of my thoughts: The right against self-incrimination is contained in the 5th Amendment to the US Constitution.  Amendments are passed by Congress and then ratified by 3/4ths of the states.  Judges have literally nothing to do with it.   It was passed 221 years ago.  This is actually the closest Evan comes to being right, so he gets a pass.   Evan put the “right” to silence in scare quotes.  Really?  Scare quotes around the word “right”?  It’s in the motherfucking Bill of goddamned Rights, so I think it’s safe to say it’s a right.  Or does Evan think that we have a “right” to the freedom of speech or religion too?  Using scare quotes here indicates a deep disrespect for one of the most fundamental documents protecting American citizens in their pursuit of “life, liberty, and the pursuit of happiness.”  But Evan might not have head of that phrase because it’s in the Declaration of Independence.   A lie by the charlatan legal scholar William Blackstone?  The only verifiably correct part of that statement is that there was a famous legal scholar named William Blackstone.  But he’s a liar and a charlatan too?  We have no way of knowing because Evan provides absolutely no support for his statement, and my background knowledge and perusal of his wiki page reveals none of this scandal.  Cool, I guess we’re just name calling now.  That’s about the level of this “journalism.”  See, Evan, you’re not the only one who can use scare quotes.   25% of guilty defendants get off because they don’t walk into their local constabulary and say “Cheerio!  I just offed my wife with a toaster because she was making me bloomin’ angry!”  OK, maybe.  Then again, in true Evan fashion, you’re provided no support for this fact (and I can’t find any online), but it’s about 10 steps up from the mudslinging at ole Billy Blackstone.  So I’ll just pretend it’s true.  And this is where Evan is really, really wrong—in substance.  The previous errors are just symptoms of the terminal disease that is complete cranial ineptitude.  What’s the alternative to people not having a right against self-incrimination?  People are forced to confess.  Who?  How do we know only the guilty people are confessing?  How are you going to “make” them confess?  Torture?  Sure, because scientists have shown that nothing but the God’s honest truth comes out when you waterboard someone.  What if someone still refuses?  Are you going to assume they’re guilty because they don’t speak?  What if they say they’re innocent?  I could go on, but I’ll just sum up by saying that removing one’s right against self-incrimination would not result in more “truth” in this world.  It would result in more injustice, false convictions, and questionable police behavior.  Would it be great if we could look into someone’s soul and just know they are guilty or innocent?  Yes, call me when that technology comes online.  Until then, let’s work on reforming the system we have, not blowing up its foundations. Finally, please note that these are criticisms about just TWO LINES of his article.  If I were to address every instance of inaccuracy or idiocy, the length of my post would take down Tumblr’s servers.  Not that it takes much to take down Tumblr’s servers, but still.  In closing, I’d like to reiterate that I love The Atlantic as a publication, but this is some of the worst writing and reporting I’ve ever seen on a reputable new site.  Fox News excepted, of course, ad infinitum.   
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theatlantic:

America’s English-Style Legal System Evolved to Conceal Truth, Not Reveal It

In the Anglo-American common law system, lawyers are encouraged to obfuscate the truth and use sophistry to besmirch the integrity of honest witnesses. In the U.S., it is estimated that upwards of four percent of the prison population is innocent (a staggering 80,000 people, more than double the prison population of Canada) — with some on death row — but more than half of guilty defendants get off. […]

Read more.[Image: Reuters]

This is the single stupidest article about the legal system I’ve read in weeks, and I troll Above the Law regularly.  I understand the article’s meant to be international, but I’m only licensed to practice law in the US, so I’ll confine my comments to this continent.  One could only wish that the Aussie author, Evan, would have done the same.

Warning: Lawyer Rant Ahead

Now, is the American legal system perfect?  Of course not.  Far from it and perhaps closer to broken irrevocably than perfection.  But this article is (1) structured idiotically so that it’s hard to even understand the arguments, (2) fails to acknowledge why some of the allegedly negative protections are in place, (3) treats the US, UK and Australian legal systems like a monolithic entity, and (4) who the fuck is Justice Russell Fox and why should I be moved by his profundity that “truth walks with justice”?  (Answer: Former Australian justice.  I’m sorry, but it’s Oliver Wendell Holmes or GTFO, blogger.) 

For example, Evan finds fault with the fact that we have a 5th Amendment right against self-incrimination.  

