Peremptory challenges to judges?

Windypundit makes a good case for this idea. See Striking Judges - Another Radical Idea for Criminal Justice Reform.

One 2L’s take on how to fix the legal profession

The ABA Journal reported in Why Associates Leave is Clear, But What Would Lure Them to Stay? that up to 80 percent of BIGLAW associates leave within the first five years of employment.

A reader identified only as “Chicago 2L” responded:

I’ll tell you why these firms are having the problems they are having:

They hire only the privileged top graduates of elite law schools. Many of these people have never worked a day in their lives, and although a starting salary of 160,000 dollars sounds mighty fine to them, the reality of the hard work soon puts them off. They pay off their loans and move on to a lighter workload….

How to remedy this (in my opinion): Instead of hiring solely the top academic performers from Top 14 Law Schools, look a little lower down the tiers and look longer at previous work experience or other outside influencing factors. A student who may have been only top 25% academically but graduated from a four-year part time program while holding down a full-time job and possibly maintaining a family will not only fully understand the value of a hard day’s work (and that 160k starting salary) but might also have useful information and abilities gained from previous experiences in the work force.

An interesting take. My law school experience, post law school educational experience, and law teaching experience supports this theory.

Subpoena sleaze

A lawyer files a personal injury suit arising from vaccine use and autism. A blogger writes about the subject and criticizes the plaintiff’s attorney. The plaintiff’s attorney issues a subpoena demanding the following:

all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com“ – including but not limited to material mentioning the plaintiffs – and the names of all persons “helping, paying or facilitating in any fashion” my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis® and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any “religious groups (Muslim or otherwise), or individuals with religious affiliations,” and any other “concerned individuals. (source)

The blogger fought back by filing a masterfully written (for a pro-se party) motion to quash. I’m guessing that she had some help, or maybe she’s just a natural. Her motion describes the subpoena as “unconstitutional, unreasonable, irrelevant, excessive, invasive, burdensome, frivolous, and clearly retaliatory” (source).

I love that she brought in the journalist privilege angle.

The materials and information demanded in the subpoena are subject to the journalist’s privilege. Although I am unaffiliated with a traditional news organization, and am not compensated for my work except to the extent described above, I am a de facto citizen-journalist regularly engaged in the public dissemination of news and information, and the promotion of discourse and advocacy regarding issues of national importance. See Von Bulow v. Von Bulow, 811 F.2d 136 (“[A]n individual successfully may assert the journalist’s privilege if he is involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.”). As such, I am entitled to maintain the confidentiality of my work product and information sources. (source)

Even better, she makes it clear that she is not going to take this lying down.

The subpoena was not issued in good faith because its manifest purpose is not to elicit information relevant to determining Bayer’s liability for Wesley Sykes’ medical and developmental problems, but to indulge his parents’ and their attorney’s curiosity about my motivations and associations; to aggressively communicate their suspicion that I am not merely a fellow citizen who openly, intelligently and conscientiously disagrees with their public statements and actions, but a covert agent of the government, the pharmaceutical industry, or some other hidden force; to disrupt my relationships with my associates and news sources; and to intimidate, harass and retaliate against me for exercising my constitutional right to report and express opinions about matters of widespread public interest in which plaintiffs and plaintiffs’ counsel are involved. These are not legitimate reasons to invoke the judicial subpoena power. Indeed, in so doing, Mr. Shoemaker has engaged in a sanctionable abuse of his authority as an officer of the court. (source)

Hopefully the judge will be one of the rare few with the chram to actually make Rule 11 mean something.

Eric Turkewitz writes about the issue here, and I couldn’t have said it better myself.

Seven sixteenths of one inch… Maddox meets contract drafting

One of my favorite lines from Maddox is this:

Seven sixteenths of one inch: That’s the distance you’d have to move your pinky in order to not sound like an idiot. I know the burden of pressing shift to capitalize is a great one, but c’mon, you can do better than that. I used to type emails in caps like yours, but then I decided that I didn’t want a job mixing concrete.

I send this picture to almost everyone who sends me an email in ALL CAPS. I urge you to do the same.

So what does this have to do with contract drafting?

“Words formed with capital letters are monotonous rectangles that offer few distinctive shapes to catch the eye.” It is contrary to the rules of typography. (Credit: Legal Frontier)

Minor Wisdom has this take on it:

MANY LAWYERS THINK THAT THE BEST WAY TO EMPHASIZE A WRITTEN PASSAGE IS TO PUT IT IN ALL CAPITAL LETTERS. THESE LAWYERS ARE MISGUIDED. WRITING A PASSAGE IN ALL CAPITAL LETTERS MAKES IT HARDER TO READ. ALSO IT MAKES THE READERS UNCOMFORTABLE; THEY GET THE FEELING THAT THE WRITER IS SHOUTING AT THEM. AND NO ONE LIKES TO BE SHOUTED AT.