Over the last 200 years, judges have invented myriad truth-defeating devices, including a few that conceal important evidence.  Here are a few:…The “right” of silence. The rule against self-incrimination is based on a lie by the first legal academic, a charlatan named William Blackstone. It’s estimated to get off about a quarter of guilty defendants.

There’s so much wrong with these statements that I can barely respond.  But here are some of my thoughts:

  1. The right against self-incrimination is contained in the 5th Amendment to the US Constitution.  Amendments are passed by Congress and then ratified by 3/4ths of the states.  Judges have literally nothing to do with it.  
  2. It was passed 221 years ago.  This is actually the closest Evan comes to being right, so he gets a pass.  
  3. Evan put the “right” to silence in scare quotes.  Really?  Scare quotes around the word “right”?  It’s in the motherfucking Bill of goddamned Rights, so I think it’s safe to say it’s a right.  Or does Evan think that we have a “right” to the freedom of speech or religion too?  Using scare quotes here indicates a deep disrespect for one of the most fundamental documents protecting American citizens in their pursuit of “life, liberty, and the pursuit of happiness.”  But Evan might not have head of that phrase because it’s in the Declaration of Independence.  
  4. A lie by the charlatan legal scholar William Blackstone?  The only verifiably correct part of that statement is that there was a famous legal scholar named William Blackstone.  But he’s a liar and a charlatan too?  We have no way of knowing because Evan provides absolutely no support for his statement, and my background knowledge and perusal of his wiki page reveals none of this scandal.  Cool, I guess we’re just name calling now.  That’s about the level of this “journalism.”  See, Evan, you’re not the only one who can use scare quotes.  
  5. 25% of guilty defendants get off because they don’t walk into their local constabulary and say “Cheerio!  I just offed my wife with a toaster because she was making me bloomin’ angry!”  OK, maybe.  Then again, in true Evan fashion, you’re provided no support for this fact (and I can’t find any online), but it’s about 10 steps up from the mudslinging at ole Billy Blackstone.  So I’ll just pretend it’s true. 
  6. And this is where Evan is really, really wrong—in substance.  The previous errors are just symptoms of the terminal disease that is complete cranial ineptitude.  What’s the alternative to people not having a right against self-incrimination?  People are forced to confess.  Who?  How do we know only the guilty people are confessing?  How are you going to “make” them confess?  Torture?  Sure, because scientists have shown that nothing but the God’s honest truth comes out when you waterboard someone.  What if someone still refuses?  Are you going to assume they’re guilty because they don’t speak?  What if they say they’re innocent?  I could go on, but I’ll just sum up by saying that removing one’s right against self-incrimination would not result in more “truth” in this world.  It would result in more injustice, false convictions, and questionable police behavior.  Would it be great if we could look into someone’s soul and just know they are guilty or innocent?  Yes, call me when that technology comes online.  Until then, let’s work on reforming the system we have, not blowing up its foundations.

Finally, please note that these are criticisms about just TWO LINES of his article.  If I were to address every instance of inaccuracy or idiocy, the length of my post would take down Tumblr’s servers.  Not that it takes much to take down Tumblr’s servers, but still.  In closing, I’d like to reiterate that I love The Atlantic as a publication, but this is some of the worst writing and reporting I’ve ever seen on a reputable new site.  Fox News excepted, of course, ad infinitum.   

DealBook: Gupta Trial Judge Reprimands Law Student Spectator

Judge Jed S. Rakoff asked a law student attending the insider trading trial of Rajat K. Gupta to stop sending him letters about the case.

Newsflash: The Honorable Jed Rakoff is an ass.  Brilliant, sure, whatever.  If he really wanted to live up to his honorific, he could have had one of his clerks take five minutes to write this poor person a letter expressing the same sentiment and giving some sort of ‘good luck and god speed in your legal career.’  Instead, he had the person escorted out of the room by court personnel.  

Charged: One count of douchbaggery and one for conduct unbecoming of an Article III jurist.

Source: The New York Times

Lessig Blog, v2: Commencement Address to Atlanta's John Marshall Law School

Lawrence Lessig has a Tumblr?  Auto-lawyer follow and reblog!  The link below is to a transcript of his recent commencement address, which is—of course—filled with excellent thoughts and turns of phrase, my favorite of which is quoted below.  But the whole thing is worth checking out.  

lessig:

I’ll believe corporations are persons when Texas executes one.

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