IF YOU DON’T BELIEVE THE PRECEDING PARAGRAPH, ASK YOURSELF HOW MUCH YOU ARE ENJOYING READING THIS POST. ASK YOURSELF WHETHER THIS POST LOOKS BETTER OR WORSE THAN THE OTHER POSTS ON THIS BLOG. ASK YOURSELF WHETHER THIS POST IS EASIER TO READ OR HARDER TO READ THAN THE OTHER POSTS. (source)

If you still don’t believe, trust the experts:

• This article by Ruth Anne Robbins, page 115 (PDF page 10)
• This advice by the U.S. Seventh Circuit, bottom of page 6
• This page from the Web Style Guide
• Dictionary of Modern Legal Usage, page 130
• Garner’s Modern American Usage, page 129
• The Redbook, § 2.19

If you want to go to the wellspring of contract drafting knowledge, Adams Drafting is the shiznit. In this post, he debunks the fairy tale that some laws require the use of all caps, and gives us some great dicta on the subject.

And Amercian General Finance, Inc. v. Bassett, 285 F.3d 882 (9th Cir. 2002), debunked the notion that text needs to be in all caps to be conspicuous. I particularly like this sentence from that case: “Lawyers who think their caps lock keys are instant ‘make conspicuous’ buttons are deluded.”

So, you can listen to Adams, the “experts,” the 9th Circuit, or anyone else you want. But, I still think that Maddox articulates the point best:

Seven sixteenths of one inch: That’s the distance you’d have to move your pinky in order to not sound like an idiot.

“Do you really think you could stand upright in the winds that would blow then?”

Ht to Althouse

Wikileaks Judge Does a 180

Last week, I reported on the terrible decision shutting down the Wikileaks website.

I just got this press release from the RCFP.

The whistleblower site Wikileaks.org may resume its U.S. operation following a hearing in California federal court today, where Judge Jeffrey S. White dissolved a previous order that required the site to be taken offline and indicated he would not approve a second order prohibiting the site’s publication.

The Feb. 15 orders had required domain name service provider Dynadot to cut off access to the Wikileaks site, disabling the Web address. A Swiss bank had asked the court to require the site to be taken down, arguing it disclosed private banking records.

Acting as a friend of the court, The Reporters Committee for Freedom of the Press and several other media organizations asked the judge earlier this week to take notice of the prior restraint that occurred as a result of those orders. Wikileaks had not appeared in court to defend against charges by the bank that it had improperly posted private information and no First Amendment concerns were raised before the Court.

White’s order of today dissolved the injunction that had prohibited Dynadot from allowing Wikileaks.org to be accessible. It also “tentatively” denied the bank’s request for an order that would keep Wikileaks from independently publishing itself online.

“It’s not very often a federal judge does a 180 degree turn in a case and dissolves an order,” said Reporters Committee Executive Director Lucy A. Dalglish. “But we’re very pleased the judge recognized the constitutional implications in this prior restraint.”

White is expected to issue a full opinion on the matter in the near future. The media coalition’s brief in the case can be found here.

What is it with judges and humility lately? Last week I reported on a Vermont judge that made a little reflexive move that happened to be trampling all over the First Amendment, yet he showed the wisdom and humility to reverse himself after deeper reflection. Now Judge White does it today in the Wikileaks case. Is Judicial humility making a comeback? (debut?)

I’m really not trying to be snarky. I honestly think that the highest form of ethics and thought is when one can admit one’s mistakes and then correct them. Accordingly, these two judges receive my highest praise and most heart-felt respect. Unfortunately, my experience with most people, especially those on the public payroll, is that they would rather tear out their own eyes than admit a mistake.

These judges may just be responsible for restoring my faith in humanity. Meh, I’m sure that Scalia will manage to fuck that up some time soon… but enjoy it while it lasts.

Should a Child Molester Get His Law License Back?

I’m not sure how I feel about this

Child molester pleads to practice law

On one hand, I really can’t see why he should get his license back.

On the other hand, turning someone into a man with nothing to lose is a sure fire way to guarantee that he does something we won’t like.

In Copyright Flap, Dozier Digs Deeper

I was a little flabbergasted by how the law firm that claimed that copyright law prohibits the republication of a cease and desist letter. That issue discussed here: Copyright vs. Free Speech in Cease and Desist Letters.

Watching the firm keep on digging is starting to feel like watching a train wreck.

One commenter said:

Dozier, the more you post the more paranoid you appear… [i]n the end, you’ll make a fool out of yourself and your law firm. (source)

Agreed. But lets unpack the arguments:

In criticizing “liberal ‘free speech’ types” (his words) who believe in fair use, John Dozier gives us this mind boggling twist:

Copyright and Fair Use in Demand Letters

Earlier Post is updated with links to other sources on the subject and additional analysis.

Copyright vs. Free Speech in Cease and Desist Letters

I have seen a lot of laughable cease and desist letters in my career. Usually they come to my attention when the victim of an overreaching cease and desist posts the letters online. The theory behind this practice is that when a small and poorly funded cyber-critic gets an overreaching and bullying cease and desist letter, the best way to react is to share it with everybody. Just as strong sunlight will dry up mold and cause roaches to scurry for the corners, exposing unethically overreaching cease and desist letters to public criticism and comment will make lawyers think twice about how they wield their letterhead — and will make litigants think more carefully about how they choose their legal representation.